The Question of Coverage for Innocent Passengers in Stolen Vehicles: A Review of the 2023 Ontario Court of Appeal Decision in Burnham v Co-operators General Insurance Company

  • September 28, 2023
  • Thomas Russell, Stieber Berlach LLP


On August 25, 2014, Joshua Burnham was asleep in the back of a stolen pickup truck when it was involved in a motor vehicle accident, tragically killing the driver and front-seated passenger of the vehicle.[1] Arising out of this horrible situation was the question of who should cover the damages that Burnham sustained.[2] Two parties were potentially liable to Burnham:[3]

            (1) Co-operators General Insurance Company (Co-operators) as the insurer of the pickup truck

            (2) The Motor Vehicle Accident Claims Fund (The Fund)

To understand why this was the case requires some brief background information. First, every automobile insurance contract in Ontario is statutorily required to abide by the terms of the Ontario Automobile Policy (The Policy), under the Insurance Act.[4]

Under The Policy, Co-operators was potentially liable to Burnham as a passenger in the insured pickup truck.[5] Co-operators could be liable to Burnham because of something called “uninsured automobile coverage”, which is mandatory under The Policy.[6] The details of uninsured automobile coverage are not especially relevant to the issue in this case. It is enough to know that it presented a problem for Co-operators.

The big question was whether or not Burnham would be excluded from any coverage under The Policy because the pickup truck was stolen.[7] It should be noted that Burnham was adamant he did not know the pickup truck was stolen, and was innocent of any wrongdoing.[8] However, for the purpose of coverage under The Policy, it was not clear that it mattered whether Burnham was actually innocent.[9] If Burnham was found to be excluded from coverage, then The Fund would end up liable to Burnham for his damages.[10]