Canada: "Other Material Evidence" Of Involvement Of Unidentified Vehicle: For Ontario Court, Evidence Of Otherness Is Less Material

The recent Ontario Superior Court decision of Azzopardi v. John Doe and The Personal Insurance Company ["Azzopardi"] appears to lower the threshold for the types of corroborative evidence that Ontario courts will accept when considering a party's entitlement to underinsured coverage in accidents involving unidentified vehicles.

Underinsured motorist coverage where an unidentified motorist is involved

Section 265 of the Ontario Insurance Act provides coverage for injuries caused by accidents involving uninsured and unidentified drivers. Under section 265, where the other driver is uninsured, or where the identity of the at-fault driver is unknown, the claimant's own insurer steps into the shoes of the uninsured or unidentified driver and provides coverage up to the statutory minimum limits of $200,000.00. 

Section 265 coverage is different from underinsured claims for inadequately insured drivers. Here, coverage is available through optional insurance coverage known as the OPCF 44R.  This provides compensation from a claimant's own insurer up to the limits of the claimant's third-party liability coverage where the claimant, through no fault of her own, is involved in an automobile accident with someone who carries less insurance, no insurance, or with an unidentified vehicle.

The OPCF 44R is engaged where an at fault driver's policy has insufficient limits to fully compensate the claimant for her damages. It will pay the difference in situations where the claimant's OPCF 44R coverage is greater than the at-fault driver's liability policy limits. Or, if an unidentified motorist causes the crash, it will pay the difference between the claimant's OPCF 44R coverage and the $200,000.00 limit that applies under section 265.

In order to claim the benefit of the OPCF 44R coverage in accidents involving unidentified vehicles, the claimant must corroborate the involvement of the unidentified vehicle with "other material evidence". The OPCF 44R defines other material evidence as:

The issue in Azzopardi was whether there was any "physical evidence indicating the involvement of an unidentified automobile".

Motorcycle cut off by unidentified vehicle and crashes, but is there physical evidence?

In August, 2011, the plaintiff, Mr. Azzopardi, was driving his motorcycle on a city street, when he was cut off by an unidentified vehicle. He swerved and braked to avoid colliding with the vehicle, and, in doing so, put his left foot down on the pavement. As a result, he sustained a significant fracture to his leg.

No evidence was obtained from witnesses. There was no information about the unidentified vehicle, and because the vehicles did not collide, there was no physical evidence of a collision

Following the accident, Mr. Azzopardi went to the hospital, where the emergency room doctor noted that he was a motorcyclist involved in an accident that occurred when he was side-swiped by another vehicle, and had planted his left foot on the ground, as a result of which he sustained a serious fracture of his left tibia. The doctor described the injuries as being consistent with the mechanism of the accident.

Police did police did not attend the scene to investigate until several days after the accident; however, on the Motor Vehicle Accident Report they indicated the involvement of an unidentified vehicle, and also completed a "fail to remain" report.

Plaintiff sues own insurer; insurer moves for summary judgment

Mr. Azzopardi commenced an action against the unknown operator of the unidentified vehicle that allegedly cut him off ("John Doe"), and his own insurer, The Personal. He sued The Personal under the unidentified motorist provisions of section 265 of the Insurance Act, and under the underinsured provisions of the OPCF 44R.

The Personal brought a motion for partial summary judgment, seeking to dismiss Mr. Azzopardi's claim for any damages over the basic $200,000.00 available to any claimant injured by an unidentified motorist. The Personal argued that Mr. Azzapardi was not able to claim his optional OPCF 44R protection because he could not corroborate the involvement of the unidentified vehicle with "other material evidence". In particular, he could not furnish "physical evidence of the involvement of an unidentified automobile" under section 1.5(c) of the OPCF 44R. As such, so The Personal argued, there was no genuine issue requiring a trial.

Judge holds that emergency room report may constitute"physical evidence"

Justice Firestone noted that the section does not, by its wording, place limitations and restrictions on what constitutes "physical evidence", and held that plaintiffs need not provide evidence in the form of skid marks or proof of contact with the unidentified vehicle in order for the OPCF 44R to be engaged.

According to Justice Firestone, what was required from Mr. Azzopardi was physical evidence, extrinsic to his self-report that was consistent with his story that he was cut off by an unidentified driver, which required him to take evasive action by braking, and making contact with the asphalt with his left leg.

Justice Firestone agreed with Featherstone v. John Doe, where the court found that by its very wording, section 1.5(d)(ii) requires only physical evidence "indicating the involvement," and not "proving the involvement", of another vehicle. [emphasis added]

Thus armed with a broader definition of "physical evidence", and a lower threshold of "indicating" as opposed to "proving" involvement of an unidentified vehicle, Justice Firestone held that the consultation report of the doctor who examined Mr. Azzopardi at the hospital following the accident, could, if accepted by a jury, constitute "physical evidence indicating the involvement of an unidentified automobile" consistent with subsections 1.5(c) and (d)(ii) of the OPCF 44R, as it provided a mechanism and type of injury that were unique to the case and confirmed by way of x-ray, that were consistent with Mr. Azzopardi's version of events of him braking and putting his foot down.

Justice Firestone held that there was a genuine issue requiring a trial in order to determine if the doctor's consultation report actually corroborated Mr. Azzopardi's evidence regarding the involvement of an unidentified vehicle, and dismissed The Personal's motion for partial summary judgment.

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