Fridays With Rogers Partners

At our weekly firm meeting, Chris MacDonald presented the case of Lamb v. Co-Operators General Insurance Co., 2020 ONSC 4955. This case concerned a motion brought by Co-Operators for summary judgment involving an unidentified vehicle claim by the plaintiff, Lamb. 

The court considered whether there was a triable issue on whether the plaintiff took reasonable steps to identify the driver or owner of the alleged unidentified vehicle that struck her.

Section 265(2) of the Insurance Act defines an “unidentified automobile” as meaning “an automobile with respect to which the identity of either the owner or driver cannot be ascertained”.

The accident occurred when Ms. Lamb, on her electric scooter in a plaza parking lot, was struck by a vehicle. She fell from her scooter and was injured, all of which was observed by her husband and another witness. They attended to her, while the alleged driver examined his vehicle. They then brought her into a pub in the plaza and returned outside five minutes later to find the driver gone.

The plaintiff and her husband did not call 911. They stated that they were in shock. They drove home and attended at the hospital the following day. The police were only called, according to the plaintiff and her husband, one or two weeks later, but no report was generated as it was “too late”.

The court referred to the decision of Leggett v.  ICBC (1992) 72 BCLR (2d) 201 (C.A.), leave to appeal to SCC refused, which outlined the following test:

The test seems to me to be subjective in the sense that the claimant must know that the vehicle has been in an accident and must have been in such a position and condition that it would be reasonable for the claimant to discover and record the appropriate information. But the claimant cannot be heard to say: “I acted reasonably in not taking the trouble to find out”.

…

The question, in my view, is not whether Mr. Leggett acted reasonably in deciding initially to abandon whatever rights he had, but whether he acted as a reasonable person would have acted who wanted to protect those rights, whatever they might prove to be. 

In the case at bar, the court found there was uncontroverted evidence that Ms. Lamb suffered a significant injury in the accident: a fractured bone in her knee. She was in shock and “understandably her unavoidable focus was on her condition”.

Based on these facts, the court concluded that Ms. Lamb did not act “unreasonably by not prioritizing obtaining the driver’s identifying information or recording his license plate” given she was “not in a condition to collect pertinent information”.

The court also considered the actions of the plaintiff’s husband who tended to his wife instead of immediately attempting to collect information from the driver. Justice Stribopoulos stated, “I am hard pressed to conclude that a reasonable person in Mr. Lamb‘s circumstances would have done anything differently”.

Accordingly, the court concluded that it was far from satisfied “there is no triable issue concerning the reasonableness of Ms. Lamb’s failure to identify the driver who struck her or record the license plate of his vehicle.” The motion for summary judgment was therefore dismissed, with costs.

Although not referred to in the decision, there are the additional criteria that a plaintiff must satsify to be entitled to uninsured or underinsured coverage in an accident involving an unidentified automobile:

• Section 5.3.5 of OAP 1 states: “the insured person or their representative must report the accident within 24 hours, or, if unable, as soon as possible after that, to a police officer or similar authority”
• Section 5.3.5 of OAP 1 also requires an insured to provide the insurer with a written statement within 30 days of the accident, or, if unable, as soon as possible after that, giving a detailed description of what happened.
• Section 1.5 of OPCF 44R requires the insured’s evidence of an unidentified automobile to be corroborated by “other material evidence”, in particular, independent witness evidence from other than a spouse or dependent relative, or physical evidence indicating the involvement of an unidentified automobile.

In summary, in a claim involving an unidentified automobile, the plaintiff has the onus to prove that the identity of the driver and the owner of the motor vehicle are not ascertainable.

However, this requirement is not strictly interpreted, but instead means that the identity of the driver and owner “could not have been ascertained had the claimant made all reasonable efforts having regard to the plaintiff’s position, to discover them”. The plaintiff’s medical condition following the accident is a relevant consideration.

The court attempts to strike a balance between protecting against fraudulent claims and ensuring plaintiffs with legitimate claims are compensated.