Fridays With Rogers Partners
At our weekly meeting, Michael Kryworuk discussed the court’s decision in Aditi v. Doe, 2022 ONSC 4049. Michael has written the following summary of the decision.
History of the Litigation
This case involved a dispute between a motorist and her insurer. The plaintiff, Ms. Aditi, was insured by Intact. The automobile policy provided $200,000 in basic coverage for damage caused by an uninsured or unidentified motorist. The plaintiff had also paid for optional additional coverage for uninsured or unidentified motorists totalling $1 million in an OPCF 44R Family Protection endorsement.
In October 2019, the plaintiff was driving on Highway 404. She attempted to change lanes because her lane was turning into a High-Occupancy-Vehicle Lane. As she was halfway through her change, she observed a black pickup truck moving into the same lane she was merging into. To avoid the collision, the plaintiff braked and swerved back into her original lane and collide with the centre guardrail. Meanwhile, the truck kept on going and did not stop.
A witness/bystander who was driving in a car in front of the plaintiff stopped at the scene to get out of his car to help the plaintiff. Later, the plaintiff called 911. On the recording of the 911 call, the witness/bystander was heard speaking in the background.
Sometime later an OPP officer attended the scene. The officer indicated that he spoke to the driver of the vehicle who stopped to help the plaintiff. The other driver confirmed the plaintiff’s version of events. However, the OPP officer did not record the witness/bystander’s identity or contact details because they could not help the OPP identify the black truck.
Later as the litigation progressed, a question arose as to whether the plaintiff could access the $1 million limit in the OPCF 44R Family Protection endorsement. The court specifically considered whether the inadmissible hearsay evidence of the witness/bystander was sufficient to establish coverage.
OPCF 44R Language
The OPCF 44R contains the following provisions:
(C) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant’s own evidence of the involvement of such automobile must be corroborated by other material evidence and
(D) “other material evidence” for the purposes of this section means:
(i) independent witness evidence, other than evidence of a spouse as defined in section 1.10 of this change form or a dependent relative as defined in section 1.2 of this change form; or
(ii) physical evidence indicating the involvement of an unidentified automobile [emphasis added].
Legal Overview
Justice Myers examined the proper interpretation of the OPCF 44R endorsement. In the Ontario Court of Appeal decision of Abarca v. Vargas, 2015 ONCA 4, the court made the following statements:
[39] Unlike uninsured automobile coverage, which is a statutory entitlement, underinsured automobile coverage is created by contract between the insurer and the insured. The OPCF 44R endorsement provides a back-up source of liability coverage and entitles the injured policyholder to claim against his or her own insurer for the compensatory damages he or she is “legally entitled to recover” from the inadequately insured, at-fault driver.[40] By buying underinsured automobile coverage from Economical Mutual, the Leivas were behaving as responsible motorists seeking to protect themselves and others. The corollary of the insurance principles at issue, particularly the objective of consumer protection, is that the Leivas should only be deprived of this coverage for the very gravest of reasons.[1]
His Honour also reviewed the jurisprudence on the purpose of the corroboration requirement in the OPCF 44R endorsement from the Court of Appeal’s decision in Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341:
[14] The purpose of the corroboration requirement in OPCF 44R is clear. Insurers, who draft these endorsements, see themselves at a disadvantage when a claimant asserts coverage based on the negligence of an unidentified driver. To compensate for this disadvantage, insurers provide extended coverage under OPCF 44R only where the claim is not based solely on the claimant’s evidence or on the claimant’s evidence supported by that of a spouse or dependent relative, both of whom would have a financial interest in the claimant accessing the OPCF 44R coverage. The corroboration requirement limits the scope of the insurer’s exposure, presumably to those cases where the corroborative evidence provides some comfort as to the validity of the claim [emphasis added].[2]
Analysis
Justice Myers addressed a potential procedural issue where the evidence at this stage establishes corroboration, but a trial judge later uses the same evidence to reject the plaintiff’s evidence about the accident. Such a result could suggest the possibility of overlapping or inconsistent decisions.
However, His Honour maintained that finding that the evidence was sufficiently corroborative to engage the OPCF 44R Endorsement is not inconsistent with a finding at trial that the plaintiff’s evidence is insufficient to establish liability of the John Doe defendant driver.
Justice Myers noted that, in the present case, counsel understood this risk and submitted that it was more important to the parties to know the applicable insurance limits than to protect against “a possibility of an outcome at a hypothetical trial that will occur in only a very small minority of cases”.
Next, Justice Myers reviewed the evidence of the witness/bystander and OPP officer. His Honour stated that the witness/bystander’s statement to the OPP officer was hearsay. Unless it was made admissible by an exception to the hearsay rule, the witness’s statement to the OPP officer could not be used by the plaintiff to prove that the unidentified black pick-up truck cut off the plaintiff.
Similarly, Justice Myers found that the principled exception to hearsay did not apply to the witness/bystander’s statement. His Honour pointed to the fact that the witness was travelling in front of the plaintiff’s car and so his ability to meaningfully observe a truck coming from behind and to the side of the plaintiff’s car was not particularly reliable.
However, Justice Myers held the OPP officer’s evidence that he spoke to the witness was not hearsay. Since the OPP officer had sworn to the conversation and had been cross-examined on it, he could testify to what he was told.
The fact that the witness told him a black pick-up truck was involved was not hearsay if it was used just for the purpose that the witness told the officer that a black pick-up truck cut off the plaintiff.
Next, His Honour turned to the main issue of whether the hearsay evidence of the witness was sufficient to meet the corroboration requirement in the OPCF 44R endorsement.
The defendant insurer, Intact, submitted that the use of the word “evidence” in the endorsement implicitly refers to evidence that is admissible in court to prove the truth of its contents. Evidence that is not admissible cannot be used by a court to prove a fact and therefore could not be sufficient to corroborate the plaintiff’s accounting of events and engage the OPFC 44R endorsement.
Meanwhile, the plaintiff pointed out that the endorsement does not specify or require “admissible evidence”. They argued that the common parlance and use of the word “evidence” was broad enough to cover hearsay evidence and other forms of inadmissible evidence.
Justice Myers considered the positions of the parties and considered the case law. His Honour stated that the authority of Pepe stood for the position that evidence beyond “admissible evidence” could provide an insurer with the requisite comfort as to the validity of the plaintiff’s claim.
Justice Myers noted that “bearing in mind the consumer protection purpose to insurance regulation and the very specific contractual requirement for corroboration “indicating” (not “proving”) involvement of an unidentified vehicle, the corroboration requirement can be satisfied by hearsay.”
Justice Myers pointed to other situations such as tire/skid marks or damage to a car’s rear bumper as examples where the courts already use certain evidence as corroborative facts which may or may not actually be true.
The presence of these things would corroborate the presence or involvement of a second vehicle but would also leave a trier of fact with the ability to still find that there is insufficient evidence to establish that the marks or damage was caused by the unidentified vehicle as alleged in the claim.
Decision
Based on all of the above, Justice Myers made a final declaration that the hearsay evidence of the witness/bystander statement and the OPP officer was sufficient to meet the corroboration requirement in the OPCF 44R endorsement.
Takeaway
This decision stands for the proposition that hearsay evidence can be sufficient to satisfy the corroboration requirement in the OPCF 44R endorsement.
This decision also stands for the proposition that the test for corroboration occurs before the truth of the evidence is assessed in the liability phase of the trial. The existence of corroboration does not tie the insurer’s hands or limit their ability to contest the mechanism of the accident and injury propounded in considering whether the plaintiff’s injuries meet the threshold or for any other purpose.
It also does not limit a trier of fact from finding that the information is sufficiently corroborative to engage the insurance policy but ultimately conclude that there is insufficient evidence to prove the liability of the unidentified motorist.
[1] Abarca v. Vargas, 2015 ONCA 4, at paras 39-40.
[2] Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341 (CanLII) at para 14.