On August 14, 2014, Mr. Justice Firestone released his decision in Azzopardi v Doe, which arose from a motion brought by the plaintiff’s own insurer for partial summary judgment dismissing his claim for damages in excess of $200,000 arising from an August 25, 2011 car accident.
In this case, the plaintiff had claimed against The Personal for coverage in excess of $200,000 under the OPCF-44R (Family Protection Coverage Endorsement), in addition to uninsured motorist coverage up to that statutory minimum limit. The Personal took the position that the plaintiff had failed to satisfy the requirement in section 1.5(C) – in other words, to corroborate the involvement of an unidentified automobile with “other material evidence”, which is defined (in part) in subsection (D)(ii) to mean “physical evidence indicating involvement of an unidentified automobile”.
According to the plaintiff, he was riding his motorcycle on Dundas Street West in Toronto when he was cut off by an unidentified vehicle which then braked suddenly in front of him. In response, the plaintiff braked, and he claimed that he instinctively put his left leg down on the pavement to keep his motorcycle upright. As a result, the plaintiff sustained bicondylar tibial plateau fractures to his left leg just below the knee with significant comminution, and requiring multiple surgeries. While the plaintiff reported that witnesses had approached him after the accident, no witnesses were identified who could independently attest to the circumstances.
In support of the partial summary judgment motion, The Personal argued that there was no physical evidence establishing the involvement of an unidentified automobile in the loss, such as skid marks on the road.
However, Mr. Justice Firestone found that there was physical evidence to support the presence of an unidentified automobile which was independent of the plaintiff’s self-report of the events. He referred to the consultation report of the plaintiff’s treating orthopaedic surgeon, Dr. Cayen, who stated that the plaintiff had “suffered an axial load to his left leg approximately 50 to 60 km/h”, and inferring that this could be indicative of the involvement of an unidentified vehicle in an accident with Mr. Azzopardi.
This decision is significant because the term “physical evidence” has been further expanded from physical evidence at the scene of the accident to physical evidence in the form of a corroborating injury to the plaintiff’s person. Azzopardi therefore continues the trend set by earlier lower court decisions in Pepe[1] and Featherstone[2]toward a more expansive approach to the scope of potential recovery under the OPCF-44R. Effectively, satisfaction of section 1.5(C) of the OPCF-44R now only requires an “indication” that an unidentified automobile might be involved, and the words “physical evidence” need not be limited to scene-based evidence of the involvement of an unidentified automobile in the accident. At the time of writing, it is unknown whether an appeal will be filed.
[1] 2011ONCA 341 (CanLII)
[2] 2013 ONSC 3175 (CanLII)
