In Ontario, the standard motor vehicle insurance policy provides insured people $200,000.00 in coverage for injuries or damages caused by an unidentified vehicle. This limit may be increased to $1 million for insured people who choose to buy an optional extra coverage in the OPCF 44R Family Protection Endorsement (“Endorsement”). While it is “optional” as is any coverage above the minimum $200,000 limits, the practical reality is that virtually every motorist in Ontario has the OPCF 44R endorsement included in their $1M auto policy. In order for an insured person to make a claim under their own insurance policy for coverage for loss caused by an unidentified vehicle pursuant to this endorsement, the language found in the endorsement requires that the involvement of an unidentified vehicle must be supported by corroborating physical evidence or independent witness.
In the recent Court of Appeal decision Aditi v. Doe, 2022 ONSC 4049, the Court provides an analysis on the level of corroboration required to establish the existence of an unidentified motorist and whether inadmissible hearsay evidence suffices.
This case involves a dispute between the Plaintiff, Ms. Aditi, and the Defendant, Intact Insurance Company. The Plaintiff had an automobile insurance policy with the Defendant. Her policy included the standard $200,000 coverage as well as the OPCF 44R endorsement bringing the coverage up to $1 million.
On October 28, 2019, the Plaintiff was driving on Highway 404. She was attempting to change lanes and as she was halfway through her lane change, she saw a black pick-up truck entering the lane she was attempting to enter. The Plaintiff braked and swerved back into her original lane and collided with the centre guardrail. The black pick-up truck failed to stop.
A witness who was driving in front of the Plaintiff stopped at the scene to help. The Plaintiff called 911 and on the 911 recording, the witness can be heard speaking in the background. The OPP officer who attended the scene spoke to the witness who confirmed the Plaintiff’s version of events. Since the witness could not identify the black pick-up truck, the OPP officer did not record the witness’s identity or contact information.
Justice Fred Myers determined that the statement made by the witness to the OPP officer confirming that the black pick-up truck cut off the Plaintiff is hearsay. It is a statement made out of court that the Plaintiff adduces for the truth of its contents and therefore, it cannot be used as evidence at trial. The witness’s statement cannot be admitted as “information and belief” evidence under an exception to the hearsay rule because the OPP officer did not attest to his belief the truth of the statement.
Similarly, the principled exception to hearsay did not apply to the witness’s statement either. Since the witness was travelling in front of the Plaintiff’s car, his ability to meaningfully observe the pick-up truck coming from behind and to the side of the Plaintiff’s car cannot be sufficiently reliable.
The Court determined, however, that the OPP officer’s evidence that he spoke with the witness is 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 that a black pick-up was involved is not hearsay if it is used solely for the purpose of understanding that this is what the witness told the OPP officer.
OPCF 44R Family Protection Endorsement:
The Court then considered the issue of whether the hearsay evidence of the witness was sufficient to meet the corroboration requirement in the Endorsement. The Endorsement states:
(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 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.
The issue is not liability of the accident but rather, it is an issue of what is meant by the requirement for the Plaintiff’s evidence to be corroborated by other “material evidence” for the increased policy limit to be available to her under the Endorsement. The Endorsement defines “other material evidence” as “independent witness evidence” or “physical evidence”.
The Defendant 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, and therefore evidence that is not admissible cannot be used by a court to prove a fact. The Plaintiff, on the other hand, asserts that the Endorsement does not go so far as to require “admissible evidence”.
The Court’s Analysis and Findings
Bearing in mind the consumer protection purpose to the insurance regulation and the very specific contractual requirement for corroboration “indicating” and not “proving” the involvement of an unidentified vehicle, Justice Myers noted that the corroboration requirement can be satisfied by hearsay. The fact that someone stopped at the scene and spoke to the OPP officer does not meet the principled exception to the hearsay rule. However, it does meet the independence and materiality requirements of the contract. The idea is not to unfairly exclude or restrict coverage. Rather, the goal is to ensure that the insurer has a fair assurance, external to the plaintiff herself, that an unidentified driver was involved.
Justice Myers concluded that the hearsay evidence of the witness’s statement was sufficient to meet the corroboration requirement in the Endorsement. Justice Myers added that the evidence of the OPP officer that the witness confirmed the Plaintiff’s story to him may be enough without considering the truth of its content. The simple fact that the witness’s evidence confirmed the Plaintiff’s story is enough to meet the corroboration requirement irrespective of the truth of evidence. Whether the pick-up truck truly cut the Plaintiff off or its driver did anything to render himself or herself liable is an issue for trial against the unidentified driver on the issue of liability. The hearsay evidence of a black truck being there is a sufficient indication of the involvement of an unidentified vehicle to meet the purpose of the corroboration requirement in the parties’ contract to engage the application of the endorsement.
On this basis, Justice Myers ruled that there was no genuine issue requiring a trial on the question of the applicability of the Endorsement to the Plaintiff’s claims.
The corroboration requirement can be satisfied by hearsay where it meets the independence and materiality requirements in the OPCF 44R Family Protection Endorsement. 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 to limit its ability to contest the mechanism of the accident and injury propounded in considering who is at fault for the accident.