Court File and Parties

COURT FILE NO.: CV-12-470449 DATE: 20181005

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HERBERT ALEXANDER Plaintiff/Respondent

• and - JOHN/JANE DOE, JACK/JILL DOE and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants/Applicant

Counsel: Sulaiman Mangal, for the Plaintiff/Respondent Lisa Quan for the Defendant/Applicant State Farm Mutual Automobile Insurance Company

HEARD: September 27, 2018

SPIES J.

REASONS FOR DECISION

Overview

[1] On December 22, 2010 the plaintiff’s vehicle rear-ended the car in front of him on Highway 401 (the “accident”). This car was being driven by Ms. O’Sullivan (the “O’Sullivan vehicle”). The plaintiff alleges that his car was propelled forward into the O’Sullivan vehicle after it was struck hard from behind by an unidentified vehicle, which, in turn, caused his vehicle to rear end the O’Sullivan vehicle.

[2] The plaintiff brought an action against John/Jane Doe and Jack/Jill Doe, and his own automobile insurer, State Farm Mutual Automobile Insurance Company (“State Farm”) for unidentified motorist coverage. On December 6, 2017, the plaintiff discontinued his action against the Doe defendants. The plaintiff has chosen not to sue Ms. O’Sullivan. State Farm delivered a Jury Notice on May 7, 2013.

[3] State Farm seeks summary judgment dismissing this action against it in its entirety in relation to both the claim for coverage under the Ontario Automobile Policy (“OAP”), and the claim for coverage pursuant to the OPCF 44R. In advance of the hearing of this motion, the plaintiff agreed to limit his claims to the unidentified motorist coverage damage limit of $200,000 under s. 5 of the OAP.

The Issues

[4] State Farm submits that there is no genuine issue requiring a trial with respect to the question of whether the negligence of an unidentified driver caused or contributed to the accident. It is the position of State Farm that no unidentified vehicle behind the plaintiff rear-ended the plaintiff’s vehicle and caused the plaintiff to rear-end the O’Sullivan vehicle. State Farm argues that the damage to the vehicles and the documentary, discovery and collision dynamics evidence – the best available evidence that will not improve at trial – all points to a single conclusion that it is likelier than not that the accident was caused entirely by the plaintiff’s negligence or, alternatively, that there is at least 1% liability on the O’Sullivan vehicle in which case State Farm’s unidentified motorist coverage is not engaged.

[5] The position of the plaintiff is that he has sufficient evidence to comply with the evidentiary requirements of the OAP in that the evidentiary requirements for OAP coverage can be limited to the plaintiff's own evidence without corroborating evidence in the form of witnesses to the collision or property damage to the vehicle. The plaintiff argues that there is conflicting evidence from the experts retained by each party, and that the credibility and evidentiary issues raised by State Farm result in genuine issues requiring a trial in order to allow for the fair and just determination of the factual issues in this action.

[6] Accordingly the central issue on this motion is whether or not there is a genuine issue requiring a trial in relation to the plaintiff’s claim that he was rear ended by an unidentified vehicle before the plaintiff’s vehicle rear ended the O’Sullivan vehicle. There is no dispute that unlike the coverage afforded by the OPCF 44R, the $200,000 standard coverage under s. 5 of the OAP does not require that the plaintiff's be corroborated. However, the plaintiff’s evidence does need to be convincing and probative such that the plaintiff can show on a balance of probabilities that he was rear-ended by an unidentified vehicle, and that the negligence of the unidentified driver caused or contributed to the accident.

The Evidence

[7] There is no dispute that, at approximately 6:30 p.m. on December 22, 2010, the plaintiff rear-ended the O’Sullivan vehicle, a red 2007 Toyota Camry. The plaintiff was driving a grey 1990 Honda Accord (the “plaintiff vehicle”). Both cars had been travelling eastbound on Highway 401 just past the Kennedy exit in Scarborough, with the plaintiff travelling immediately behind Ms. O’Sullivan. The plaintiff was travelling at an estimated 20-25 km/h. Ms. O’Sullivan was travelling at an estimated 20-30 km/h. Four of the plaintiff’s daughters were passengers in his vehicle; Janice, Jessica, Jannie and Collette.

[8] There is also no dispute that, at some point before the accident, an unknown vehicle cut in front of the O’Sullivan vehicle, causing Ms. O’Sullivan to suddenly brake. The plaintiff’s vehicle then went under the back of her car, cracking her bumper. This is referred to as an “under-ride” type of collision. The front of the plaintiff’s vehicle was more significantly damaged, including the bulging up of his front hood.

[9] The plaintiff claims to have sustained two impacts – first from behind and second when he rear-ended the O’Sullivan vehicle. This is disputed by State Farm, relying to a large extent on the fact that there was no observable damage to the rear of the plaintiff’s vehicle.

The Evidence of the Plaintiff

[10] According to the plaintiff’s discovery evidence, there were three lanes in the eastbound direction. He was in the rightmost lane travelling behind Ms. O’Sullivan when a dark grey car from behind and to his left tried to enter the space between his vehicle and the O’Sullivan vehicle. The plaintiff slammed on his brakes, swung right over the white line and onto the shoulder to avoid the grey car and he came to a complete stop. As the plaintiff started to accelerate back towards the right lane and continue travelling eastbound on the highway, he noticed the same car that tried to cut between his car and the O’Sullivan vehicle cut in front of the O’Sullivan vehicle, causing the O’Sullivan vehicle’s brake lights to come on. The plaintiff reacted to this by pressing hard on his brakes with enough room to stop. It was at this moment that he felt his car rear-ended. Immediately after he was rear-ended, the position of the plaintiff is that his vehicle was thrust forward and, despite attempting to brake again, the plaintiff vehicle struck the rear of the O’Sullivan vehicle.

[11] The evidence of the plaintiff as to whether or not he was stopped or moving when the unidentified vehicle rear-ended his car is not clear. For the purpose of this motion, I will assume the most favourable position for the plaintiff namely that the plaintiff vehicle was in motion and braking at the point when he was rear ended by an unidentified vehicle. The plaintiff has described the rear impact as “hard enough that it flung me back that loosen my grip and my steering” and that it caused him to cut his thumb on the heat vent.

[12] While all of the cars were at a standstill, the plaintiff testified that he looked at his rear view mirror and observed a male Caucasian driver in a white car with its hood bulged up (“unidentified white vehicle”) behind him. According to the plaintiff, the unidentified white vehicle was wedged under the rear of his vehicle. There is no dispute that what the plaintiff describes would be an under-ride collision if it in fact occurred.

[13] After impact, Ms. O’Sullivan exited her vehicle and went to the plaintiff vehicle to see if they were okay. The plaintiff turned to his daughters and instructed them to see if they could see the rear vehicle’s licence plate of the unidentified white vehicle. No one got the plate number but, according to the plaintiff, his daughters saw the unidentified white vehicle. The plaintiff never exited his vehicle at the scene to inspect the property damage.

[14] The plaintiff did not speak to the driver of the unidentified white vehicle. However, he claims he saw a man in an orange suit (possibly a construction worker) speak with the driver and direct him to take his car out from under the plaintiff vehicle and move his car to the side of the highway. Apparently this man in the orange suit then began to direct traffic. A police officer (not called by the plaintiff) arrived at the scene and told the plaintiff and his passengers to exit their vehicle and go into a tow truck. When the officer arrived, according to the plaintiff, the unidentified white vehicle was still parked on the right side of the highway in the merge lane. The plaintiff did not see the officer speak to the driver, and his evidence is Ms. O’Sullivan did not speak to the man in the orange suit or the unidentified driver.

[15] The plaintiff allegedly gave a statement to the police officer and told him about the unidentified white vehicle but no information from any police file has been disclosed in the action or is in evidence before me. Furthermore, the plaintiff did not get the name or contact information of the man in the orange suit. There are therefore no witnesses that the plaintiff can call at trial who witnessed the accident.

[16] The plaintiff’s daughters have not filed affidavits in response to the motion but I do have the discovery evidence of Collette and Jannie. When deposed on June 27, 2014, Collette denied remembering what happened in the accident but she later stated that she did remember just seeing the red car in front, which might have been stopped as she recalled seeing red brake lights. She felt one impact and it was a hard one. On impact, her knee struck the driver’s seat in front of her. Collette testified that she exited the plaintiff vehicle and that she noticed damage to the back of it that “was bad, it was like totalled, I think”. She did not go over to see if there was any damage to the front or sides of her father’s car. She believed that the person in front was involved in the accident with her car. Collette’s evidence about the damage to the rear of her father’s car was clearly false - she may have meant the front of his vehicle.

[17] When deposed on June 27, 2014, Jannie Alexander also advised to feeling only one impact. She testified that “the car in front of us like, suddenly stopped, so we suddenly stopped. But the car behind us didn’t suddenly stop and they bumped us into the car in front of us.” However, she never actually saw the car from behind; her understanding is based on what her father said. She observed that the front of her father’s car was “like, destroyed”. She did not check to see if there was any damage to the back of their car. On impact, like her sister, Jannie’s body moved forward.

[18] Following the accident on the same day, the plaintiff and his daughters and Ms. O’Sullivan attended a Collision Reporting Center (“Center”). The plaintiff’s executed Self-Reporting Collision Report indicates the following:

• Description of vehicle damage: FRT BUMPER, HORN, LTS, LT FRT FENDER, RAD (p. 1);
• Initial impact is 12 (i.e. front of car) (p. 1);
• No secondary impact indicated (p. 1);
• Initial impact type is 01 (i.e. going ahead) (p. 2);
• Vehicle action type is 02 (i.e. slowing/stopping) (p. 2);
• Your statement: “in lane #3. Approximate speed 20-25. I was going East 401/Collector past Kennedy Rd. A car on my left cut in front of the driver in front of me. We both had to stop sudden. My car slid into the back of the one next in front of me.”

[19] In the adjacent diagram box, the plaintiff’s drawing depicts this version of events as per his statement. There is no indication in either the statement or diagram of a vehicle rear-ending the plaintiff.

[20] Ms. O’Sullivan’s collision report indicates that she was forced to brake after a car cut in front of her. The car behind her then bumped into the back of her car, cracking the bumper. Consistent with the plaintiff’s report, Ms. O’Sullivan’s report makes no mention of a vehicle behind the plaintiff.

[21] When asked at discovery why his report failed to mention being rear-ended, the plaintiff stated that he did state this in an original and much lengthier report that the plaintiff alleges had a full description of his injuries and of the accident including reference to the unidentified white vehicle that pushed him into the O’Sullivan vehicle. It is the plaintiff’s evidence that this original report was rejected and returned to the plaintiff by the officer at the Center who “said I should save that for my lawyer and for court,” and demanded “just give a short version”. The plaintiff and his daughters do not have the original report and the plaintiff does not know what came of it.

[22] In addition, as further explanation, it is argued on behalf of the plaintiff that he was in significant pain after the collision (including urinating in his pants) and had been at the Center until nearly 4 a.m. the following day (December 23, 2010). After several hours without medical attention, the plaintiff was in increasing pain and distress and wanted to get home and seek medical attention. For these reasons, the plaintiff says that the collision report filed is an incomplete description of the collisions that occurred.

[23] The plaintiff claims to have told the officer at the Center, his family doctor shortly after the accident, the walk-in clinic he attended shortly after the accident, the rehab Center, a State Farm adjuster and “everybody I talk to about this” about the man in the orange suit. There is, however, no evidence available from any officer from the Center or from the man in the orange suit.

[24] The plaintiff has not filed any clinical notes of his family doctor, the walk-in clinic he attended, or of the Rehab Center he attended after this accident to evidence this claim that he reported being rear-ended, which is surprising as those notes would contain any reports from him about the accident closest in time to the accident. I have no evidence therefore that these records contain reports from the plaintiff that are inconsistent with his evidence.

[25] The plaintiff has filed evidence on this motion that he told five medical assessors at various points in July 2011, October 2011, September 2011, March 2012 and October 2017 that he was first rear-ended; the earliest assessment of which took place more than seven months after the accident. These, however, would be prior consistent statements and would not be admissible in evidence at trial. They could not be used by the plaintiff to bolster his evidence.

[26] The defendant took the position that plaintiff never informed State Farm that he had been rear-ended. The affidavit of Matthew Attridge filed on behalf of State Farm on this motion states that on or about December 23, 2010, Leah Evans, a former adjuster with State Farm, who has not filed an affidavit, spoke to Ms. O’Sullivan who informed Ms. Evans that she was unaware of another vehicle being behind the plaintiff. I agree with Mr. Mangal, counsel for the plaintiff, that this evidence from Ms. O’Sullivan is not admissible on this motion as it is double hearsay. That said, there is no evidence before me that Ms. O’Sullivan did see a vehicle that had rear ended the plaintiff vehicle when she got out of her car to see if the plaintiff and his daughters required assistance. Although Ms. O’Sullivan’s collision report might be admissible as that document might be proven through the business records exception without her testifying as a witness, it would have little - if any –weight on its own, and so for the purpose of this motion, I have placed no reliance on it.

[27] I also accept the position of Mr. Mangal that the fact Ms. Evans called Ms. O’Sullivan for this purpose, which fact is admissible, corroborates the evidence of the plaintiff that he did report the existence of the unidentified driver to State Farm. Otherwise, there would have been no reason for Ms. Evans to make that call. However, again that is a prior consistent statement made by the plaintiff that cannot be used to bolster the plaintiff’s claim. This evidence is however relevant to an issue raised by Mr. Mangal, namely that an adverse inference ought to be drawn against State Farm, because the plaintiff vehicle was written off and disposed of and was not available for inspection by either expert retained by the parties. I will come back to this issue.

[28] The plaintiff admitted on discovery that his memory of the accident was clearest at the time of the accident or shortly thereafter when he reported the accident at the Center.

Damage to the Vehicles

[29] The plaintiff vehicle was towed from the scene by Auto Route Towing Inc. The plaintiff authorized the tow by signing an invoice, which contains a diagram depicting only front-end damage to his vehicle. The day after the accident, the plaintiff vehicle was towed to Bayview & Steeles Auto Collision Ltd. where the damage was assessed. 18 colour photographs of the vehicle were taken at the shop, and these were entered into evidence. The plaintiff attended at this location as well and he took an additional seven colour photographs. All of these photographs were available to the experts retained by the parties. A repair estimate was prepared, identifying only a need to repair the front of the vehicle and pre-existing rust damage to the left fender panel.

[30] According to the plaintiff, his vehicle sustained the most damage at the front driver’s side of the car because he was still over the white line and therefore not aligned behind the O’Sullivan vehicle at the time of that impact. The front hood was bent up but the front passenger side headlight was not damaged. There is no dispute that the plaintiff vehicle suffered damage to the front end.

[31] A central factual issue is whether or not the plaintiff vehicle suffered any damage to the rear end as a result of the alleged rear ending by the white unidentified vehicle. According to the plaintiff, the rear of his vehicle sustained “bruising and denting on the bumper and the right side of the bumper where it’s pinned beneath the wheel – the dash of the car come to the wheel well, that was torn down – torn open and the metal part of the wheel well bulges off torn – it got torn off, projected out.”

[32] The plaintiff argues that as State Farm took possession of the plaintiff vehicle and never returned it, and no part of the vehicle was provided for inspection, that an adverse inference should be drawn against State Farm with respect to damage to the rear of the plaintiff vehicle. The plaintiff argues that there was some obligation on State Farm to retain possession of his vehicle or at least the rear bumper so that the experts could inspect the vehicle in preparing their accident reconstruction reports, which both parties rely upon in this summary judgment motion.

[33] There is no evidence of how and why the plaintiff vehicle was disposed of but it seems obvious on the evidence that I do have that given the age of the plaintiff’s vehicle and its condition before the accident, which included a great deal of rust and the mileage of almost 210,000 km, and given the cost of repairs of about $3,600, that the vehicle would have been a write off. There is no evidence that the plaintiff refused receipt of payment for the value of his vehicle and/or that he took the position that State Farm had to retain possession of the vehicle at its expense so that it could be inspected. No support was provided for the proposition by Mr. Mangal that an adverse inference should be drawn. In my view, no adverse inference should be drawn against State Farm from the fact that the vehicle is no longer in its possession. Accordingly, a determination of the issues on this motion must be made based on the available evidence.

[34] I have carefully reviewed the photographs taken of the rear end of the plaintiff vehicle and agree with the submissions of Ms. Quan, counsel for State Farm, that they depict no observable bruising, indentation or other physical damage to any part of the rear of the vehicle. There may, however, be evidence that supports the plaintiff’s position from his expert that I will now consider.

Accident Reconstruction Analysis

[35] Both parties retained accident reconstruction experts who swore affidavits and provided their reports. State Farm retained Gordon M. Jenish, P. Eng., and the plaintiff retained Peter Williamson, P. Eng. The experts agree that the nature of the collision between the plaintiff vehicle and the O’Sullivan vehicle was an “under-ride impact” in that the plaintiff vehicle slid under the rear of the O’Sullivan vehicle. Counsel agreed that what the plaintiff described with respect to the unidentified white vehicle would also have been an under-ride impact if it occurred.

[36] After reviewing the available documentation and conducting a collision analysis, Mr. Jenish’s conclusions included the following at p. 14:

We found that, based upon the lack of damage to the rear of the Alexander Accord, and the force necessary to accelerate that vehicle forward into the O’Sullivan Camry, the physical evidence did not support an initial rear impact to the Alexander vehicle, forcing that vehicle into contact with the O’Sullivan vehicle…the force required to accelerate the Alexander Accord forward into the O’Sullivan Camry would have resulted in significant and obvious rear-end damage to the Alexander vehicle, which was not present …

There was no visible damage to the rear bumper, nor to any of the rear body panels of the Alexander Accord… There was no damage to the rear of the Alexander Accord that was consistent with another vehicle having struck the rear of this vehicle …

Assuming that the Alexander Accord was initially struck from behind, causing it to be accelerated forward into the rear of the O’Sullivan vehicle, the Alexander vehicle would have had to have been struck hard enough to have been accelerated forward to the point at which it was moving about 20 km/h faster than the O’Sullivan vehicle, on impact. Assuming that the … Alexander vehicle was still braking on impact … that vehicle would had to have struck the rear of the Alexander vehicle with a greater severity than that which the Alexander Accord struck the rear of the O’Sullivan Camry …; at pp. 14-15, 19, emphasis added.

[37] Having concluded that the physical evidence is not consistent with the plaintiff’s version of events, Mr. Jenish opined at p. 23 that based on the available evidence, particularly the property damage and the under-ride nature of the collision, the likely cause of the accident was the plaintiff failing to apply his brakes early enough, or following the O’Sullivan vehicle too closely, thereby causing the plaintiff vehicle to slide into the rear of the O’Sullivan vehicle when she braked suddenly.

[38] Mr. Jenish performed crash simulations modeled on two possible scenarios. In the first scenario, Mr. Jenish assumed that the plaintiff vehicle was stopped but as I have stated, I have assumed it was moving at the time of the alleged impact with the unidentified white vehicle. In Mr. Jenish’s second scenario, at p. 21, he assumed that the plaintiff vehicle was braking but still moving forward when struck from behind. Though the required speed at which the unidentified vehicle had to strike the plaintiff vehicle in order to propel it into the O’Sullivan vehicle differs between the two scenarios, Mr. Jenish’s opinion is that readily observable damage to the rear of the plaintiff vehicle should have materialized.

[39] Mr. Williamson states that Mr. Jensen fails to adequately explore the possibility of the plaintiff vehicle having been in the process of “braking heavily” and then being struck from behind while still in motion; and he goes on to opine that his analysis has shown that “it is possible in this case for a more minor impact at the rear to result in a more significant impact at the front (at p. 6)”. He concludes that the plaintiff vehicle was moving when it stuck the back of the O’Sullivan vehicle at p. 5 and he opines:

If a vehicle is slowing down and braking heavily such that it was going to stop very close to the vehicle ahead when it was struck from behind, then a relatively minor collision can result in a higher severity collision on the front of the vehicle. This can occur if the driver's foot lifts off the brake but can also occur simply due to physics associated with stopping distances and speeds. …

It is possible for a braking vehicle to be struck from behind such that minimal damage could be expected, and for the vehicle to then collide with the vehicle in front of it at a higher speed. This could have occurred in this incident. …[Emphasis added]

[40] At p. 6, Mr. Williamson summarizes his conclusions:

2. It is not possible to determine from the available information if there was an impact on the rear of the Alexander vehicle. However, if there was an impact on the rear, it was less severe than the frontal impact.

3. ….It is therefore possible that the Alexander vehicle could have been struck from behind and pushed into the vehicle ahead if it was still in motion and braking heavily when it was struck from behind. [Emphasis added}.

[41] As far as the lack of observable damage to the rear of the plaintiff vehicle in the photographs and property damage report, Mr. Williamson states in his report at p. 1 that based on the photographs, the rear bumper cover was a matt black colour and that this vintage of Honda Accord does not tend to show contact damage in the same way that a painted bumper cover will. He states as well that there was dirt on it and some scuffs and dirt smearing the bumper. He states that there was a “localized circular mark on the back face of the rear bumper to the right of the center. This mark was similar to marks which are seen as a result of contact from the mounting bolts on the front license plate of a striking vehicle, but it cannot be confirmed if this was related to this incident.” Mr. Williamson goes on to refer to some rust on the rear wheel wells where the bumper met the wheel wells which did include some outward deformation of the rusted metal above the right rear well, and he states that “it cannot be confirmed if these were related to a recent rear impact.” (pp. 2-3 of report).

[42] He concludes at p. 6 that it is possible to tell that there was no “significant damage [to the plaintiff’s vehicle] from a rear end collision” but that “one cannot rule out a possible collision based on the available photographs.”

The Law – Summary Judgment

[43] The law that I must apply on deciding whether or not summary judgment is appropriate in this case is well settled. Rule 20.04 (2) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that this Court must be satisfied that there is no genuine issue requiring a trial with respect to the plaintiff’s claim before granting summary judgment as requested by the defendant.

[44] From the seminal decision of Hryniak v. Mauldin, 2014 SCC 7, and cases that have followed it, the principles governing summary judgment motions have been articulated and applied as follows:

• There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination of the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result; Hryniak at para. 49.
• The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the fact-finding powers set out in Rule 20.04. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a); Hryniak at para. 66.
• A summary judgment motion judge is entitled to assume that the evidence contained in the motion record is all the evidence the parties would rely on if the matter proceeded to trial. A responding party cannot rely on unsupported allegations in the pleadings or unfounded assertions that there is a genuine issue requiring a trial; Mehlenbacher v. Cooper, 2017 ONSC 3434 at para. 36.
• If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using Rules 20.04(2.1) and (2.2); Hryniak at para. 66.
• Rule 20.04(2.1) provides that the judge may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.
• The enhanced fact-finding powers granted to this Court in Rule 20.04(2.1) may be employed on a motion for summary judgment unless their use is not in the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole; Hryniak at para. 66.
• It is trite law that both parties on a summary judgment motion are required to put their “best foot forward. Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.” Chernet v. RBC General Insurance Company, 2017 ONCA 33 at para. 12;

The Law-Effect of the Jury Notice

[45] The plaintiff relies on Mitusev v. General Motors Corp., 2014 ONSC 2342, at paras. 85, 86 and 91 for the proposition that while service of a Jury Notice does not preclude this Court from granting summary judgment, the removal of that substantive right to a jury should occur only in the face of relevant admissible and compelling evidence that leaves the motion judge confident that she has the necessary facts that will allow her to apply the relevant legal principles so as to resolve the dispute. Where the motion judge is unable from the evidence filed to make findings of fact, and to thereafter apply the law, it would be the exceptional case that the motion judge would exercise the expanded fact finding allowed by Rule 20.04(2.1) and (2.2) to effectively usurp the fact finding role of a jury. No authority is cited for this proposition. In Mitusev, it was the plaintiffs who served the Jury Notice.

[46] This case was followed in Paolucci v. John Doe, 2015 ONSC 7675 at para. 30; a case where it was the defendant who had served the Jury Notice. In my view that is an important distinguishing feature. Furthermore, I fail to see how service of a Jury Notice by either party can raise the bar for a motion for summary judgment beyond what is set out in Hryniak. As stated by Kristjanson J. in B. (R.) v. S. (E.) (Litigation guardian of), 2017 ONSC 7866 at paras. 16-18, summary judgment is a dispute resolution mechanism separate from a trial and Rule 20 requires this Court to grant summary judgment if there is no genuine issue requiring a trial in which case a party’s right to have a jury trial does not arise.

[47] For these reasons, in my view the fact that State Farm has served a Jury Notice in this case is not relevant to my determination of this motion.

The Law - OAP

[48] State Farm’s policy provides unidentified driver coverage for injuries to a plaintiff resulting from the negligence of an unidentified motorist. The coverage has two components: (i) $200,000 standard coverage pursuant to the terms of the standard OAP, and (ii) additional $800,000 coverage provided by the OPCF-44R. As already stated, the plaintiff now seeks only to recover under the OAP.

[49] In order to access the OAP coverage, the plaintiff must establish, on a balance of probabilities, that the accident was caused by an unidentified vehicle; see Ding v. John Doe et al., 2016 ONSC 1690, paras. 4 and 23.

[50] For coverage under OAP, no independent witness evidence or physical evidence indicating the involvement of an unidentified vehicle is required. Coverage may be extended based on the plaintiff's own uncorroborated evidence in return for the cap on damages to $200,000; see Chmielewski v. Pishchak, 2014 ONSC 1133 at para. 11.

[51] While corroborative evidence is not required to access the OAP coverage, the plaintiff’s uncorroborated testimony must still be “convincing” and the plaintiff must lead “probative” evidence to satisfy the court that the accident was caused by an unidentified vehicle. See Chmielewski, supra at para. 11, Paolucci, supra at para. 23 and Ding, supra at para. 29.

[52] Mr. Maglan argued that the decision of Azzopardi v. John Doe, 2014 ONSC 4685 supported his position although he did not have a copy of the case nor had he given any notice to Ms. Quan that he would be referring to this case. Ms. Quan objected to his doing so.

[53] I have taken the precaution of reading this decision and in my view it is of no assistance to the case at bar. In that case Firestone J. was considering a motion for summary judgment with respect to a claim under the OPCF 44R and in particular the meaning of the requirement that the plaintiff provide “other material evidence” of the involvement of an unidentified vehicle. That is not the case before me.

Analysis

[54] The theory of the plaintiff's case on liability is that the collision between the plaintiff vehicle and the O’Sullivan vehicle was caused by a less severe rear impact to the plaintiff vehicle caused by an unidentified white vehicle resulting in no observable damage to the rear of the plaintiff vehicle (based on photographs taken and without the benefit of the actual vehicle to inspect).

[55] During argument, Mr. Maglan did not dispute the fact that there is no independent witness who witnessed the accident or saw the alleged unidentified white vehicle who will give evidence at the trial. The only evidence about the existence of the unidentified white vehicle will come from the plaintiff. His daughters recalled one impact, and any evidence they have of the alleged unidentified white vehicle came from their father. Furthermore, the credibility of Collette is in issue as the rear of her father’s car had no observable damage. There is no evidence from Ms. O’Sullivan, the police officer who attended at the scene, the man in the orange suit, or anyone from the reporting Center that supports the plaintiff’s version of events.

[56] The evidence filed on this motion is the best available evidence, and will not improve if this matter proceeds to trial. The only advantage a trial judge would have is the ability to see the plaintiff and the expert witnesses testifying and being cross-examined. The inability to see the plaintiff being cross-examined is clearly not fatal as the demeanour of a witness rarely assists very much in determining the credibility of that witness. Mr. Maglan submitted that it was important that the experts be cross-examined but neither party chose to do so for the purpose of this motion.

[57] Given the evidence of the plaintiff and certain statements by Mr. Williamson in his report, this is a case where I must use my powers in Rule 20.04(2.1) to weigh the evidence, evaluate the credibility of the plaintiff, and draw any reasonable inference from the evidence. IN my view it would be in the interest of justice to use these powers in this case as they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[58] The plaintiff’s attempt on his examination for discovery to explain away the inconsistency between his collision report and his evidence of an earlier report indicating the involvement of the unidentified white vehicle seems very weak to me. However, I do not need to determine this motion on the basis of the lack of credibility of the plaintiff’s evidence if I can find on the basis of the expert reports that the plaintiff’s version of the collision is not possible. In my view, that issue hinges on whether or not there is a conflict in the evidence of the two experts and whether or not it is possible that the plaintiff was rear ended by an under-ride collision with an unidentified white vehicle, given there is no observable damage to the rear of his vehicle.

[59] I accept the submission of Ms. Quan that some of the conflict between the two experts is as a result of a misunderstanding of Mr. Jenish’s report. Mr. Jenish performed crash simulations modeled on two possible scenarios, and as already stated his second scenario at p. 21, presumed the plaintiff vehicle was braking but still moving forward when struck from behind. In my view, the fact that Mr. Williamson considers “heavy braking” versus “braking” is not important. What is important is the difference between the two experts on whether or not there would be visible damage to the rear of the plaintiff vehicle if it was in fact struck from the rear first.

[60] Although the required speed at which the unidentified white vehicle had to strike the plaintiff vehicle in order to propel it into the O’Sullivan vehicle differs between the two scenarios that Mr. Jenish considered, his opinion is that “some readily observable damage to the rear of the Alexander vehicle should have resulted”. Mr. Williamson’s report does not dispute or address this – it merely posits that “it is possible that a less severe impact while braking could result in a more severe frontal collision” (p. 6). The plaintiff’s expert does not suggest that no observable damage – as is the case with the plaintiff vehicle – would result in such a scenario.

[61] Mr. Maglan made much of the statement by Mr. Williamson in his report that although there was no “large scale damage” to the rear of the plaintiff vehicle and “no clear signs of a large area of contact” there was a “localized circular mark” similar to marks which are seen as a result of contact from the mounting bolts on the front license plate of a striking vehicle. He also relies on Mr. Williamson’s reference to the outward deformation of the rusted metal above the right rear well. I have already set out this portion of Mr. Williamson’s report where he stated that it cannot be confirmed if this damage was related to this incident. Mr. Mangal submitted that this along with the plaintiff’s evidence is physical evidence of damage that could have occurred if the plaintiff was rear ended and that this is more than enough to defeat this motion.

[62] The first issue with this portion of Mr. Williamson’s report is that I do not see any such mark in any of the colour photographs of the rear of the plaintiff vehicle. The copy of the Williamson Report I have has black and white pictures, and he does not point out this mark in any of those. I can only conclude that he sees something in the pictures that it is barely visible to the naked eye.

[63] As for the rusted metal above the right rear well, Mr. Williamson does not even include a black and white photo of what he is referring to. The colour photos in the defendant’s motion record show that there was a considerable amount of rust on the plaintiff vehicle including a lot of rust around the top of the right rear well. A close-up showing that rust, looking from the front to the rear of the vehicle shows that the metal of the body has lifted where the rust has gone right through the outer body of the vehicle, but I see no other outward bulge that Mr. Williamson refers to.

[64] Mr. Jensen’s description of this area of the plaintiff vehicle in my view is clearly accurate as he states in his report at p. 15 that the only damage to the rear wheel wells was the heavy corrosion in that area with some minor displacement of the body metal at the wheel surrounds; namely a small flap of body metal that had pulled away from the right rear quarter panel due to the heavy corrosion. It is his opinion that there was no damage to the rear surface. Without more detail in the report of Mr. Williamson, and given he makes no further reference to this damage elsewhere in his report, I cannot conclude that there is any outward deformation that could be relevant to the alleged rear ending of the plaintiff vehicle.

[65] I also note that nowhere in Mr. Williamson’s report does he state that the plaintiff’s version of events is consistent with the possibility that the extent of the damage to his rear bumper would be limited to this circular mark or this outward deformation, although he does say it cannot be confirmed if this damage was related to this incident suggesting, I suppose, that it is possible.

[66] At first blush, I should dismiss the motion for summary judgment, as urged by Mr. Maglan, because Mr. Williamson does state that the plaintiff’s version of events is possible. However, with a careful reading of his report, I have concluded that his opinion does not in fact support this conclusion.

[67] When Mr. Williamson analyzed the collision severity in section 4.1 of his report at p. 4, he stated that he was familiar with some rear impact bumper tests that were performed on a similar model 1991 Honda Accord. Significantly, he states that in those tests it was found that in a collision with a flat barrier, there would be minor bulging of the bumper cover even with a velocity change of about 11 km/h. He went on to state that with a velocity change of near 17 km/h there would be “more significant bulging of the bumper cover which affect the trunk lid fit”. At p. 6 of his report, Mr. Williamson’s first conclusion is that the plaintiff vehicle would have to sustain a velocity change of about 12.3 to 16.4 km/h to result in the observed damage in the frontal collision with the O’Sullivan vehicle. Having conceded that there is no clear sign of damage to the rear of the plaintiff’s vehicle that may be directly attributed to this accident, on this basis alone, Mr. Williamson’s report suggests there would be some observable damage to the rear of the plaintiff vehicle if he was rear-ended as he suggests. By Mr. Williamson’s own conclusions, the plaintiff vehicle ought to have shown significant bulging of the bumper cover affecting the trunk lid.

[68] I also find it significant that after reviewing the results of these rear impact bumper tests Mr. Williamson concludes at p. 4, that these tests suggest that such a collision with a velocity change near 10 km/h could be possible “without any significant damage, particularly given the lack of a detailed examination of the vehicle”. [Emphasis added] This opinion seems to be at odds with his own conclusion as to the velocity change that the plaintiff vehicle would have to have sustained. Furthermore, he does not suggest that such a collision would result in no observable damage to the rear of the plaintiff vehicle.

[69] I have already set out some of the other opinions of Mr. Williamson, and in particular his conclusion at p. 6 that it is possible that the plaintiff vehicle could have been struck from behind. I note, however, that in his conclusion Mr. Williamson does not include the fact, as he states at p. 5 of his report, that this although this is possible “minimal damage could be expected” to the rear of the plaintiff vehicle. As for the possibility of a more minor impact which Mr. Williamson explores at p. 6 of his report, he does say this is possible but states as well that it is possible to tell that there was no significant damage to the rear of the plaintiff’s vehicle, leaving open the fact that he suggests elsewhere that there would be minimal damage to the rear of the plaintiff vehicle.

[70] Mr. Williamson does go on at this point to state that [i]n the report by Fugger which was cited, [by Mr. Jensen] there is no clear sign of damage in the photographs, despite some damage being reported. This is the only place in Mr. Williamson’s report where he implies that the plaintiff’s version of events could have occurred with no clear sign of damage. He does not provide any further explanation, however, of what portion of the Fugger report he is referring to nor copies of any of the photographs that he relies upon.

[71] Mr. Jenson refers to the Fugger report at p. 19 of his report. In his footnote it is described as a report that considered low speed under-ride collisions that included a similar Honda Accord to the plaintiff vehicle. Mr. Jensen referred to a test where the test Accord was subjected to a rear impact by a vehicle of similar size at a speed of 10.6 km/h, resulting in an impact speed change of 6.6 km/h for the test Accord, which as Mr. Jenson noted was at a much lower speed differential than that required to accelerate the plaintiff vehicle forward sufficiently to cause the damage observed to the front of the plaintiff vehicle, a conclusion as I have already stated, Mr. Williamson agrees with. Mr. Jensen goes on to state:

there was damage incurred to the rear of the Accord test vehicle. This collision resulted in damage to the rear bumper cover of the test Accord, and also damaged the exhaust muffler tailpipe, which extends from the rear of the vehicle, directly below the bumper. There was no such damage to the rear bumper cover of the Alexander Accord, nor was there any deformation observed to the tailpipe on that vehicle. [Emphasis added]

[72] Given the absence of any further information from Mr. Williamson as to what he relies upon in the Fugger report, the opinion of Mr. Jensen on this subject is clearly more credible and reliable. Furthermore, I find it significant that he deals with the fact there was no sign of any damage whatsoever to the rear tailpipe of the plaintiff vehicle which as Mr. Jenson observes extends beyond the rear bumper. There is no reference in the Williamson report as to how this could be possible if the plaintiff vehicle was rear-ended.

[73] I have considered whether or not to suggest to the parties that before deciding this motion I should hear the two experts be cross-examined, but in my view that would not change the evidence in the Williamson report, and it is not necessary to achieve a fair and just determination of the plaintiff’s claim. The plaintiff is to put his best foot forward on this motion. For all of the reasons I have stated, in my view Mr. Williamson’s report would not satisfy a court on a balance of probabilities that a rear-end collision with an unidentified white vehicle could be possible without some observable damage to the rear of the plaintiff bumper and tail pipe. The lack of such observable damage in the colour photographs that are available would clearly contradict the evidence of the plaintiff that he was rear ended by and unidentified white vehicle. In the absence of other evidence to support the plaintiff’s position the plaintiff’s evidence is not convincing or probative such that the plaintiff can show on a balance of probabilities that he was rear-ended by an unidentified vehicle, and that the negligence of the unidentified driver caused or contributed to the accident. In my view there is no genuine issue for trial that the plaintiff vehicle was in fact rear ended by an unidentified white vehicle that caused the accident.

Disposition

[74] For these reasons summary judgment is granted in favour of the defendant dismissing the action against State Farm, in its entirety, in relation to both the claim for coverage under the OAP and the claim for coverage pursuant to the OPCF 44R.

[75] Counsel for the defendant filed her Cost Outline for the action and the motion at the conclusion of the hearing, and later that day I received a Cost Outline for the motion only from Mr. Mangal. Counsel requested an opportunity to make submissions on the quantum of costs for the motion, and given the outcome of the motion, the action, and so I am prepared to receive written submissions limited to three pages; first from the defendant within seven days of the release of this endorsement, and then from the plaintiff in five days from service on the plaintiff of the defendant’s submissions. Those submissions may be emailed to me with a copy to opposing counsel.

SPIES J.

Released: October 5, 2018

COURT FILE NO. : CV-12-00470449-0000 DATE: 20181005 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HERBERT ALEXANDER Plaintiff/Respondent

• and - JOHN/JANE DOE, JACK/JILL DOE and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant/Applicant REASONS FOR DECISION Spies J. Released: October 5, 2018