ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 62221

DATE: 2013-05-30

BETWEEN:

ANN MARIE FEATHERSTONE and ECHO FEATHERSTONE

Plaintiffs

– and –

JOHN DOE, PILOT INSURANCE COMPANY and ZURICH INSURANCE COMPANY

Defendants

Shauna Powell, for the Plaintiffs

W. Colin Osterberg, for the Defendant Zurich Insurance Company

HEARD: April 24, 2013 at London

HEENEY R.S.J.:

[1] This is a motion for summary judgment brought by the defendant Zurich Insurance Company. Zurich asserts that the plaintiff has failed to meet the corroboration requirement which is imposed by the OPCF 44R Family Protection Coverage Endorsement, in situations where the accident involves an unidentified automobile.

The Facts:

[2] The plaintiff Ann Marie Featherstone was driving a blue recycling truck on May 23, 2007, eastbound on a country road in the Township of Middleton. According to the plaintiff, as she was entering a bend in the road that curved to her left, a red pickup truck came at her at an extremely high rate of speed, and crossed over partly into her lane. She turned her vehicle to the right to avoid a collision. The truck entered the shoulder and left the roadway, rolled over onto its side and came to rest in a ditch.

[3] The plaintiff was partially ejected from the truck, and sustained what have been described as catastrophic injuries. A passer-by came on the scene, and the plaintiff immediately informed him that she had been run off the road by a vehicle coming in the opposite direction. When the OPP arrived to assist, she came running toward the officer and informed him that a car was “flying” towards her at the bend. She made a telephone call to her boyfriend, en route to the hospital and, in a hysterical and agitated tone, made a similar report.

[4] The red pickup truck was never located.

[5] She had been operating the recycling vehicle from the right side. The accelerator pedal on that side is connected by a series of linkages that restricts both its acceleration and its maximum speed. There will be testimony that the maximum speed of the vehicle could not exceed 50 to 55 kph.

[6] The accident was investigated by the OPP and photographs and measurements were taken. The only physical evidence at the scene that was connected to the accident consisted of tire marks that led from the roadway to the resting place of the truck. There were no gouges, skid marks or physical debris at the scene.

[7] The accident was investigated by the plaintiff’s engineer, Joseph McCarthy. He concluded that the speed of the truck at the commencement of the tire marks was 37 to 40 kph, although if braking had been applied it could have been as high as 68 kph. The “critical speed” of the curve is 101 to 112 kph.

[8] Significantly, the tire marks did not commence at the beginning of the curve, but only started after the truck had been steered to the left, following the curve, for approximately 3 to 4 seconds. At that point, in Mr. McCarthy’s opinion, the truck was turned to the right. That manoeuvre was consistent with the plaintiff steering the vehicle off the roadway to avoid a vehicle in her path. The fact that the plaintiff had driven into the curve for 3 to 4 seconds before turning to the right indicated that she was paying attention and intended to follow the curve. The turning manoeuver to the right, at a point part way into the curve, was in his opinion consistent with the driver having taken evasive action.

[9] Mr. McCarthy was cross-examined on several reports he prepared. He conceded that the scenario that the plaintiff took evasive action to avoid an oncoming vehicle was not the only theory that was consistent with the tire marks that were found. The plaintiff could have been taking evasive action to avoid an animal or a child. Furthermore, his reconstruction of the accident was based on the assumption that the plaintiff had been in the centre of her lane of traffic as she entered the curve, and began to follow it. Had she been further to her left on the roadway when she entered the curve, it was possible that she could have driven off the road where she did due to inattentiveness, leaving behind the tire marks that were found.

[10] Zurich retained its own expert, James Hrycay. Unsurprisingly, his opinions differ in almost every respect from those of Mr. McCarthy. He was of the opinion that the truck was travelling at a much higher speed prior to leaving the road, and attributed the accident to inattentiveness on the part of the driver, causing her to steer “less left” as she rounded the bend.

[11] Mr. Hrycay was also cross-examined. He agreed that, even with his higher speed numbers, the truck was still travelling below the speed limit, and below the critical speed for that particular curve. He also agreed that it appeared that the plaintiff had already commenced a turn to the left into the curve, suggesting that, at some level, she had made a conscious decision to turn her vehicle to the left. Despite that, he was unprepared to accept the theory that the plaintiff turned the truck to the right in an evasive manoeuver.

[12] The independence and objectivity of Mr. Hrycay will be an issue if this matter reaches trial. The plaintiff’s factum indicates that his evidence was rejected for lack of objectivity and independence in the following reported decisions: Docherty (Litigation Guardian) v. Lauzon, [2010] O.J. No. 5017 (S.C.J.) at paras. 102-3; Elliott v. Hill Bros. Expressways Ltd., [1998] A.J. No. 524 (Q.B.) at paras. 42-3; Garant v. Impens, [1986] O.J. No. 1190 (H.C.J.) at p. 4; and Stroud v. Nicholson, [2005] O.J. NO. 3671 (S.C.J.) at paras. 56-60.

The OPCF 44F Family Protection Coverage Endorsement:

[13] It is conceded that the plaintiff is entitled to pursue the standard unidentified automobile coverage that is required pursuant to s. 265(1) of the Insurance Act, R.S.O. 1990, c. I.8. The limits for such a claim are $200,000.

[14] At issue in this motion is whether the plaintiff is entitled to make a claim under the OPCF 44R Endorsement in her policy. If so, the applicable policy limits will be $2 million.

[15] Section 1.5 of OPCF 44R provides coverage where an accident is caused by an uninsured or unidentified vehicle. However, it prescribes a specific evidentiary threshold before a claim can be made regarding an unidentified vehicle. Section 1.5 (C) and (D) provide as follows:

(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.

[16] Ms. Powell, for the plaintiff, does not contend that the passer-by, the OPP officer and the plaintiff’s boyfriend satisfy the “independent witness evidence” requirement. They did not witness the accident and have no independent evidence to offer as to how it happened. Their evidence merely repeats the hearsay statements made by the plaintiff herself, and cannot, therefore, be considered to be independent.

[17] The central issue, then, is whether there is “physical evidence indicating the involvement of an unidentified automobile”.

Analysis:

[18] I start from the proposition that this coverage is intended to alleviate the plight of motorists injured by drivers of uninsured and unidentified automobiles. Since this coverage is remedial, it must be interpreted broadly and liberally: Lewis v. Economical Insurance Group, [2010] ONCA 528 at paras. 11-12.

[19] The physical evidence that is relied upon by the plaintiff in this case consists of the tire marks left on the side of the road. It is submitted by the plaintiff that this evidence indicates the involvement of an unidentified automobile, because it is consistent with the plaintiff’s evidence that she took evasive action to avoid the red pickup truck that was coming at her at high speed, crossing partially into her lane.

[20] Mr. Osterberg, for Zurich, argues that this evidence does not suffice because it does not prove that another vehicle was even present at the scene. He points to Mr. McCarthy’s admission that the physical evidence is also consistent with the plaintiff having taken evasive action to avoid an animal or a child. He suggests that the section requires some physical evidence to confirm the presence of the other vehicle, such as debris left behind, paint transfers or tire marks.

[21] In my view, that interpretation is far too narrow, and is not in keeping with the broad and liberal approach that should be taken in interpreting this legislation. The requirement for “physical evidence” does not require that the evidence emanate from the other vehicle. So long as the physical evidence “indicates” the involvement of another vehicle, it will suffice. In my view, the physical evidence does indicate that another vehicle was involved, which forced the plaintiff to take evasive action, during the course of which she left the tire marks on the side of the road.

[22] It is important to note that the section uses the word “indicate”, not “prove”. Clearly, the tire marks could not, on their own, prove that the plaintiff’s vehicle was run off the road by another vehicle. Without doubt, the tire marks are capable of many interpretations. The plaintiff could have taken evasive action because a dog or a deer ran out in front of her, or she could have entered the curve on the left side of the roadway and driven off the road due to inattentiveness. However, just because alternate possibilities can be postulated does not render the physical evidence valueless as corroboration. Circumstantial evidence, on its own, frequently leads to many possible inferences. The question here is whether it serves to indicate that another vehicle was involved, which caused the plaintiff to take evasive action. In my view, it does.

[23] Mr. Justice Doherty, speaking for the court in Pepe v. State Farm Mutual, 2011 ONCA 341, [2011] O.J. No. 2011 (C.A.) described, at paras. 14 and 15, both the reason for the corroboration requirement in OPCF 44R claims, and the nature of corroborative evidence:

The purpose of the corroboration requirement in OPCF 44R is clear. Insurers, who draft these endorsements, see themselves at a disadvantage where 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 clearly 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.

There is a long history of requiring corroboration either at common law or by statute where the evidence of one witness is regarded as insufficient to justify the finding in issue. Evidence from a second source is seen as capable of overcoming the inherent weakness in the evidence from the suspect source. Broadly speaking, both at common law and under statute, corroborative evidence is evidence from a source extraneous to the witness whose evidence is to be corroborated, that is relevant to a material fact in issue, and that tends to show that the witness whose evidence needs corroboration is telling the truth: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at paras. 37-43; Paquette v. Chubb (1988), 1988 4621 (ON CA), 65 O.R. (2d) 321 at 334-35 (C.A.), leave to appeal to S.C.C. refused [1988] S.C.C.A. No. 465; Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) 100 at 119-20 (Ont. H.C.). Chief Justice Dickson, in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811 at 826, identified the rationale for a corroboration requirement with his customary precision:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth.

[24] The plaintiff states that she was driving lawfully when she was confronted with a vehicle travelling in the opposite direction, partially crossing into her lane of travel, and she took evasive action to avoid it, as a result of which her truck left the road and overturned. The physical evidence of the tire tracks, if one accepts the evidence of Joseph McCarthy, is entirely consistent with the plaintiff’s story. It is relevant to a material fact in issue and tends to show that she is telling the truth. It clearly provides “some comfort as to the validity of the claim”.

[25] There is nothing about the physical evidence that suggests she is lying about what happened to her. One cannot equate the mere existence of alternate scenarios that are consistent with the physical evidence with an inference that the plaintiff is lying. There is no evidence whatsoever that a child or an animal ran in front of her, causing her to take evasive action. It amounts to speculation only, and does not lead to an inference that she is lying.

[26] Pepe v. State Farm concerned itself with the independent witness aspect of s.1.5(D), and thus does not provide any guidance where physical evidence is relied upon as corroboration. Counsel were, however, able to find one other case where the section in question was considered: Moein-Ziaie v. AXA Insurance Inc., [2011] O.J. No. 3505 (S.C.J.). In that case, the plaintiff driver of a tractor trailer claimed that he had been cut off by another driver on Interstate 71 in Kentucky, as a result of which his vehicle left the road and crashed.

[27] At para. 11, Pepall J. summarized the evidence that was relied upon by the plaintiff as “physical evidence” to corroborate his version of events:

The Plaintiff submits that whether an unidentified automobile was involved in the collision is a genuine issue requiring a trial. The Plaintiff submits that the following evidence constitutes physical and objective evidence that indicates the involvement of an unidentified automobile in this accident:

(i) the tractor-trailer left the Interstate roadway and travelled some distance on the shoulder;

(ii) there was a slight curve in the interstate at the point where the tractor-trailer left the roadway;

(iii) the roadway was wet;

(iv) the tractor-trailer left the gravel shoulder, proceeded on the grass bordering the interstate;

(v) the tractor-trailer ended up colliding with a rock embankment; and

(vi) the cab of the tractor-trailer was flush with the embankment, almost parallel to the roadway.

[28] In granting a motion for summary judgment dismissing the claim, Pepall J. concluded that there was no physical evidence to indicate the involvement of another vehicle. At para. 22, she made the following additional comments:

The Moving Parties do not need to rely on the evidence of Detective Roberts but if one does consider that evidence, the absence of other material evidence is bolstered. Detective Roberts saw no sign of braking and no skid marks which he would have expected to see if the Plaintiff had applied his brakes. According to Detective Roberts, the accident was caused by the Plaintiff being inattentive or falling asleep.

[29] It is significant that there was in that case no physical evidence whatsoever to indicate that the driver took any evasive action that would be indicative of the involvement of another vehicle. There was nothing in that physical evidence that suggests the plaintiff was telling the truth about being cut off by another car. By contrast, there is physical evidence in the case before me which indicates that, after having entered the curve and begun to follow it, the plaintiff took evasive action by turning her vehicle to the right.

[30] There is not a lot of physical evidence, but there is some evidence that, if Mr. McCarthy’s opinions are accepted by the jury, could be found to corroborate the plaintiff’s evidence. As Doherty J.A. said at para. 19 of Pepe v. State Farm, it is ultimately a question for the trier of fact at trial:

My conclusion that the motion judge properly held that Ms. Aguirre's evidence was corroborative means that Mr. Pepe's claim for coverage under OPCF 44R can proceed. It does not mean that it will necessarily succeed. At trial, the trial judge will have to decide whether Ms. Aguirre's evidence actually corroborates Mr. Pepe's evidence that the accident was caused by an unidentified driver. In making that determination, the trial judge will have to assess Ms. Aguirre's credibility. Her financial stake in the outcome and her personal relationship may figure in that assessment. If in the context of the entire evidence the trial judge disbelieves Ms. Aguirre, her evidence cannot corroborate Mr. Pepe's version of the accident and his claim under OPCF 44R would fail.

[31] Although the amendments to Rule 20 have conferred expanded powers on a court hearing a motion for judgment, this is not a case where it would be appropriate for me to weigh and assess the competing expert evidence to determine whether it, taken together with the physical evidence, does or does not corroborate the plaintiff’s evidence. Given the extent to which that evidence is in conflict, I would be unable to gain the “full appreciation” of the evidence that is necessary to make dispositive findings. I adopt the comments of Spence J. in Dubois v Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.) at para. 14:

In cases where there are divergent expert opinions and the credibility of the experts and their opinions is at issue, a trial will generally be required in order to fully appreciate the evidence.

[32] See also Paul v. Oliver Fuels, 2012 ONSC 978 (S.C.J.) at para. 44.

[33] There is a genuine issue for trial as to whether the physical evidence actually corroborates the plaintiffs version of events and, therefore, whether the plaintiff is entitled to make a claim under OPCF 44R. The motion for summary judgment is accordingly dismissed. If the parties cannot agree on costs, I will accept written submissions from the plaintiff within 15 days, with the response of the defendant within 10 days thereafter and any reply within 5 days thereafter.

“Heeney R.S.J.”

T. A. Heeney R.S.J.

Released: May 30, 2013

COURT FILE NO.: 62221
DATE: 2013-05-30

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ANN MARIE FEATHERSTONE and ECHO FEATHERSTONE

Plaintiffs

– and –

JOHN DOE, PILOT INSURANCE COMPANY and ZURICH INSURANCE COMPANY

Defendants

REASONS FOR JUDGMENT

T. A. Heeney R.S.J.

Released: May 30, 2013