ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-450038

DATE: 20140814

BETWEEN:

STEPHEN AZZOPARDI
Plaintiff (Responding Party)

– and –

JOHN DOE, THE PERSONAL INSURANCE COMPANY
Defendant (Moving Party)

Daniel Michaelson and Michael Wolkowicz, for the Plaintiff (Responding Party)

Mark T. Koyama, for the Defendant The Personal Insurance Company (Moving Party)

HEARD: June 6, 2014

REASONS FOR DECISION

FIRESTONE J.

[1] The moving party, The Personal Insurance Company (“The Personal”), brings this motion under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) for partial summary judgment dismissing the plaintiff’s action for any damages in excess of $200,000 arising from the motor vehicle collision of August 25, 2011.

[2] The moving party submits that the plaintiff failed to comply with the requirement of section 1.5(C) of the OPCF 44R Family Protection Coverage Endorsement (“OPCF 44R”) (Toronto: Queen’s Printer for Ontario, 2005) to provide “other material evidence” of the involvement of an unidentified automobile. As a result, it submits, there is no genuine issue requiring a trial.

FACTUAL BACKGROUND

[3] The plaintiff, Stephen Azzopardi (“Azzopardi”), resides in Toronto, Ontario. On August 25, 2011, he was driving his Honda motorcycle westbound on Dundas Street West in the city of Toronto when, he alleges, he was cut off by an unidentified vehicle, causing him to suddenly brake and make contact with the pavement with his left leg to prevent ejection. The contact resulted in significant orthopaedic injuries. There was no passenger on his motorcycle at the time.

[4] In his statement of claim (“claim”) Azzopardi pleads that the unidentified vehicle, referred to as the defendant vehicle, “was proceeding westbound on Dundas Street West where it failed to yield the right of way, entered into his lane and suddenly and without warning, the defendant vehicle unnecessarily pressed the breaks [sic] causing the plaintiff vehicle to lose control of his motor vehicle.”

[5] Azzopardi’s discovery and affidavit evidence deposes that the operator of the unidentified vehicle, which was behind him, passed him and cut him off, requiring him to suddenly brake and take evasive action. As a result, his back brakes locked, and he went into a skid and was wobbling.

[6] Azzopardi further deposes that he could feel that his motorcycle was going down. He instinctively stuck his left leg and foot onto the roadway to regain balance. His left foot hit the pavement, and he heard a horrible popping noise.

[7] This action was commenced against John Doe, being the operator of the unidentified vehicle, and Azzopardi’s own insurer, The Personal, under the unidentified and uninsured provisions of the standard automobile policy and OPCF 44R underinsured endorsement.

[8] There was no contact between the unidentified vehicle and Azzopardi’s motorcycle. Bystanders phoned 911. Ambulance, paramedics, and firefighters arrived shortly thereafter.

[9] The police did not attend the accident scene prior to Azzopardi being taken by ambulance to hospital. The police did not attend the accident scene on the day of the accident. The first accident scene investigation occurred several days later. There were no skid marks or marks on the road identified.

[10] Azzopardi’s discovery and affidavit evidence is consistent. He deposes that following the collision two men approached him and told him they had witnessed the accident but they did not get the licence plate number of the unidentified vehicle. He further deposes that while the two men were at the scene, two women also attended and called the ambulance. The two women did not witness the accident. Azzopardi was not cross-examined on his affidavit.

[11] No identifying information (names or addresses) was obtained from the bystanders.

[12] The motor vehicle accident report indicates the involvement of an unidentified vehicle. It describes the unidentified vehicle (V1) “unnecessarily braking (possible road rage)” The report further states that the plaintiff’s motorcycle, identified as V2 in the report, “lost control—gained control (injured leg) fell off motorcycle on R2.” A “Fail to Remain” report was completed by the police.

[13] Following the collision, Azzopardi attended the Humber River Regional Hospital, Church Street site.

[14] The consultation report of Dr. Barry Cayen dictated August 27, 2011, states that “[o]n August 25, 2011 at approximately 1900 hours, [Azzopardi] was a motorcyclist involved in an accident. He got sideswiped by another vehicle and planted his right foot on the ground.” This presumably was based on a self-report history obtained from Azzopardi.

[15] Dr. Cayen further states that Azzopardi “suffered an axial load to his left leg approximately 50 to 60 km per hour…. [X]-rays revealed a bicondylar tibial plateau fracture with significant comminution.”

[16] Azzopardi went on to have various surgical procedures, which included left leg fasciotomy; closed reduction, internal fixation of the tibial plateau fracture; removal of external fixation device; irrigation and the debridement of both bone and soft tissue with secondary closure of fasciotomy wounds; open reduction, internal fixation medial and lateral plateaus; and suture repair of the lateral meniscus.

[17] I note, therefore, that in addition to the history Azzopardi provided, the consultation report contains an opinion regarding both the mechanism and type of injury sustained, namely “axial load to the left leg” resulting in a “bicondylar tibial plateau fracture.”

[18] Such opinion regarding both the mechanism and type of injury is in part extrinsic to the self-report Azzopardi provided. This fact is important to the analysis that follows.

ANALYSIS

[19] In Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341, 105 O.R. (3d) 794, at para. 2, the court confirmed that the unidentified driver coverage has two components, namely a $200,000 coverage pursuant to the terms of the standard automobile policy, and additional coverage pursuant to the terms of the OPCF 44R. As in Pepe, the latter forms the basis of this motion.

[20] The applicable provisions of the OPCF 44R are ss. 1.5(C) and 1.5(D). They state 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 1.11 and 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.

[21] There is no independent witness evidence in this case. The issue on this motion is therefore whether there is any “physical evidence indicating the involvement of an unidentified automobile” as required by s. 1.5(D)(ii) of the OPCF 44R.

[22] The purpose of the corroboration requirement of “other material evidence” is to give the insurer an added level of evidentiary protection regarding the possible involvement of an unidentified automobile. In other words, such allegation must be based on something other than just the plaintiff’s self-report or “say so,” either by way of “independent witness evidence” or “physical evidence.”

[23] This is confirmed in Pepe, where at para. 14 the court states:

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 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.

[24] The court in Pepe held that the corroborative evidence requirement is met where there 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” (at para. 15).

[25] Section 1.5(D)(ii) requires “physical evidence indicating the involvement of an unidentified automobile.” The section is not limited to only physical evidence at the scene. There is nothing in the section which limits its application in that way. What is required is physical evidence extrinsic to the plaintiff’s self-report that supports and is consistent with the plaintiff’s story.

[26] As confirmed in Gyorffy v. Drury, 2013 ONSC 1929 (Div. Ct.), 116 O.R. (3d) 387, at para. 16,

It is now well established that there is only one governing principle or approach to statutory interpretation. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.

See also Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 40-42.

[27] Therefore, the physical evidence requirement is not limited to those situations where there is physical evidence at the scene which may be consistent with the plaintiff’s version of events, such as skid marks or contact between the plaintiff’s vehicle and the unidentified vehicle. To limit the section in this way would, in my view, create an unintended and unfair restriction in coverage, and preclude potential recovery in those situations where there is no contact between vehicles and no skid marks or other physical evidence at the scene. The section does not by its wording place such limit or restriction on what can constitute “physical evidence.”

[28] OPCF 44R coverage is remedial. As a result, it is to be interpreted broadly and liberally: Lewis v. Economical Insurance Group, 2010 ONCA 528, 103 O.R. (3d) 494, at para. 12. If such restriction was intended, the section would say so.

[29] What is required is some physical evidence (extrinsic to the plaintiff’s self-report) that is consistent with the plaintiff’s story that he was cut off by an unidentified driver, which required him to take evasive action by braking and making contact with the asphalt with his left leg while in motion.

[30] I agree with the analysis of Heeney J. in Featherstone v. John Doe, 2013 ONSC 3175, that s. 1.5(D)(ii) does not require that such physical evidence prove that another vehicle was present. The subsection says “indicating the involvement,” not “proving the involvement.”

[31] In the context of tire marks, Heeney J. states as follows, at para. 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.

[32] This same reasoning applies to any other physical evidence indicating the involvement of an unidentified vehicle.

[33] In this case the consultation report of Dr. Barry Cayen confirms that Azzopardi suffered “an axial load to his left leg” which resulted in a “bicondylar tibial plateau fracture.” The mechanism and type of injury unique to this case confirmed by way of x-ray is consistent with Azzopardi’s version of events of him braking and putting his leg down on the roadway at a high rate of speed to regain control after being cut off. This evidence, if accepted, would constitute “physical evidence indicating the involvement of an unidentified automobile.”

[34] The facts of this case are distinguishable from those in Moein-Ziaie v. AXA Insurance Inc., 2011 ONSC 4626, where there was no physical evidence which would indicate that the driver took evasive action because of an unidentified vehicle. This is not the case here.

[35] I therefore find that the evidence contained in the consultation report of Dr. Barry Cayen dated August 27, 2011, if accepted by the jury, could corroborate Azzopardi’s version of events regarding the involvement of an unidentified vehicle. Such evidence, if accepted, would qualify as “physical evidence indicating the involvement of an unidentified automobile” for the purposes of ss. 1.5(C) and (D)(ii) of the OPCF 44R.

[36] There is a genuine issue requiring a trial in order to determine whether such evidence actually corroborates Azzopardi’s evidence regarding the involvement of an unidentified vehicle.

[37] Having found a genuine issue requiring a trial, I am to determine whether, in accordance with the principles set forth in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 the need for such a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). I may, at my discretion, employ those powers, provided such use is not against the interest(s) of justice.

[38] The Ontario Court of Appeal in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 33 confirms the principle in Hryniak that the motion judge must “assess the advisability of the summary judgment process in the context of the litigation as a whole.” In Hryniak the Supreme Court specifically states, at para. 60, that the “‘interest of justice’ inquiry goes further, and also considers the consequences of the [summary judgment] motion in the context of the litigation as a whole.”

[39] In this case the interest of justice requires that the determination of whether or not the plaintiff’s evidence is corroborated by other material evidence be made at trial, especially given that this case is proceeding to trial in any event. Proceeding in this fashion will better serve the goals of timeliness, affordability, and proportionality.

[40] As a result, the defendant’s motion for partial summary judgment is dismissed.

[41] The Supreme Court of Canada directs in Hryniak, at para.78, that when a motion judge dismisses a summary judgment motion, he or she should remain seized of the matter, in the absence of compelling reasons to the contrary.

[42] In my view, the purpose behind the Supreme Court’s direction would not be well served in the circumstances of this case. I made no findings about the evidence on this motion beyond saying that there is a genuine issue for trial: see Huang v. Mai, 2014 ONSC 1156, 119 O.R. (3d) 117, at para. 52. There also appears to be no need for case management. I, therefore, exercise my discretion not to remain seized of this case.

[43] If the parties cannot agree on costs, I may be contacted in order to set a timetable for the delivery of cost submissions.

Firestone J.

Released: August 14, 2014