ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: 14-119551

DATE: 20151211

BETWEEN:

KATHRYN DANIELLE PAOLUCCI

Plaintiff

– and –

JOHN DOE and ECONOMICAL INSURANCE COMPANY

Defendant

S. Sieger, for the Plaintiff

P. Cianfarani, for the Defendant

HEARD: November 17, 2015

REASONS FOR DECISION

QUINLAN J.:

Overview

[1] The plaintiff was involved in a motor vehicle collision on July 31, 2012 at 1:16 a.m. Her vehicle left the travelled portion of the roadway. She alleges that she saw lights in front of her and that an unknown vehicle suddenly crossed into her lane, causing her to swerve and strike a utility pole. The identity of the alleged driver and vehicle has never been determined. The plaintiff brought an action against “John Doe” and her own automobile insurer, the defendant Economical Insurance Company (Economical), for unidentified motorist coverage.

[2] Economical’s policy covers injuries caused to the plaintiff as a result of the negligence of an unidentified driver. The unidentified driver coverage has two components: $200,000 standard coverage pursuant to the terms of the standard Ontario Automobile Policy (OAP), and an additional $800,000 coverage provided by the OPCF-44R Family Protection Coverage Endorsement OPCF 44R (OPCF 44R).

[3] The coverage under the OAP is available if the plaintiff establishes on a balance of probabilities that the accident was caused by an unidentified driver. The unidentified driver coverage under the OPCF 44R is available only if the evidence of the plaintiff is corroborated by “other material evidence”.

[4] Economical seeks summary judgment dismissing the plaintiff’s action against it in its entirety in relation to both the plaintiff’s claim for coverage under the OAP and the OPCF 44R. In the alternative, Economical seeks partial summary judgment dismissing the plaintiff’s claim for coverage under the OPCF 44R and a mini-trial in relation to the OAP claim.

Procedural History

[5] The plaintiff commenced her action on July 31, 2014. In the Statement of Claim, she states that:

Suddenly and without warning, the Doe Motor Vehicle began travelling eastbound … in the westbound lane, causing the [plaintiff] Motor Vehicle to swerve to avoid a collision. As a result, the [plaintiff] Motor Vehicle struck a pole and caught fire, causing physical and emotional/psychological injuries to the Plaintiff.

[6] The plaintiff has claimed against Economical, her own insurer, “in the event that the party responsible for the motor vehicle accident … cannot be identified.”

[7] Economical delivered a Statement of Defence and Cross-Claim dated September 2, 2014. Among other things, Economical takes the position that “the plaintiff has failed to provide any evidence whatsoever that an unidentified motorist was involved in the Accident.”

[8] On or about May 29, 2015, Economical served its Motion Record for summary judgment. The plaintiff delivered her Responding Motion Record on or about September 18, 2015. In her Responding Motion Record, the plaintiff appended as an exhibit to her affidavit the Report of a Motor Vehicle Collision, prepared by Bigelow Accident Reconstruction Inc. For oral reasons delivered at the commencement of and in the course of the motion, after considering the decision of Strathy J. (as he then was) in Suwary v. Women’s College Hospital, 2008 8789 (ON SC), I ruled that the plaintiff could not call the expert to give evidence at the summary judgment motion and could not rely upon the expert’s report.

Issues

[9] The issues to be decided on this motion are whether there exists a genuine issue requiring a trial in relation to:

(a) the plaintiff’s claim to the $800,000 coverage under the OPCF 44R; and

(b) the plaintiff’s claim to the $200,000 coverage under the OAP.

Law on a Summary Judgment Motion

[10] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4, 49, 58, 60 and 66, the Supreme Court of Canada provided trial courts with the following principles, which guide the approach to be taken on a summary judgment motion:

(a) A trial is not required if a summary judgment motion can achieve a fair and just adjudication and provide a process that allows the judge to make the necessary findings of fact and apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than a trial.

(b) The assessment may also involve a comparison of the evidence that will be available at trial and on the motion, as well as the opportunity to fairly evaluate it. Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.

(c) The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

(d) If the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, there will be no genuine issue requiring a trial. If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the new fact-finding powers, provided that their use is not against 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.

[11] The court still must consider established principles regarding the evidentiary obligations of parties on a summary judgment motion. The motion judge is entitled to assume that there is a complete evidentiary record and that the parties have put their best foot forward. A responding party cannot solely rely on bald allegations or unfounded assertions that there is a genuine issue requiring trial: 790668 Ontario Inc. v. D’Andrea, 2014 ONSC 3312, aff’d 2015 ONCA 557; Rogers Cable TV Ltd. v. 373041 Ontario Ltd., 1994 7367 (ON SC), 22 O.R. (3d), at pp. 28-29.

The OPCF 44R Family Protection Coverage Endorsement

[12] Section 1.5 of OPCF 44R provides coverage where an accident is caused by an uninsured or unidentified automobile. However, as noted in Featherstone v. John Doe, 2013 ONSC 3175, at para. 15, “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 … 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 … or a dependent relative …; or

(ii) physical evidence indicating the involvement of an unidentified automobile.

[13] The purpose of the requirement for corroboration is to limit the scope of the insurer’s exposure to “those cases where the corroborative evidence provides some comfort as to the validity of the claim”: Pepe v. State Farm Mutual Automobile Insurance Company, 2011 ONCA 341, at para. 14.

[14] Economical submits that the plaintiff has no other material evidence that meets the requirement of OPCF 44R. There is no independent witness evidence and no physical evidence indicating the involvement of any unidentified automobile. As such, they submit that the plaintiff’s OPCF 44R claim must fail and that the motion for summary judgment on the OPCF 44R claim should be granted.

[15] The plaintiff submits that whether an unidentified automobile was involved in the collision raises a genuine issue requiring a trial. The plaintiff submits that the following evidence constitutes independent and physical evidence that indicates the involvement of an unidentified automobile in this accident:

(i) the Ambulance Call Report notes that within one-half hour of the accident, the plaintiff told ambulance attendants she had swerved to avoid a motor vehicle in her lane. The timeliness of the plaintiff’s report supports the credibility and reliability of her evidence;

(ii) the plaintiff told hospital personnel that she “avoided something and hit a pole”;

(iii) in the motor vehicle accident report (MVAR), the police officer noted:

(a) the plaintiff’s condition as normal;

(b) that it was dark; and

(c) that an unknown vehicle was on the roadway and the plaintiff turned to the right to avoid a head-on collision and hit a pole.

Is There Independent Witness Evidence?

[16] At her cross-examination on her affidavit, the plaintiff testified that there were no witnesses that either saw her car leave the road or saw the “other car with the lights”. The evidence of the plaintiff’s statements to ambulance personnel, hospital personnel and police are merely a repetition of the statements made by the plaintiff and cannot be considered to be independent of the plaintiff’s assertion that the accident was caused by an unidentified automobile: Featherstone, at para. 16; Chmielewski v. Pishchak, 2014 ONSC 1133, at para. 6. The evidence of what the plaintiff told others is not “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”: Pepe, at para. 15.

[17] The “conclusion”, if it can be called that, of the author of the MVAR that there was an unknown vehicle is not independent witness evidence: there is no evidence before me to support how the officer came to that “conclusion”. As there were no witnesses to the accident, it is reasonable to infer that the information came from the plaintiff. Had the plaintiff wished to rely on the content of the MVAR, an affidavit from the officer upon which he could have been cross-examined deposing to the source of the information or the basis for his “conclusion” should have been proffered.

Is There Physical Evidence Indicating the Involvement of an Unidentified Automobile?

[18] At her cross-examination on her affidavit, the plaintiff testified that:

(a) there was no physical contact between her vehicle and the unidentified vehicle;

(b) she is not aware of any evidence at the scene of another vehicle being there;

(c) she did not see a tail light, a muffler, or any other parts of another vehicle; and

(d) she did not see any brake marks or tire marks on the roadway.

[19] There was no sign of braking or tire marks as in Featherstone, at para. 21, suggesting the plaintiff had taken evasive action to avoid an oncoming vehicle. In the absence of such evidence, the fact that the plaintiff’s vehicle left the roadway and collided with a utility pole is not “physical evidence indicating the involvement of an unidentified automobile”. The physical evidence must “indicate” the involvement of another vehicle. This case can be distinguished from Armstrong v. Dominion of Canada General Insurance Co., 2013 ONSC 1949, where there was physical evidence of braking that corroborated Ms. Armstrong’s evidence that she swerved to avoid an oncoming car.

[20] There is nothing about the “mechanism or type of injury” sustained by the plaintiff that indicates the involvement of an unidentified vehicle: Stephen Azzopardi v. John Doe, 2014 ONSC 4685. The plaintiff sustained burn injuries to various parts of her body but the hospital records clearly state that the plaintiff’s “shirt caught fire” after the collision, when she was “inspecting [her] car from [the] outside”.

[21] The officer’s reference to an unknown vehicle is of no assistance: there is no evidence before me as to the source of that information or the basis for that conclusion. The officer’s notation of the plaintiff’s condition as normal and of it being dark at the time of the accident would not in any event constitute physical evidence indicating the involvement of another vehicle.

Should Summary Judgment be Granted with Respect to the Plaintiff’s OPCF 44R Claim?

[22] I am satisfied that a summary judgment motion on the plaintiff’s OPCF 44R claim can achieve a fair and just adjudication, that I can make the necessary findings of fact and apply the law to those facts, and it is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. The resolution of this important claim significantly advances access to justice: Hryniak, at paras. 4 and 60. I am entitled to assume that the plaintiff has put her best foot forward: the evidence identified by the plaintiff and described in para. 15 herein does not constitute “other material evidence” of the involvement of another vehicle. I am mindful that this insurance coverage is “remedial”, and as such must be interpreted broadly and liberally: Lewis v. Economical Insurance Group, 2010 ONCA 528, at para. 12. However, there must be reasonable limits on any interpretation, even while keeping these principles of interpretation in mind. The evidence in this case does not meet any reasonable interpretation of either the “independent witness” or the “physical evidence indicating” requirement. I find there is no genuine issue requiring a trial. There is no “other material evidence” to corroborate the plaintiff’s evidence of the involvement of an unidentified automobile and therefore, whether the plaintiff is entitled to make a claim under OPCF 44R.

The OAP Claim

[23] Unlike the coverage afforded by the OPC 44R, the $200,000 standard coverage under s. 5 of the OAP “does not appear to require corroborative evidence”: Chmielewski, at para. 11. However, the plaintiff’s uncorroborated testimony must still be “convincing” and satisfy the court, on a balance of probabilities, that an unidentified vehicle was involved: Chmielewski, at para. 11.

[24] Economical’s position is that is it equally or more credible that the plaintiff was inattentive, tired or self-destructive. Economical argues the following factors demonstrate that the plaintiff’s uncorroborated testimony is neither credible nor reliable:

(i) the plaintiff’s reference to “lights” does not even support the presence of a vehicle;

(ii) the plaintiff’s credibility is undermined by her delay in reporting;

(iii) the plaintiff’s credibility is complicated by her pre-existing mental health issues; and

(iv) the circumstances of the collision are inherently suspect.

[25] The plaintiff’s position is that the evidence of the plaintiff’s pre-accident mental health is not evidence of her mental state at the time of the accident and is akin to evidence of prior sexual history; the factors set out as described in para. 15 herein and in the plaintiff’s affidavit support the credibility and reliability of her evidence.

[26] At her cross-examination, the plaintiff confirmed the following: she has had long-standing mental health issues and was suffering from continuing feelings of depression approximately a month before the collision. She was in a volatile relationship with an abusive partner that was not “going very well”. The collision occurred on her first or second day back from a 10 to 14-day business trip. Upon her return, the plaintiff had an argument with her partner and left their home. She went to her family’s farm, arriving between 11:30 and 11:45 p.m. Her reason for going to the farm was partly because she was upset about the argument with her partner and wanted to think about the future of their relationship. The plaintiff left the farm just before 1:00 a.m. to drive to her parents’ home. On the roadway, she suddenly noticed a light right in front of her and immediately swerved to the right. Although she never got a clear view of the vehicle and was just guessing, the plaintiff thought the vehicle was a truck. (Economical’s counsel did not refer to this evidence in the course of oral submissions, but it was included in a reference in Economical’s factum.) The plaintiff knew of no witnesses who saw the lights of the other vehicle, the other vehicle, or her vehicle leave the roadway. In her affidavit, the plaintiff deposed that she had not consumed any alcohol or illegal drugs before the accident and she was awake, alert and not distracted by anything. She had no intention of damaging her vehicle, injuring herself or committing suicide.

Should Summary Judgment be Granted with Respect to the Plaintiff’s OAP Claim?

[27] The plaintiff claims she was swerving after having seen lights that she “guessed” were from a truck. I do not accept Economical’s submission that the plaintiff’s reference to lights is unrelated to lights from a vehicle and that this in some way undermines the credibility or reliability of the plaintiff’s evidence.

[28] There is no evidence as to when the plaintiff reported to ambulance personnel that there had been another vehicle. The hospital triage record does not mention a second vehicle; the plaintiff later told a nurse she “avoided something and hit a pole”. Although the plaintiff did not tell police about a vehicle for more than an hour after the collision, a fair reading of the officer’s notes to which Economical directed the Court leads me to infer that she could not speak to the police earlier because of her physical condition, the burns she had sustained and the presence of emergency medical personnel. I do not accept Economical’s submission that the timing of the plaintiff’s report necessarily undermines her credibility.

[29] The extent to which any pre-existing mental health issues and the circumstances of the collision weigh against the plaintiff’s credibility are difficult to assess on a paper record and without full argument as to the admissibility and/or relevance of such evidence to the plaintiff’s state of mind at the time of the accident.

Conclusion on the OAP Claim

[30] In determining whether there is a genuine issue requiring a trial in relation to the plaintiff’s OAP claim, I have considered the admissible evidence submitted by the parties. I find that the need for a trial cannot be avoided by using the fact-finding powers set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I have attempted to weigh the evidence, evaluate the credibility of the plaintiff and draw inferences from the evidence; however, I am not satisfied that I can make the necessary findings of fact. This matter is not appropriate for the kind of “mini-trial” contemplated by Rule 20.04(2.2). There may be expert evidence by each of the parties. Economical has filed a Jury Notice. This gives both parties the right to trial by jury: Isaacs v. MHG International Ltd., 1984 1862 (ON CA); Gianopoulos v. Olga Management Ltd., [2004] O.T.C. 1016, 2004 CarswellOnt 4729 (S.C.) at para. 12. While service of a Jury Notice does not preclude the court from granting summary judgment,

[T]he removal of that substantive right to a jury, by way of a summary judgment motion, should occur only in the face of relevant admissible and compelling evidence that leaves the motion judge confident that he or she has the necessary facts that will allow him or her to apply the relevant legal principles so as to resolve the dispute ... [I]t seems to me 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” (Mitusev v. General Motors Corp., 2014 ONSC 2342, at paras. 85 and 91).

Summary judgment is not a proportionate means by which to resolve the plaintiff’s OAP claim.

[31] Under Rule 20.05, I may make an order specifying what material facts are not in dispute and defining the issues to be tried. It is clear from the pleadings and the material before me that, save and except for the issue of the plaintiff’s damages, the presence or absence of another vehicle is the issue to be tried. This may therefore be an appropriate case for the parties to consider a consent bifurcation of the issues of liability and damages under Rule 6.1.01 because if the plaintiff fails in her proof of an unidentified vehicle, that would end the matter.

[32] In jurisdictions where judges must travel throughout the region, it becomes difficult for judges to remain seized of cases where there is no need for them to do so. It could be unmanageable and “present significant timing and cost impediments to having a trial dealt with in an expeditious and timely fashion” if I were to seize myself with the matter as trial judge: Mitusev, at para. 96. There is no reason for me to be seized of this trial.

Conclusion

[33] Economical is entitled to partial summary judgment: its request for summary judgment dismissing the plaintiff’s claim for coverage under the OPCF 44R is granted.

[34] Economical’s request for summary judgment dismissing the plaintiff’s claim for coverage under the OAP is dismissed.

Costs

[35] If the parties are unable to agree on costs, I will receive written submissions from Economical by January 13, 2016, followed by responding submissions from the plaintiff by January 23, 2016. Costs Submissions shall be no more than three pages in length, exclusive of any Costs Outline or Offers to Settle, and are to be forwarded to me through my Judicial Assistant in Barrie. If no submissions are received by January 23, 2016, the issue of costs shall be deemed to have been settled as between the parties.

QUINLAN J.

Released: December 11, 2015