Manuel v. State Farm Mutual Insurance Company, 2016 ONSC 7066
COURT FILE NO.: 544-15 DATE: 2016/12/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Joseph Bruce Manuel Plaintiff
– and –
State Farm Mutual Insurance Company Defendant
Ms. Vicki Edgar for the Plaintiff
Mr. Talaal Bond for the Defendant
HEARD: October 5, 2016
REASONS FOR JUDGMENT
leitch j.
[1] The plaintiff alleges he has suffered damage as a result of an accident caused by an unidentified driver. He has brought this action against his insurer relying on s.5.2.1 of Ontario Automobile Policy (“O.A.P. 1”) which provides that his insurer will pay him any amounts he would have a right to recover as damages from the owner or driver of an unidentified automobile for bodily injury resulting from an accident involving the automobile.
[2] The defendant brings this motion pursuant to R. 20, seeking an order dismissing the plaintiff’s action on the basis that it is statute barred for failure to comply with O.A.P. 1, the Insurance Act, R.S.O. 1990, c. I.8 and the associated O. Reg. 676 as the plaintiff did not report the alleged incident to the police or his insurer within the time prescribed, or at all; the accident could not have occurred as described by the plaintiff; and this claim cannot succeed because the accident was not caused by an unidentified automobile.
[3] The plaintiff resists the motion arguing that the factual disagreements as to how the accident occurred and the reasonableness of the plaintiff’s actions after the accident require a trial for their resolution.
The preliminary evidentiary issue on the motion:
[4] Rule 39.04(2) prohibits a party from using his own examination for discovery as evidence on the hearing of a motion unless the other party consents. It has been held that this rule applies equally to motions for summary judgment: see Lana International Ltd. v. Menasco Aerospace Ltd., 2000 ONCA 16845. In this case, the defendant did not consent to the plaintiff using his examination for discovery as his evidence on this motion. Therefore, as required by R. 39.04(2), Schedule A of the plaintiff’s responding motion record, which was the transcript of his examination for discovery, was excised from the responding motion record and was not considered at the hearing of this motion.
[5] The plaintiff took issue with the propriety of the defendant attaching its expert report as an exhibit to counsel’s affidavit. It was agreed that the expert report would also not be considered, save and except for the photographs contained in the report at pages 5, 6, 7, 8 and 10 and the plaintiff’s diagram set out on page 9 of the report.
The evidence on the motion
[6] The plaintiff issued his statement of claim on March 19, 2015 claiming damages arising from an accident that occurred on September 3, 2014.
[7] The plaintiff, driving a motorcycle, exited westbound from an alleyway and turned northbound onto Richmond Street in London, Ontario. The defendant’s motion record contained excerpts from the plaintiff’s examination for discovery. On his examination for discovery on November 17, 2015, the plaintiff testified that a London Transit bus, stopped to his left in the curb lane, was his “protection”. He alleged that an unidentified automobile was beside the bus. As he turned right into the curb lane of Richmond Street, the unidentified vehicle moved over beside him into his lane. He turned to avoid a collision with the unidentified vehicle. In doing so, he was thrown from his motorcycle.
[8] In his examination for discovery, the plaintiff indicated that he sought the assistance of a lady with a microphone in her hand, asked her to help him reach his inhaler and sat with her probably a minute and a half. He commented that “when you are not breathing you’re very screwed up”. When he was asked on his examination for discovery if he got the licence plate number of the green car, which was his description of the car which appeared “out of nowhere” and entered his lane and came right over beside him, he responded “oh no, hell no”.
[9] According to his evidence on discovery excerpted in the defendant’s motion record, he never thought to call the police when he was in a hospital bed. He called the police a week later to find out what was going on thinking that “with all those witnesses, somebody would have said something” and presuming that “an ambulance driver would have to say something in some type of report or the bus driver”. He deposed that he was informed by the police that it was too late.
[10] The ambulance call report, which was also part of the defendant’s motion record, indicated that the call “self-dispatched” because they came across the plaintiff while driving along the road.
[11] Under incident history, the ambulance attendants noted that “Pt attempted to pick up his bike and strained his back”.
[12] In his affidavit sworn in response to this motion, the plaintiff deposed at paragraphs 4, 5 and 6 as follows:
After I checked for traffic I pulled out into the approximate centre of the curb lane and began to accelerate to 60 kilometres per hour. As I began to accelerate I noticed a green car in the centre lane begin to enter the curb lane towards me. As the green car moved into the curb lane I was forced to steer away from the car and towards the edge of the road. As I got closer to the curbside my motorcycle fell over and I fell from the bike. There was no other evasive action available to me.
My motorcycle and the green car never made contact. The green car did not stop to render any assistance. Unfortunately I was unable to note the licence plate number of the green car as it approached me from the side and I had fallen off my motorcycle and was on the ground as it drove away.
As a result of the accident I was thrown approximately 7 feet from my motorcycle. I was transported to hospital by ambulance and I was treated for a spinal fracture as well as other injuries. I was put on morphine and had significant pain so was not thinking clearly. I assumed that as an ambulance was called the police would have also been notified of my accident. By the time I realized they had not been notified, I did not believe that the Police would have been able to locate the driver of the vehicle.
[13] The plaintiff applied for accident benefits from the defendant, his insurer, following the accident and submitted his OCF-1, dated October 1, 2014, the month following the accident.
[14] In providing a brief description of the accident the plaintiff indicated the following:
I was on motor cycle after making right turn onto Richmond St. I was forced to the right. Bike fell & for my safety tried to get it off busy St. & off of me.
[15] The plaintiff’s lawyer contacted the defendant to advise that she had been retained on November 24, 2014.
Relevant statutory provisions of the Insurance Act
[16] Section 265(2) of the Insurance Act, defines “unidentified automobile” as “an automobile with respect to which the identity of either the owner or driver cannot be ascertained”.
[17] Section 5.1.3 of O.A.P. 1 defines an “unidentified automobile” as “one whose owner or driver cannot be determined”.
[18] Pursuant to s. 3 of O. Reg. 676, if an insured sustains bodily injury caused by an unidentified automobile, the insured is to report the accident to a police officer within 24 hours and give a written statement to the insurer within 30 days after the accident occurs or as soon as is practicable after that time.
[19] Similarly, s. 5.3.5 of O.A.P. 1 contains the same requirements.
[20] In addition, pursuant to s. 6 of O. Reg. 676 and section 5.3.4 of O.A.P. 1, the plaintiff was required to give a written notice to his insurer of his claim for injuries caused in an accident with an unidentified automobile within 30 days of the accident and such proof as is reasonably possible of the accident and resulting loss within 90 days.
[21] Section 8(1) of O. Reg. 676 provides that no person is entitled to bring an action to recover an amount provided for under the contract as required by s.265(1) of the Insurance Act unless the requirements of the regulation with respect to the claim have been complied with.
[22] According to the defendant, the above noted requirements are statutory conditions precedent to commencing an action for coverage with respect to an unidentified vehicle.
[23] However, s. 129 of the Insurance Act provides that where there has been imperfect compliance by an insured with a statutory condition as to the proof of loss, or other matter or thing required to be done by the insured with respect to the loss, and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may grant relief against the forfeiture or avoidance on such terms as it considers just.
Issue #1 – Is there a genuine issue requiring a trial with respect to whether the plaintiff is entitled to relief from forfeiture?
[24] The defendant concedes that failure to comply with O. Reg. 676 and O.A.P. 1 amounts to imperfect compliance: see Dams v. TD Home and Auto Insurance Co., 2016 ONCA 4, 129 O.R. (3d) 226.
[25] The parties agree that the appropriate test to apply when considering whether an insured should be granted relief from forfeiture requires the plaintiff to demonstrate the following: a) that his conduct was reasonable; b) that the breach of the condition was not grave; and c) that there is a disparity between the value of the property forfeited and the damage caused by the breach: see Kozel v. Personal Insurance Co., 2014 ONCA 130, 119 O.R. (3d) 55.
[26] The defendant relies on Monico v. State Farm Mutual Automobile Insurance Co., 2015 ONSC 2697, 254 A.C.W.S. (3d), where that plaintiff’s conduct was found to be unreasonable because the plaintiff had “sat back and did nothing”.
[27] The defendant asserts that the breach of the condition was grave in depriving the defendant and the police with the opportunity to investigate the plaintiff’s claim.
[28] Further, the defendant asserts that in relation to the third factor in the test, the balance of proportionality favours the defendant. The defendant takes the position that given the passage of time and the plaintiff’s failure to obtain the names or contact information of any of the potential witnesses (which it notes includes the bus driver sitting in the stopped bus, a woman who assisted the plaintiff at the scene of the accident, a female reporter, a gentleman waiting at the bus stop, “two guys” who the plaintiff asked for help and two ambulance attendants), it would be virtually impossible for the defendant to initiate any procedure to locate witnesses or otherwise corroborate the plaintiff’s unsubstantiated claims.
[29] Overall, the defendant asserts that the plaintiff should not obtain relief from forfeiture and summary judgment is appropriate in its favour.
[30] I reach a conclusion different from the position advanced by the defendant and am satisfied that there is a genuine issue requiring a trial in relation to the question of whether the plaintiff is entitled to relief from forfeiture.
[31] Firstly, unlike the plaintiff in Monico who was found to have wilfully ignored her reporting obligations, there is a genuine issue as to whether the plaintiff’s assumption, that the police would have been called because an ambulance had been called, is reasonable.
[32] In addition I note that on his application for accident benefits dated 29 days after the accident, the plaintiff indicated in his description of the accident that he was “on motor cycle after making right turn onto Richmond St. I was forced to the right. Bike fell & for my safety tried to get it off busy St. & off of me”. I agree with the plaintiff that this information could be considered suggestive of the accident involving an unidentified vehicle.
[33] Further, as plaintiff’s counsel notes, the fact that the plaintiff’s application for accident benefits contains a claim number suggests that the plaintiff had reported the accident to his insurer prior to completing the application.
[34] There is also the fact that the plaintiffs’ lawyer was in contact with the defendant two and a half months after the accident.
[35] I find that there is a genuine issue to be determined as to whether the plaintiff’s, belief that, having made application to his insurance company within 30 days of the accident, he had provided them with the required information respecting the accident and its circumstances, was reasonable.
[36] There are also genuine issues relating to whether the breach of the conditions are grave and whether proportionality favours the plaintiff. I note that there is no evidence of any prejudice to the defendant and no evidence that it would have done anything differently.
[37] I agree with the plaintiff that these circumstances are different from those before the court in Monico where there was no mention of the accident in issue in medical records, the plaintiff had not applied for accident benefits for three years and the plaintiff made a conscious decision not to contact her insurance company and not to contact the police.
[38] These circumstances are also distinct from Monico in relation to the fact that in Monico written notice was provided to the insurer prior to the issuance of the action.
[39] These circumstances are more in line with those before the court in Dams where the court held that the notice requirements were not conditions precedent to a claim and the trial judge was correct to grant relief from forfeiture. In the Court of Appeal decision, which dealt only with the issue of the trial judge’s jurisdiction to grant relief from forfeiture, it was noted that the plaintiff made an accident benefit claim 2.5 months after the accident and sent a statutory declaration to his insurer 6 months after the accident.
[40] I am satisfied that there is a genuine issue for trial in relation to the issue whether plaintiff should be granted relief from forfeiture of the applicable provisions of the Insurance Act and decline to dismiss his claim on the basis of non-compliance with the applicable provisions of the O.A.P. 1 and O. Reg. 676 described above.
Issue #2 - Is there a genuine issue requiring a trial with respect to whether the green car the plaintiff alleges entered his lane meets the definition of an unidentified automobile, and that his injuries were caused by the unidentified vehicle?
[41] The defendant’s position is that there was no unidentified automobile involved in the alleged incident and there are no further facts that might arise that will have a bearing on this issue.
[42] The defendant submits that the plaintiff has failed to submit any corroborating evidence to establish the presence of an unidentified automobile and therefore there is no genuine issue in relation to whether the plaintiff meets the requirements of section 5.2.1 of OAP 1. The defendant notes, as set out above, that there were a number of witnesses at the scene whose identity could have been readily ascertainable and there is no evidence that the plaintiff took any steps to ascertain the vehicle in issue or to obtain any witness’ name.
[43] Further, the defendant submits that even if an unidentified vehicle was involved in the alleged incident, there is no genuine issue for trial that the plaintiff’s damages were caused by the unidentified automobile.
[44] In particular, the defendant emphasizes that the plaintiff’s description of the accident and his diagram does not reflect the fact that there is a bus bay in the relevant part of the roadway and as a result the bus would not have been in the curb lane. Further the defendant notes that according to the ambulance call report, the plaintiff indicated that he sustained his injuries from lifting his motorcycle and not from being thrown from his motorcycle.
[45] As the defendant notes, the plaintiff bears the onus of proving that the identity of the vehicle causing the accident cannot be ascertained: see Vescio v. Peterman, 1999 ONCA 2299.
[46] The defendant also refers to a recent decision of this court in Hooper v. John Doe, 2015 ONSC 2745, 253 A.C.W.S. (3d) 195, where the court, referencing a decision of the British Columbia Court of Appeal in Leggett v. Insurance Corp. of British Columbia (1992), 1992 BCCA 1263, 18 B.C.A.C. 281, held at para. 42 that “there is an obligation on claimants to exercise some reasonable due diligence to identify the wrongdoer”.
[47] The defendant on this motion asserts that the plaintiff has exercised no reasonable due diligence at all as evidenced by his failure to record the licence plate of the green car, failing to report the incident to police and failing to obtain contact information from potential witnesses.
[48] In Leggett there was a finding, as noted by the Court of Appeal at para. 11, that the plaintiff knew he had been involved in an accident but refrained from reading the licence number of the other vehicle even though he could reasonably have recorded it. Such a finding cannot be made on this motion.
[49] In Hooper, where a plaintiff was injured entering into a taxi, Perrell J. helpfully considered Leggett and other applicable case law relevant to the issue (which is limited). To use his words at para. 30, the defendant’s argument on this motion is that “there is no “unidentified automobile” because with due diligence the identity of the owner or driver would have been “ascertained” and therefore, it is not the case that there is “an automobile, with respect to which the identity of either the owner or drive cannot be ascertained.” Ultimately, he found at para. 45 that “the identity of the driver of the taxi was ascertainable before a claim was made for unidentified driver coverage… It is conceivable that the identity of the driver could be ascertained today.” I cannot make such a finding of fact in these circumstances.
[50] In Lambert v. Khan, 2016 ONSC 103, 262 A.C.W.S. (3d) 1031, Dunphy J. faced a situation where the plaintiff was injured while as a passenger in a taxi cab, which was allegedly rear ended by a white van. The plaintiff claimed the taxi driver identified the driver of the white van. The plaintiff brought her action two years after the accident against her own insurer under OPCF 44. At that point in time she requested details regarding the white van from her taxi driver who had lost that information.
[51] As Dunphy J. observed at paras. 9, 43 & 44,
[9] The plaintiff’s evidence amounts to an admission that she suffered damages arising from a collision caused by an at-fault motorist who was both easily identifiable at the time of the accident and who was actually identified. She herself took no steps to identify the drive but satisfied herself that the necessary information had been recorded by her taxi driver. She did not request the information from him for almost two years by which time it was lost. Neither the Insurance Act, s. 265, R.S.O. 1990, c. 1.8, the regulations thereunder nor OPCF 44R admit of the concept of an automobile or driver becoming unidentified days, weeks or even years after the accident by reason of subsequent events. She did not qualify for coverage under OPCF 44R at the time of the accident and cannot acquire coverage thereafter solely by reason of the information being lost. Relief from forfeiture cannot be employed to attach exposure to an insurer who was not originally liable at the time of the accident…
[43] Not only could the motorist be located through the simple expedient of recording the license plate number at the time of the happening of the accident, but both Ms. Lambert [the plaintiff] and Mr. Kahn [the taxi driver] concur that this is exactly what happened.
[44] This was no hit and run. It was a very minor incident to which no party attributed any particular importance at the time. Neither vehicle involved made any attempt to avoid identification. Both vehicles remained at the scene for several minutes. Indeed, given the state of congestion on the road, no other option was possible.
[52] These facts are also distinct from Lambert. The green car and its driver were not located at the time the accident happened. Unlike Lambert there is no evidence that the green car remained at the scene for several minutes. Also unlike Lambert, the green car did not become unidentified after the accident by reason of subsequent events.
[53] While the plaintiff admitted he encountered a number of individuals as described above, he deposed in his affidavit filed in response to this motion and indicated in the portions of his examination for discovery filed by the defendant that the green car did not stop, he was thrown 7 feet, he had trouble breathing, he was in significant pain, he was put on morphine and he was transported by ambulance to hospital for treatment of a spinal fracture.
[54] Given the plaintiff’s description of the accident, his injuries and the unknown extent of observation, if any, of those who assisted him, there is a genuine issue requiring a trial as to whether the identity of the green car was ascertainable with due diligence of the plaintiff.
[55] In addition, I am not confident, as I must be on a summary judgment motion, that the plaintiff’s injuries were not caused by an unidentified vehicle and that the accident could not have occurred as described by the plaintiff.
Issue #3 – Is there a genuine issue requiring a trial with respect to whether the plaintiff will be entitled to OPCF 44R coverage?
[56] The plaintiff seeks to expand his entitlement to coverage beyond the statutory limit prescribed by s.265 of the Insurance Act and has made a claim on his OPCF 44R coverage.
[57] In the OPCF 44 an “inadequately insured motorist” is defined in s.1.5(b) as the driver or owner of an unidentified automobile as defined in s.5 of the O.A.P. 1.
[58] The OPCF 44 provides that:
(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.
[59] There is no question that the plaintiff sustained physical injuries. As highlighted above, there is a factual dispute as to whether such injuries were sustained as a result of being thrown from the motorcycle or from picking up the motorcycle. As the defendant points out, in the ambulance call report it is noted that the plaintiff did not suffer any injuries until he attempted to pick up his motorcycle. Also, as discussed above there is a genuine issue requiring a trial in relation to the question whether the accident involved an unidentified automobile.
[60] At this point in time, there does not appear to be any independent witness evidence to corroborate the plaintiff’s evidence. There is however physical evidence of the plaintiff’s injuries.
[61] As Dunphy J. commented in Lambert at para. 68, physical evidence of a plaintiffs injuries would be “other material evidence” as required under s.1.5(C) of OPCF 44.
- Were it necessary to determine this issue, I would agree with the plaintiff that other material evidence could include the physical evidence of her injuries being consistent with an accident having occurred at that time: Assapardi v. John Doe, 2014 ONSC 4685. The medical evidence before me establishes that her symptoms manifested themselves later that same day and developed with increasing severity thereafter. They symptoms were consistent with the sort of whiplash-type collision alleged. Mr. Khan supplies some “independent witness evidence” even if his testimony also denies that any collision occurred at all. His evidence is consistent with something having happened and the only thing he claims to have considered was a rear-end collision. That is some corroboration by an independent witness.
[62] I am unable to conclude that there is no physical evidence to be assessed and scrutinized in relation to the issue of whether the plaintiff has satisfied the requirements of the OPCF 44R and find that this issue requires a trial.
Conclusion
[63] For the above reasons, the motion is dismissed. As agreed at the hearing of the motion, the successful party is entitled to costs.
[64] While the parties had proposed a quantum for such costs, I decline to award that amount to the plaintiff considering (i) the limited materials filed by the plaintiff - a short responding affidavit a brief factum and two authorities, which were also part of the defendant’s brief of authorities; (ii) the submissions on the motion; (iii) the plaintiff’s cost outline; and (iv) that I am satisfied that partial indemnity costs are appropriate and R.20.06 is not applicable.
[65] Considering all of the relevant factors, I fix the costs payable by the defendant to the plaintiff of $7500.00 all inclusive.
Justice L.C. Leitch
Released: December 9, 2016