Court File and Parties

COURT FILE NO.: CV-14-512214 DATE: 20191008 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amir Mazinani, Plaintiff AND: John Doe and State Farm Mutual Automobile Insurance Company, Defendants

BEFORE: Madam Justice O'Brien

COUNSEL: J. Kotman, Counsel for the Plaintiff E. Bawks, Counsel for the Defendant State Farm Mutual Automobile Insurance Company

HEARD: September 11, 2019

Reasons for Decision

Overview

[1] The Defendant State Farm Mutual Automobile Insurance Company brings this motion for summary judgment. The action relates to a motor vehicle accident in which the Plaintiff suffered injury to his left leg and damage to his motorcycle. The Plaintiff claims that he collided with an unidentified vehicle after it ran a stop sign. Because the unidentified vehicle was never located, he brought this action against John Doe and his own insurer, State Farm. State Farm submits that the Plaintiff has not provided the necessary evidence to prove the existence of an unidentified vehicle. Without the required proof, State Farm has no liability to the Plaintiff. Therefore, the question on this motion is whether there is a genuine issue requiring a trial that an unidentified vehicle was involved in the accident.

[2] The accident occurred on May 17, 2013, when the Plaintiff Mr. Mazinani was riding his motorcycle with a friend, Mr. Cherniak. They rode eastbound on King-Vaughan Road, traveling from Bolton, Ontario to Richmond Hill, Ontario. Mr. Cherniak was riding behind Mr. Mazinani. They approached the intersection between King-Vaughan Road and Pine Valley Drive. At that intersection, vehicles travelling north and south are required to stop, whereas vehicles travelling east and west on King-Vaughan Road are not required to stop. The Plaintiff’s evidence is that, as he approached the intersection, he saw a black pickup truck (the unidentified vehicle) approaching from the south. He realized that the truck was not going to stop and he hit his brakes and began to slide. His evidence is that the front left side of his motorcycle hit the truck’s back-rear bumper and that he fell to the ground and suffered a laceration on his left leg.

[3] The Plaintiff claims coverage from State Farm on two bases: The first is under the OPCF 44R Family Protection Coverage Endorsement to a standard Ontario policy of automobile insurance (O.A.P. 1), which was issued to the Plaintiff by State Farm. The second is under the standard minimum limits set out in O.A.P. 1. The requirements under the OPCF 44R Endorsement and the minimum limits under O.A.P. 1 are different in that the OPCF 44R Endorsement requires the Plaintiff to adduce “other material evidence” corroborating the involvement of an unidentified motor vehicle causing or contributing to the accident. The minimum limits under the O.A.P. 1 do not require the Plaintiff to adduce “other material evidence.” The Plaintiff’s first position is that he is entitled to coverage under the OPCF 44R. In the alternative, he claims coverage under the O.A.P. 1 minimum limits, which limits his claim to $200,000.

[4] Therefore, the issues on this motion are:

(a) Is there a genuine issue requiring a trial with respect to whether the Plaintiff has met the requirement of the OPCF 44R Family Protection Coverage Endorsement?

(b) Is there a genuine issue requiring a trial with respect to whether the Plaintiff has met the requirements for the standard minimum limit under O.A.P. 1?

[5] I conclude that there is a genuine issue requiring a trial on both issues. I find that the Plaintiff has adduced other material evidence – specifically, physical evidence, indicating the involvement of an unidentified vehicle. There is a genuine issue for the jury as to whether this evidence corroborates the Plaintiff’s version of events. Further, there is a genuine issue requiring a trial as to the involvement of an unidentified vehicle on the Plaintiff’s own evidence. The Plaintiff’s credibility is in issue and I do not consider this to be an appropriate case to make a determination against the Plaintiff’s credibility on the record before me.

Provisions Addressing Claims related to Unidentified Vehicles

[6] I begin by setting out the relevant statutory and policy provisions.

[7] The Insurance Act, R.S.O. 1990, C. I.8 requires insurance policies to provide for the payment of sums that the insured person would be entitled to recover from the owner or driver of an unidentified vehicle. Section 265(1) provides:

s.256(1) Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that,

(a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile.

(b) any person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract resulting from an accident involving an automobile; and

(c) a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile,

Subject to the terms, conditions, provisions, exclusions and limits as are prescribed by the regulations.

[8] Where coverage is sought because the claimant would be entitled to recover damages from an unidentified vehicle, under s. 1.5 of OPCF 44R, other material evidence is needed to corroborate the involvement of the unidentified vehicle. Section 1.5 of OPCF 44R reads in relevant part:

1.5(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 eyewitness 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.

[9] However, O.A.P. 1, which limits the claimant’s claim to $200,000, does not include the same requirement for corroboration. Section 5.2.1 provides:

(a) 5.2.1. We will pay any amounts you or other insured persons have a legal right to recover as damages from the owner or driver of an uninsured or unidentified automobile for bodily injury resulting from an accident involving an automobile, up to the limits of this Section.

Test on Motion for Summary Judgment

[10] In this case, I conclude that there is a genuine issue requiring a trial with respect to the requirements both of s. 1.5 of OPCF 44R and of s. 5 of O.A.P. 1.

[11] According to Hyrniak v. Mauldin, 2014 SCC 7 (Hryniak), at para 66, the first step on a summary judgment motion is for the Court to determine if there is a genuine issue requiring a trial based only on the evidence presented by the parties. There will be no genuine issue requiring a trial when the Court is able to reach a fair and just determination on the merits. This will be the case when the process: (1) allows the Court to make necessary findings of fact, (2) allows the Court to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[12] If the Court finds that there is a genuine issue requiring a trial, it may then rely on the enhanced fact-finding powers set out in r. 20.04(2.1) and (2.2) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194. The decision to invoke these powers is discretionary and should only be used when it is in the interests of justice to do so. The Court must satisfy itself that adjudicating the dispute through the use of these powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality.

[13] Although findings of credibility can be made in some cases pursuant to the expanded powers of r. 20.04(2.1), it will not always be appropriate to make credibility findings on a written record. Courts should exercise caution and take care “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 (C.A.), at para 44; Lesenko v. Guerrette, 2017 ONCA 522, at para 19.

Genuine Issue Requiring a Trial pursuant to OPCF 44R

[14] I find that the Plaintiff has adduced “other material evidence,” as required by OPCF 44R. There is a genuine issue for trial as to whether this evidence corroborates the evidence of the Plaintiff.

[15] By way of background, the Plaintiff adduced his own affidavit evidence describing the involvement of the unidentified vehicle, the black truck. The evidence before me also included statements recorded on the date of the accident referencing an unidentified vehicle. The notes of the attending police officer indicate that the Plaintiff was travelling eastbound on King-Vaughan Road and approaching Pine Valley Drive. According to the notes, the Plaintiff was slowing down and going to turn onto Pine Valley Drive [though the Plaintiff says this is incorrect and he was not planning on turning] when a “truck pulled out & he hit his breaks [sic] & his rear wheel locked up & he whiped [sic] out.” The police officer also made notes from speaking to the Plaintiff’s friend Mr. Cherniak, as follows: “Friend was too far behind to see says looked like a veh pulled out of PVD [Pine Valley Drive] & startled him and he whiped [sic] out.”

[16] The ambulance call report from that day also references the involvement of another vehicle, as follows: “pt states he was travelling eastbound on King/Vaughan Rd. on his motorcycle when he was trying to avoid another car at an intersection.”

[17] However, State Farm submits that the Plaintiff has not adduced “other material evidence” of the involvement of the unidentified vehicle. It submits that there is no independent witness evidence and no physical evidence indicating the involvement of an unidentified vehicle. Thus, summary judgment should be granted.

[18] I do not agree. In this case, there is physical evidence that indicates the involvement of an unidentified vehicle. Specifically, the Plaintiff has adduced physical evidence that the front left side of his motorcycle hit the rear bumper of the unidentified vehicle. He has provided a photograph showing his motorcycle’s front-left side-view mirror dangling from the handlebars. His evidence is that this is the approximate location where his motorcycle impacted the unidentified motor vehicle.

[19] State Farm submits that this the damage to the side mirror does not prove the existence of an unidentified motor vehicle, as this damage could have occurred when the Plaintiff fell from his motorcycle.

[20] However, the coverage provided for in OPCF 44R is intended to alleviate the plight of motorists injured by drivers of uninsured and unidentified vehicles. This coverage is remedial and must be interpreted broadly and liberally: Lewis v. Economical Insurance Group, 2010 ONCA 528, at paras 11-12; Featherstone v. John Doe, 2013 ONSC 3175 (“Featherstone”), at para 18.

[21] As set out in Featherstone, the physical evidence relied on by the Plaintiff need not prove the existence of the other vehicle. It may also support other interpretations. In the Featherstone case, the Defendant argued that tire marks on the road did not prove that another vehicle was present on the scene; it was also consistent with the vehicle taking evasive action to avoid an animal or a child. Regional Senior Justice Heeney (as he then was) rejected the Defendant’s argument at para 22, as follows:

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.

[22] The Plaintiff in this case also relies on the laceration to his left leg as physical evidence corroborating the involvement of the unidentified vehicle. The emergency department record from the date of the accident describes the injury in relation to the unidentified vehicle as follows: “Lt leg injury. 27 year old riding motorcycle. Car pulled out in front. Went down with bike. 2” laceration left lower leg….” As set out on similar facts in Azzopardi v. John Doe, 2014 ONSC 4685, medical evidence of an injury consistent with the version of events involving the unidentified vehicle may constitute the physical evidence required by s. 1.5(d)(ii).

[23] There is sufficient physical evidence in this case to indicate the involvement of the black truck. I conclude that the Plaintiff has adduced “other material evidence” as required by s.1.5 of the OPCF 44R. There is a genuine issue for the jury to determine whether this evidence corroborates the Plaintiff’s evidence of an unidentified vehicle. As set out in the next section, there is also a genuine issue for trial as to the Plaintiff’s own evidence, as his credibility will need to be assessed at trial.

Genuine Issue Requiring a Trial pursuant to O.A.P. 1

[24] State Farm submits in the alternative that there is no genuine issue requiring a trial with respect to the involvement of an unidentified vehicle on the Plaintiff’s evidence, and even where corroborating evidence is not needed under s. 5.2.1 of O.A.P. 1. I do not agree.

[25] Although s. 5 of O.A.P. 1 does not appear to require corroborating evidence, the evidence must be convincing, and satisfy the Court, on a balance of probabilities, that an unidentified vehicle was involved: Paolucci v. John Doe, 2015 ONSC 7675 (“Paolucci”), at para 23; Alexander v. Doe et al., 2018 ONSC 5882, at para 6.

[26] In this case, I have outlined above the existence of potentially corroborating physical evidence. With respect to the evidence of the Plaintiff, State Farm submits that it cannot be accepted as the Plaintiff is not credible. State Farm points to the fact that neither the attending police officer’s notes, nor the notes of medical personnel from the day of the accident, reference a collision with an unidentified vehicle. The first reference to a collision with an unidentified vehicle appeared in the Plaintiff’s application for accident benefits dated June 14, 2013, almost a month after the accident.

[27] I agree that the Plaintiff’s credibility is in issue, but I do not consider it to be in the interests of justice to use my expanded fact-finding powers in the circumstances of this case to make a finding of credibility against him. It is not at all clear to me that the Plaintiff’s evidence should be dismissed. Although his initial statements to police and medical personnel are not documented as referencing a collision, I consider it important that they do consistently reference the involvement of another vehicle in causing or contributing to the accident. Further, the Plaintiff may have a good explanation at trial for not having focused in his comments on hitting the rear bumper of the other vehicle. He also could provide evidence at trial that he did reference hitting the other truck, but that this was not documented.

[28] In addition to what State Farm submits is the inconsistency in the Plaintiff’s initial statements, State Farm points to other inconsistencies in the Plaintiff’s evidence. These include, for example, the fact that in the Plaintiff’s affidavit and responses on cross-examination indicated that he met Mr. Cherniak in Bolton, Ontario, whereas on his examination for discovery, he stated that he met Mr. Cherniak and then traveled to Bolton. State Farm also points to the fact that during his cross-examination, the Plaintiff could not provide an estimate of how far he was from the intersection when he first saw the unidentified vehicle. On his examination for discovery, he stated that he saw the vehicle from a distance of 200 to 300 metres.

[29] I do not consider these inconsistencies to be of obvious significance. I cannot conclude that the Plaintiff’s poor recollection of details earlier in the day, nor hesitation to estimate the distance to the intersection, necessarily render his evidence about the involvement of the black truck incredible or unreliable. In my view, in this case, it is not appropriate to evaluate credibility on the record before me.

[30] The Plaintiff also submits that the presence of a Jury Notice is a factor to consider in determining whether the interests of justice favour using the enhanced fact-finding powers. See Wallace v. Ralph-Edwards, 2019 ONSC 899, at para 51. I do not rely on this factor in this case, as it is clear to me that I am not in a position, in any event, to make the necessary factual findings against the Plaintiff on this record. However, the presence of the Jury Notice does suggest that this matter is not appropriate for the kind of “mini-trial” contemplated by Rule 20.04(2.2). See: Paolucci, at para 30. I also note that the Plaintiff suggests there may be expert evidence presented at trial.

Disposition

[31] Accordingly, I conclude there is a genuine issue requiring a trial. The motion for summary judgment is dismissed. I will remain seized of this matter, subject to scheduling availability.

Costs

[32] The parties provided costs outlines at the conclusion of the hearing, but indicated they would make efforts to reach agreement with respect to costs upon receipt of my decision. If they are not able to reach an agreement, they requested the opportunity to make submissions on costs in writing. Accordingly, if the parties are not able to arrive at an agreement on costs, the Plaintiff may provide me with submissions not exceeding three pages within 14 days of the date of this decision. State Farm will then have 7 days to provide responding submissions with the same limitation. Submissions may be sent to my judicial assistant, Anna Maria Tiberio at annamaria.tiberio@ontario.ca.

O’Brien, J. Date: October 8, 2019