COURT FILE NO.: CV-20-648494

DATE: 2022-07-08

ONTARIO SUPERIOR COURT OF JUSTICE

RE: FOWZIA ADITI, Plaintiff

-and-

JOHN DOE #1, JOHN DOE #2 and INTACT INSURANCE COMPANY, Defendants

BEFORE: FL Myers J

COUNSEL: Deanna S. Gilbert, for the Plaintiff Kimberly Newton and Emily Wilson, for the Defendant Intact Insurance Company

HEARD: June 29, 2022

ENDORSEMENT

The Motion and Outcome

[1] In Ontario, the standard motor vehicle insurance policy provides the insured people $200,000 in coverage for injuries or damage caused by an unidentified vehicle. For an additional premium, insured people can buy optional extra coverage in the OPCF 44R Family Protection Endorsement to increase to $1 million the compensation available for injury or damage caused by an unidentified vehicle.

[2] When a victim in a motor vehicle accident claims under her own insurance policy for coverage for loss caused by an unidentified vehicle, the OPCF 44R Family Protection Endorsement requires that the involvement of an unidentified vehicle be supported by corroborating physical evidence or independent witness evidence.

[3] The issue on this motion is whether inadmissible hearsay evidence can be sufficient to establish coverage. In my view, on the facts and circumstances of this case, there is ample corroboration to satisfy the corroboration requirement of the OPCF 44R Family Protection Endorsement.

Procedural Issue – Partial Summary Judgment

[4] Both sides agree that all of the evidence that could be at trial is before me. Both sides acknowledge that under her regular policy wording the plaintiff already has $200,000 in coverage for injuries caused by an unidentified motorist. They want me to decide whether the plaintiff can access the $1 million limit in the OPCF 44R Family Protection Endorsement.

[5] As the vast bulk of civil cases settle before trial, counsel need to know the applicable policy limits to move forward toward resolution.

[6] If I find that the evidence at this stage establishes corroboration, it remains possible for the trial judge to reject the plaintiff’s evidence about the accident. So I cannot rule out all possible risk of overlap. But as discussed below, the issues are different. A finding at trial that the plaintiff’s evidence is insufficient to establish liability of the John Doe defendant driver is not inconsistent with a finding now that the evidence is sufficiently corroborative to engage the OPCF 44R Family Protection Endorsement In normal circumstances, the risk of overlapping evidence would preclude me from granting partial summary judgment. See: Mason v. Perras Mongenais, 2018 ONCA 978, at paras. 40 and 41. Here however, counsel understand the risk and submit that it is more important to the parties to know their applicable insurance limits than to protect against a possibility of an outcome at a hypothetical trial that will occur in only a very small minority of cases. They understand the risks and ask for “boomerang” summary judgment as well. That is, they want to know the outcome one way or the other with finality.

[7] Both sides have put their best foot forward. There is no risk of a witness’s voice being obscured by affidavits drafted by counsel. Resolving this motion will most likely result in an earlier and cheaper resolution of the action than sending the matter to trial without deciding the issue. Thanks to the effort of counsel, I am in a position to fairly make findings of fact and apply the law to the facts as found. Doing so is efficient and more affordable for the parties – especially the injured plaintiff. Deciding the motion will likely see the plaintiff justly compensated sooner than declining to resolve the motion. See: Malik v. Attia, 2020 ONCA 787 at para. 62.

[8] Accordingly, this is a good case in which to consider the issues on a motion and to grant judgment with finality one way or the other. The order implementing this decision shall refer to Rule 20.04 (4) and to the final and binding nature of the determination. See: Skunk v. Ketash, 2016 ONCA 841 at para. 58.

The Facts

[9] The defendant Intact Insurance Company insured the plaintiff Ms. Aditi. The policy included both the $200,000 basic coverage for damage caused by an uninsured or unidentified vehicle and Ms. Aditi paid for optional additional coverage in an OPCF 44R Family Protection Endorsement.

[10] The relevant parts of the OPCF 44R Family Protection Endorsement state:

PROVIDED 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. [Emphasis added.]

[11] On October 28, 2019, Ms. Aditi was driving northbound on Highway 404 near Sheppard Avenue in Toronto. Para. 9 of Intact’s factum describes the Plaintiff’s evidence about the accident as follows:

9 She was attempting to change lanes because her lane was turning into an HOV lane. As she was halfway through her lane change, she saw a black pick-up truck moving into the same lane she was merging into. She felt it was travelling much faster than her and coming from her right. She braked and swerved back into her original lane and collided with the centre guardrail. The black pick-up did not stop.

[12] A car that was driving in front of Ms. Aditi’s car stopped at the scene. The driver got out of his car to help. Ms. Aditi called 911. On the recording of the 911 call, the other driver can be heard speaking in the background.

[13] PC Derek Bowman of the OPP attended at the scene. PC Bowman testifies that he spoke to the driver of the vehicle who stopped to help. The driver confirmed the plaintiff’s version of the events. PC Bowman did not record that driver’s identity or contact details because the driver could not help him identify the black pick-up truck.

[14] PC Bowman’s field notes say:

-vehicle hit left concrete guardrail – fem driver cut-off by black pick up – unknown info – Independent witness confirms but can’t supply info for vehicle-

[15] Under cross-examination, PC Bowman testified that he had an independent recollection of speaking to the witness at the scene of the accident. He said that the witness told him that he saw a black pick-up truck cut off Ms. Aditi or used words to that effect.

The Witnesses’ Statement is Hearsay

[16] It is immediately apparent that the statement made by the witness to PC Bowman is hearsay. It is a statement made out of court that the plaintiff adduces for the truth of its content. That is hearsay plain and simple. Unless it is made admissible by an exception to the hearsay rule, the witness’s statement to PC Bowman cannot be used to prove the truth of its content. That means that at the trial, the witness’s statement to PC Bowman confirming that the unidentified black pick-up truck cut off the plaintiff cannot be used as evidence to prove that the unidentified black pick-up truck cut off the plaintiff.

[17] PC Bowman does not attest to his belief in the truth of the statement so as to try to make it admissible as “information and belief” evidence under Rules 20.02 (1) and 39.01 (4). Nor could he realistically have done so. He knows nothing of the source, reliability, or truthfulness of the statement. He was clear under cross-examination that he did not test the witness’s statement at all. For the same reason therefore, if PC Bowman did try to adduce the evidence as his own information and belief, his evidence would have had no weight in any event.

[18] The principled exception to the hearsay rule cannot apply to the witness’s statement either. The statement has insufficient reliability. The witness’s car was traveling in front of Ms. Aditi’s car. His ability to meaningfully observe a pick-up truck coming from behind and to the side of Ms. Aditi’s car is certainly something worth considering.

[19] There is nothing about the circumstances to give an assurance of reliability or truthfulness to the independent witnesses’ statement in my view. I do not accept that a witness giving a quick and anonymous statement to a policeman at an accident scene on the side of a highway is a solemn event or one that has any circumstantial assurance of truthfulness.

[20] But PC Bowman’s evidence that he spoke to the witness is not hearsay. PC Bowman has sworn to the conversation in this proceeding and he has been cross-examined on it. He can testify to what he was told if the fact that he was told something is a relevant fact in itself regardless of the truth of what he was told. The fact that the witness told him that a black pick-up was involved is not hearsay if it is used just for the purpose of understanding that the witness told the police officer that thing. The non-hearsay purpose cannot make the statement true or evidence of truth. But might the fact that someone said that thing to the police officer amount to corroboration? That is, is the fact that a witness said he saw a black pick-up truck evidence of corroboration even if the statement itself cannot be used to prove that a black pick-up truck did actually cut off the plaintiff’s car?

[21] If the making of the statement alone is not enough to fulfil the corroboration requirement, then the question is sharply focused on whether inadmissible hearsay can be used for the corroboration requirement in the OPCF 44R Family Protection Endorsement?

The Interpretation of the OPCF 44R Family Endorsement

[22] In Abarca v. Vargas, 2015 ONCA 4. The Court of Appeal discussed the approach to the OPCF 44R Family Protection Endorsement as follows:

[36] In seeking to balance the respective interests of the parties in the circumstances, the court must advert to the interests at stake in the underlying action -- in this case, to insurance principles. In my view, the motion judge failed to give due consideration to this requirement. Automobile insurance is well understood to be a form of consumer protection. The Supreme Court of Canada has endorsed the observation of Professor Craig Brown that "[i]n one way or another, much of insurance law has as an objective the protection of customers" (Smith v. Cooperators General Insurance Co., [2002] 2 S.C.R. 129, [2002] S.C.J. No. 34, 2002 SCC 30, at para. 11).

[37] Automobile insurance policies are, consequently, more than mere commercial contracts. The entire regulatory structure of automobile insurance has become part of the social contract, and forms "part of an integral social safety net that attempts to [page 570] balance economic feasibility with sound risk management principles for not just drivers and partner insurers, but anyone injured by an automobile accident" (Erik Knutsen, "Auto Insurance as Social Contract" (2011), 48 Alta. L. Rev. 715, at 716-17, 739).

[38] The automobile insurance system has recognized that some drivers will inevitably be uninsured or underinsured, and that this risk too must be accommodated. Underinsured automobile coverage began in Ontario in 1981 in an effort to provide "financial relief for insureds and their families from the hardships and inequities of any shortfalls in insurance compensation" (Despotopoulos v. Jackson, [1991] O.J. No. 1472, [1992] I.L.R. Â1-2793 at 1645 (Gen. Div.), at para. 8, affd sub nom. Romas v. Prudential Insurance Co. of Canada, [1996] O.J. No. 4185 (C.A.)). This court further explained the purpose of this type of coverage in Beausoleil v. Canadian General Insurance Co. (1992), 1992 CanLII 8679 (ON CA), 8 O.R. (3d) 754, [1992] O.J. No. 954 (C.A.) [at para. 9]:

The responsible citizen insures himself for the amount he considers adequate and expects other motorists to do the same. He obtains the special endorsement (and pays the additional premium) to insure himself against the eventuality of an injury caused by an irresponsible motorist who has not so conducted himself.

[39] Unlike uninsured automobile coverage, which is a statutory entitlement, underinsured automobile coverage is created by contract between the insurer and the insured. The OPCF 44R endorsement provides a back-up source of liability coverage, and entitles the injured policyholder to claim against his or her own insurer for the compensatory damages he or she is "legally entitled to recover" from the inadequately insured, at-fault driver (Chomos v. Economical Mutual Insurance Co. (2002), 2002 CanLII 45021 (ON CA), 61 O.R. (3d) 28, [2002] O.J. No. 3164 (C.A.), at para. 22).

[40] By buying underinsured automobile coverage from Economical Mutual, the Leivas were behaving as responsible motorists seeking to protect themselves and others. The corollary of the insurance principles at issue, particularly the objective of consumer protection, is that the Leivas should only be deprived of this coverage for the very gravest of reasons.

[23] The issue at hand therefore is one of contractual interpretation. There is no dispute between the parties concerning the relevant principles of interpretation. They accept as well that coverage is interpreted broadly. Exclusion clauses are interpreted narrowly.

[24] It is important as well to recall that the issue is not liability for the accident. The plaintiff’s evidence is perfectly admissible as to what happened and why the defendant driver and the owner of the black pick-up truck ought to be liable for her injuries. This issue here is what is meant by the requirement for her evidence to be corroborated by “other material evidence” for the increased policy limit to be available to the plaintiff under the OPCF 44R Family Protection Endorsement

[25] The Endorsement defines “other material evidence” to consist of “independent witness evidence” or “physical evidence”.

[26] All of these phrases use the word “evidence”. Intact submits that the use of that word must implicitly refer to evidence that is admissible in court to prove the truth of it content. By definition, evidence that is not admissible cannot be used by a court to prove a fact.

[27] On the other hand, the Plaintiff points out that the Endorsement does not say “admissible evidence”. As set out above, it is common parlance to speak of “hearsay evidence” and other forms of inadmissible evidence using the word “evidence”.

[28] While the word “evidence” itself is not determinative, the context of the usage is. The issue is not proof of a fact in court by admissible evidence. The issue is whether there is corroboration of a plaintiff’s admissible evidence.

[29] In Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341 the Court of Appeal discusses the purpose of the corroboration requirement in the Endorsement:

[14] 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. [Emphasis added.]

[30] In the next several paragraphs the court goes on to discuss the role of corroborative evidence at common law. I see little doubt but that the Court of Appeal was discussing admissible evidence of corroboration where required to aid the trier of fact. The Court discusses the twin requirements of materiality and independence that undergird the admissibility of evidence in court proceedings at common law and under the Evidence Act, RSO 1990, c E.23.

[31] But the court also noted that the OPCF 44R Family Protection Endorsement itself provides for the key attributes of materiality and independence. To interpret the OPCF 44R Family Protection Endorsement one does not need to draw from the common law of evidence admissibility or other statutory requirements for corroboration. The Court of Appeal was not asked whether on a true construction of the terms of the OPCF R44 Family Protection Endorsement only admissible evidence could provide the insurer the requisite comfort as to the validity of the plaintiff’s claim.

[32] I agree with Parayeski J. in Chmielewski and Pishchak, ONSC 1133 that the corroboration requirement cannot be satisfied by the plaintiff testifying about what unidentified witnesses told her about the accident. Neither can it be established by the physical damage to the plaintiff’s car which does not point to any involvement of another vehicle. He wrote powerfully, that to interpret the Endorsement to allow corroboration by such evidence “makes a mockery of the notion of corroborative evidence in this context”.

[33] I also agree with Firestone J (as he then was) who held that medical opinion about the mechanics of the particular injury suffered by the plaintiff is sufficiently external to the plaintiff’s own “say so” to provide the required comfort to the insurer as to the validity of the claim. He wrote:

[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.

[34] We know from admissible evidence that (a) the plaintiff says she was cut off by a black pick-up truck; and (b) someone calling himself a witness stopped, waited for the police to arrive, and told him something. We also know that he told the police officer that he saw a black pick-up truck cut off the plaintiff. But this is only admissible if used for a non-hearsay purpose.

[35] There is no doubt that the evidence of PC Bowman that “the witness told me…” would not be admissible to convict an accused person of an offence involving the subject matter. It is not admissible to make a finding of negligence against anyone either. But is it enough to give an insurer reasonable comfort that the plaintiff is not making the accident up?

[36] In my view, bearing in mind the consumer protection purpose to insurance regulation and the very specific contractual requirement for corroboration “indicating” (not “proving”) involvement of an unidentified vehicle, the corroboration requirement can be satisfied by hearsay. The fact that someone stopped and waited and spoke to the officer does not meet the reliability requirement of the principled exception to the hearsay rule. But it meets the independence and materiality requirements of the contract. The idea is not to unfairly exclude or restrict coverage. Rather, the goal is to ensure that the insurer has a fair assurance, external to the plaintiff herself, that an unidentified driver was involved. The fact that a police officer conducted a form of investigation and that the hearsay comes from his mouth (or notes) rather than from the Plaintiff, is independent witness evidence that is sufficient, in my view, for a reasonable insurer to conclude that the Plaintiff is not making up her story.

[37] In my view, this is no different in kind than any other corroborative fact that may or may not be true. Tire tracks and skid marks are frequently used to corroborate the presence and involvement of a second vehicle. But, at trial the judge may reject the evidence on any number of bases. Similarly, a dent in the car’s rear bumper can be used as corroboration that it was rear-ended although no second vehicle can be identified. At trial, the judge may find that there is insufficient evidence to establish on a balance of probabilities that the dent was caused by the unidentified vehicle as claimed. The judge may not believe the plaintiff, for example.

[38] That is, the test for corroboration occurs before the truth of the evidence is assessed in the liability phase of the trial. The existence of corroboration for example, does not tie the insurer’s hands to limit its ability to contest the mechanism of the accident and injury propounded in considering whether the plaintiff’s injuries meet the threshold or for any other purpose.

[39] In my view the evidence of PC Bowman that the witness confirmed the Plaintiff’s story to him may be enough without considering the truth of its content. We know someone was there. The 911 call recorded him and the police officer spoke to him. The simple fact that a police officer was told by a third party that a black pick-up was involved is corroboration whether the statement was true or not. But if that is not enough and the truth of the statement is required to find corroboration, and even if the witness’s testimony has reliability issues, I do not see it leaving a reasonable person fairly concluding that the Plaintiff made up a story about a black pick-up truck being involved. Whether it truly cut her off or its driver did anything to render himself or herself liable is an issue for trial against the unidentified driver. The hearsay evidence of a black truck being there is a sufficient indication of the involvement of an unidentified vehicle to meet the purpose of the corroboration requirement in the parties’ contract.

[40] Intact also questions the independence of the witness’s evidence. Intact does not deny that he is a neutral person. But, before he spoke to PC Bowman, the witness spoke to Ms. Aditi and he heard Ms. Aditi tell her version of the accident to the 911 operator. Intact questions whether the witness’s account was his own or if he might be helping Ms. Aditi. In my view, this does not undermine the independence of the evidence. It once again may go to reliability and credibility. But there is no suggestion that the witness or his evidence was at all procured by or dependant upon anything said or done by Ms. Aditi.

[41] I note for completeness that the Plaintiff relies upon her own re-telling of her story and the physical damage to her car as also being corroborative. I disagree. Like Parayeski J., I do not see how the Plaintiff relating even third party evidence can be corroborative of her own evidence. Moreover, there is nothing in the physical damage to the car that indicates in any way that another automobile was or might realistically have been involved.

[42] I find that there is no genuine issue requiring a trial on the question of the applicability of the OPCF 44R Family Protection Endorsement to the Plaintiff’s claims. I make a final declaration of right that the OPCF 44R Family Protection Endorsement is engaged and applicable in this case.

FL Myers J

Date: July 8, 2022