Barkey v. Doe, 2026 ONSC 4390

CITATION: Barkey v. Doe, 2026 ONSC 4390

COURT FILE NO.: CV-21-86702

DATE: 2026/07/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Morgan Norma Barkey

Plaintiff

– and –

John Doe and Aviva Insurance Company of Canada

Defendants

Michael Switzer, for the Plaintiff

Vanessa Tanner and Ben Coles, for the Defendant, Aviva Insurance Company of Canada

HEARD: April 16-22, 2026

REASONS FOR DECISION

R. Smith J.

1The parties agreed to have a special case trial, pursuant to Rule 22 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to decide whether Morgan Barkey’s claim against her own insurer should be dismissed because she failed to ascertain the identity of the driver or the owner of the vehicle that struck her vehicle at a Starbucks drive-through. Aviva also submits that Ms. Barkey failed to report the accident to the police within 24 hours, failed to report the accident to her insurer within 30 days and that there is no other evidence that corroborates the involvement of an unidentified motor vehicle in the accident.

Issues

2The issues to be decided are as follows:

A. Did the plaintiff fail to ascertain, through reasonable due diligence, the identity of the driver or the owner of the vehicle that struck the rear of her vehicle in the Starbucks drive-through?

B. Did the plaintiff’s failure to report the accident to the police within 24 hours and her failure to provide written notice to her insurer within 30 days, cause irreparable prejudice to Aviva? If there is no irreparable prejudice, should the plaintiff be granted relief from forfeiture? and,

C. Did the plaintiff fail to provide material or other evidence to corroborate the involvement of an unidentified motor vehicle in the accident?

Issue A: Did the plaintiff fail to ascertain, through reasonable due diligence, the identity of the driver or the owner of the vehicle that struck the rear of her vehicle in the Starbucks drive-through?

3Section 265(2) of the Insurance Act, R.S.O. 1990, c.I-8 (“Insurance Act”) defines an “unidentified automobile” as “an automobile with respect to which the identity of either the owner or the driver cannot be ascertained”.

4Section 1.2.3 of the Ontario Automobile Policy (“O.A.P 1”) defines an “unidentified automobile” as one whose owner or driver cannot be determined.

5In Lamb v. Co-operators General Insurance Co., 2020 ONSC 4955 at para. 10, the court held that in order to succeed on her claim for unidentified coverage, the plaintiff must establish, on a balance of probabilities, that she could not have ascertained through reasonable due diligence the identity of the driver or owner of the vehicle that injured her.

6In Leggett v. British Columbia (Insurance Corp. of), 1992 CanLII 1263 (BC CA)at paras. 10-12 the British Columbia Court of Appeal interpreted the term “not ascertainable” in the context of identifying an unknown driver in a motor vehicle accident to mean “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them”.

7In Leggett, the Court of Appeal for British Columbia held that this was a subjective test that required the claimant to know that their vehicle was involved in an accident and be in a position to discover and record the appropriate information.

Facts

8Ms. Barkey’s claim arises out of a motor vehicle collision that occurred on March 1, 2021 in the City of Ottawa. On that day, Ms. Barkey was stopped at a Starbucks drive-through when another vehicle struck the rear of her vehicle. Ms. Barkey was 18 years of age at the time of the accident and had no previous experience with car accidents.

9Ms. Barkey had turned her head to the left to receive her beverage when her 14-year-old vehicle was hit from behind. She testified that her head came back suddenly and hit the headrest, but her head did not hit the steering wheel.

10Ms. Barkey testified that after the accident she was confused, dizzy, anxious, and in shock. Dr. Reesor, a neuropsychologist, opined that she probably suffered a concussion caused by the accident because she was particularly vulnerable as a result of having four previous concussions from sporting activities. Dr. Reesor believed that Ms. Barkey had struck her head on the steering wheel, but she testified that her head did not strike the steering wheel of her vehicle, only the headrest. He testified that Ms. Barkey would have had a dysfunctional emotional reaction as a result of the accident.

11Ms. Barkey exited her vehicle and spoke with the driver of the other vehicle. The other driver was a large man, who was not wearing a mask, even though this was during the COVID-19 pandemic. They looked at their vehicles and Ms. Barkey did not notice any obvious damage.

12The other driver asked her if she was “ok” and she said she was because she was unaware that she had suffered an injury at that time. Ms. Barkey did not believe she had to call the police because she did not observe any damage to the vehicles.

13The barista at Starbucks also asked her if she was “ok” because she was crying when she received her beverage.

14Ms. Barkey drove her car forward, parked, and called her mother. She testified she was hyperventilating and crying. She took deep breaths while talking with her mother in order to calm down. During this time, the driver of the other vehicle drove away.

15Ms. Barkey did not obtain the name of the driver or determine the owner of the vehicle that struck her vehicle because she was not aware that she had suffered an injury and she had not noticed any damage to the vehicles. She then drove her vehicle back to her home in Arnprior, Ontario.

16On March 2, 2021, the day after the accident, she attended an appointment with her chiropractor and reported symptoms of neck pain and headaches. She then booked the next available appointment with her family doctor on April 23, 2021.

17On March 2, 2021, Ms. Barkey telephoned her insurance broker and reported that she had been in an accident the previous day. Ms. Barkey did not speak to a lawyer until April 27, 2021 when she met with Mr. Switzer.

18Ms. Barkey testified that she never met with her insurance broker in person when she first obtained insurance coverage on her vehicle because she arranged for insurance coverage with her insurance broker by phone. As a result, the details of her insurance policy or the OPCF 44R endorsement were never explained to her. In addition, she was never provided with a copy of her OAP 1 Insurance Policy or the OPCF 44R endorsement by Aviva or her insurance broker. No evidence was introduced that Aviva ever sent a copy of her insurance policy or the OPCF 44R endorsement to her.

19On April 26, 2021, Ms. Barkey filed a claim for accident benefits from her insurer, Aviva. This claim was made 56 days after the accident occurred on March 1, 2021.

20Ms. Barkey was unable to return to attend high school for the balance of her final year of high school namely from March 1 until the end of June 2021. She was unable to write her final exams due to her medical condition following the accident. Her high school agreed to use her final marks from the first part of the term, which were very good.

21I find that Ms. Barkey was a very truthful and credible witness and I accept her evidence.

22Ms. Barkey’s mother also testified and confirmed her daughter’s evidence that she was very confused and anxious when she called her from the Starbucks parking lot immediately after the accident.

23Both Ms. Barkey’s mother and father testified that they observed spider cracking on the rear of Ms. Barkey’s vehicle caused by the accident.

Analysis

24In Lamb, the court held that the plaintiff must establish on a balance of probabilities that she could not have ascertained through reasonable due diligence, the identity of the driver or owner of the vehicle. In this case, Dr. Reesor testified that Ms. Barkey was vulnerable because she had suffered four previous concussions before this accident. He also testified that Ms. Barkey probably suffered a minor concussion as a result of the accident and that she would have had a dysfunctional emotional reaction to the accident. The symptoms that Ms. Barkey complained of the following day are consistent with her having suffered another concussion caused by this accident.

25Ms. Barkey’s inability to attend high school for the last 3 months of the school term is also consistent with her having suffered a concussion from the accident. The chiropractor she saw on the day after the accident on March 2, 2021 confirmed from the symptoms she was exhibiting, that Ms. Barkey had suffered a further concussion from the accident the previous day.

26Had Ms. Barkey not been injured in the accident, she could have asked the other driver for his name and address, she could have taken a photograph of his driver’s licence, or she could have taken a photograph of the licence plates of the other vehicle with her cell phone.

27At para. 10 of the Leggett decision, the Court of Appeal for British Columbia stated as follows:

“the corporation’s exposure under this section is limited to claims brought by those who could not have ascertained the identity of the parties responsible. It does not, in my view, extend to claims by those who have chosen not to do so.”

28In this case, Ms. Barkey did not deliberately choose not to identify the identity of the driver of the other vehicle, but rather she was unaware that she had suffered a concussion immediately after the accident.

29Ms. Barkey did not determine the identity of the other driver because she was unaware that she had suffered a serious injury until after the other driver had left the Starbucks cafe. Her lack of knowledge that she had suffered a serious injury, probably a concussion, based on Dr. Reesor’s opinion evidence and the symptoms she complained of the following day, was the reason she failed to identify the other driver or the owner of the other vehicle. As result, I find that Ms. Barkey could not have ascertained through reasonable diligence that she was injured and required to determine the identity of the other driver or the identity of the owner of the other vehicle at the time of the accident.

30The barista at Starbucks would not have witnessed the accident because the private investigator, Mr. Papineau, testified that he was unable to identify the vehicle behind the vehicle being served at the window by the barista. He also testified that the camera footage at the Starbucks cafe and at the adjoining gas station did not record the licence plate or record any information that could identify the driver of the vehicle, behind the one being served at the coffee shop.

Disposition of Issue A.

31For the above reasons, I find that Ms. Barkey has established on a balance of probabilities that she could not, with reasonable due diligence, ascertain the identity of the driver or the owner of the vehicle that struck the rear of her vehicle at the Starbucks drive-through. This is because immediately following the accident, she was unaware that she had suffered an injury and on a balance of probabilities was suffering from the effects of a concussion. In these circumstances, Ms. Barkey has shown on a balance of probabilities that she was unable to ascertain the identity of the driver or the owner of the vehicle due to the injuries she suffered in the accident and her lack of knowledge of those injuries at the time the accident occurred.

Issue B: Did the plaintiff’s failure to report the accident to the police within 24 hours or her failure to provide notice to her insurer within 30 days cause irreparable prejudice to Aviva? If there is no irreparable prejudice, should the plaintiff be granted relief from forfeiture?

32Section 3 of the Insurance Act, O. Reg. 676 and s. 5.3.5. of the O.A.P. 1 states that if an insured sustains bodily injury caused by an unidentified automobile, the insured is to report the accident to police 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.

33The statement to be provided by the insured must state whether the accident was caused by a person whose identity cannot be ascertained, whether he or she was injured, and whether any property was damaged.

34Pursuant to s. 6 of O. Reg. 676, the insured is also required to give written notice to their insurer of their claim for injuries caused in an accident with an unidentified automobile within 30 days of the accident or as soon as practicable and such proof as is reasonably possible of the accident and resulting loss within 90 days.

35In the summary judgment reasons at Barkey v. Aviva, 2024 ONSC 2249 at para. 13, the court stated that the requirement to exercise reasonable diligence to ascertain a driver’s identity “entails an objective and subjective consideration of the claimant’s ability in the relevant circumstances to discover and record the appropriate identifying information”.

36In Barkey, the decision referred to above, the court stated that the level of diligence ultimately means that “a person suffering head trauma or otherwise significantly injured in a collision would not normally be expected to take immediate steps to identify the other driver at the time of a collision”.

37In Takhar v. Insurance Corporation of British Columbia, 2024 BCCA 275 at paras. 22 and 26, where the insured was required to make “all reasonable efforts” to ascertain the identity of an unidentified owner or driver, the Court of Appeal for British Columbia stated that whether reasonable efforts were made was a question of fact that “must be determined in all the circumstances, having regard to the position and condition of the plaintiff.”

38I find that the failure to give notice to the police within 24 hours or written notice to Aviva within 30 days of the accident and to only give notice to Aviva 56 days after the accident, did not cause any irreparable prejudice to Aviva because a) she gave telephone notice to her insurance broker the day following the accident and Aviva should have been notified by the insurance broker and could have conducted whatever investigations they deemed necessary at that time, b) based on the evidence of the private investigator, Mr. Papineau, it would have been impossible to determine the identity of the driver or the owner of the vehicle that struck the rear of Ms. Barkey’s vehicle, as the cameras did not record the area behind Ms. Barkey’s vehicle, and c) the Starbucks barista also could not have provided information about the identity of the driver or the owner of the vehicle that struck Ms. Barkey’s vehicle, because as Mr. Papineau testified, she could not have seen the vehicle behind Mrs. Barkey from the service window.

39In short, after the driver of the other vehicle left the Starbucks cafe, Aviva would not have been able to determine his identity or the identity of the owner of the vehicle by carrying out an investigation. As a result, there is no irreparable prejudice to Aviva caused by failing to give notice to the police within 24 hours or by giving notice of the accident to the insurer beyond the 30 days.

Disposition of whether there was irreparable prejudice to Aviva in Issue B.

40For the above reasons, I find that there was no irreparable prejudice to Aviva because of the failure to give notice to the police within 24 hours or from the delay in giving notice to Aviva beyond the 30-day period (56 days).

Relief from Forfeiture

41Section 129 of the Insurance Act provides that where there has been imperfect compliance by an insured with a statutory condition 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. The remedy of relief against forfeiture is equitable in nature and purely discretionary.

42In this case, Ms. Barkey gave notice to her insurance broker by phone the day after the accident occurred advising him of the accident. Ms. Stanford, Aviva’s adjuster, was unaware that Ms. Barkey had given notice to her insurance broker but confirmed that this was an acceptable means of giving notice to Aviva.

43March 2, 2021, the day following the accident, Ms. Barkey was seen by the Renfrew Chiropractic and Rehabilitation Centre, which noted that she was suffering from injuries due to the collision which occurred on the previous day and she was assessed as suffering from an acute concussion.

44On April 26, 2021, Ms. Barkey gave notice of a claim for accident benefits to Aviva. This was 56 days after the accident occurred. This exceeded the requirement of giving notice within 30 days by 26 days.

Reasonableness

45Ms. Barkey’s conduct was reasonable in the circumstances due to her lack of knowledge that she had suffered an injury at the time of the accident and because she likely suffered a concussion due to her vulnerability from having suffered four previous concussions. Also, she gave notice to her insurance broker the next day and ultimately gave written notice to Aviva 56 days following the accident.

Gravity of the breach

46Ms. Barkey gave notice by phone to her insurance broker the day after the accident occurred which was within the 30-day period. In any event when the written notice was given 56 days after the accident, Aviva did not take any steps to investigate for a further 8 months.

47Mr. Papineau testified that video camera evidence would not have assisted in identifying the driver or owner of the vehicle that struck Ms. Barkey’s vehicle and was not available in any event. He also testified that the barista’s view from the Starbucks drive-through window did not permit her to identify the vehicle behind the one being served. Mr. Papineau testified that in his opinion, there was no ability to identify the driver or the owner of the vehicle that struck Ms. Barkey’s vehicle, after he left the scene. I accept Mr. Papineau’s uncontradicted evidence. As a result, the delay in giving notice did not cause any prejudice to Aviva and the notice breach did not have serious consequences for Aviva.

48In Canadian Equipment Sales & Service Co Ltd v Continental Insurance Co., (1976), 1975 CanLII 670 (ON CA), 9 O.R. (2d) 7, the court held that the onus is on the insurer to demonstrate actual or potential prejudice. Aviva has not done so.

49At para. 92 of Canadian Equipment Sales, the Court of Appeal for Ontario stated as follows:

“It has become clear that recourse to [relief from forfeiture], and its counterpart in other jurisdictions with relation to other kinds of insurance, has always depended on the particular facts of the case, and on whether there was clearly some actual proven prejudice to the insurer, or potential prejudice which could not be quantified after the event.”

50I find that Aviva has not met its onus to show any actual or potential prejudice from the delay in giving notice of the accident involving an unidentified driver or vehicle. Ms. Stanford, Aviva’s insurance adjuster, agreed in cross-examination that there was no consequence to Aviva as a result of Ms. Barkey’s late notice.

Disparity between the value of the property forfeited and the value of the damage caused by the insured’s breach

51In Kozel v. The Personal Insurance Company, 2014 ONCA 130 at para. 71, the Court of Appeal for Ontario granted relief from forfeiture where it described the disparity as “enormous” where there was no prejudice to the insurer and the insured stood to lose $1,000,000 in coverage due to a breach of a statutory condition. In this case, the amount Ms. Barkey would forfeit will depend on the assessment of damages she suffered but there will be a significant disparity as compared to the lack of any prejudice to Aviva.

52Any prejudice that there may be to Aviva from the delay in giving notice within the time limit is minimal and there is a significant disparity with the amount of the claim that Ms. Barkey may potentially recover. The loss of Ms. Barkey’s ability to make a claim for damages would be disproportionate to any prejudice caused to Aviva by the breach in not giving notice of the accident to the police within 24 hours or to Aviva within 30 days.

Disposition of relief from forfeiture in Issue B.

53For the above reasons, I order that relief from forfeiture is granted for Ms. Barkey’s failure to comply with the notice requirements of the statutory conditions of the insurance policy.

Issue C: Did the plaintiff provide material other evidence to corroborate the involvement of an unidentified motor vehicle?

54Section 1.5(b)(C) of the OPCF 44R Family Protection Coverage Endorsement (“OPCF 44R”) requires that evidence of an unidentified driver must be corroborated by “other material evidence”. The parents of the plaintiff are not considered to be independent witnesses.

55Section 1.5(b)(D) of the OPCF 44R coverage requires that the “other material evidence” be “independent witness evidence” or physical evidence indicating the involvement of an unidentified vehicle.

56Ms. Barkey testified that she observed spider crack marks on the rear bumper of her vehicle which were not present before the accident. This is some physical evidence that her vehicle was struck by another unidentified driver or vehicle.

57In addition, the plaintiff visited her chiropractor on the day following the accident and was diagnosed with a concussion caused by the accident, Ms. Barkey called her broker the day after the accident and reported the accident with an unidentified driver, and Ms. Barkey suffered medical injuries, namely a concussion and as a result, was unable to attend the rest of her final year in high school from March to the end of June, due to injuries she suffered in the accident.

Disposition of Issue C.

58For the above reasons, I find that the plaintiff has provided material other evidence that corroborates that an unidentified vehicle struck the rear of her vehicle on March 1, 2021 at a Starbucks drive-through.

Estoppel

59Based on all of the circumstances, I am not satisfied that the plaintiff has proven that Aviva should be estopped from denying this claim.

Final Disposition

60I find that Ms. Barkey has established on a balance of probabilities that she could not have ascertained, with reasonable due diligence, the identity of the driver or owner of the other vehicle that struck the rear of her vehicle. I also find that other material evidence corroborates the involvement of an identified driver in the accident. I further grant relief from forfeiture in respect to any failure by Ms. Barkey to comply with statutory notice requirements.

Costs

61The plaintiff shall have 15 days to make submissions on costs, Aviva shall have 15 days to respond and the plaintiff shall have 10 days to reply.

The Honourable Justice Robert Smith

Released: July 29, 2026

CITATION: Barkey v. Doe, 2026 ONSC 4227