Released January 6, 2016 | Full decision
Ms. Lambert claimed to have been injured as a result of a low speed rear-end collision she suffered on the 401 while on her way to the airport in the cab driven by Mr. Khan. At the time, Mr. Khan doubted that a collision had actually occurred, although he noted that something had shaken the cab. He got out of the cab to inspect the rear end of his vehicle, and subsequently discussed the incident with the driver of the white van behind him. Traffic was at a standstill for 10 minutes after the incident. Having confirmed that there was no damage to either vehicle Mr. Khan took down the licence plate number of the van, and asked Ms. Lambert if she needed medical attention. She said she was in a hurry and that she had not suffered any injuries.
Ms. Lambert was ill by the time she checked in at the airport, and did not board the plane. Ultimately she was diagnosed with a mild concussion. At no time did she follow up with Mr. Khan or the cab company regarding the incident, nor did she file a police report. Almost 2 years later she commenced a lawsuit against Mr. Khan, the owners of the cab, Lombard and her own insurer, TD.
She sued Mr. Khan on the basis of potential fault against him for the incident, and against his unidentified driver coverage. Her lawyer requested the licence number of the van, but by this time Mr. Khan had misplaced it. Significantly, this was only requested after the lawsuit was commenced. She sued TD under her OPCF 44R coverage to cover her damages above $200,000.
Lombard offered to settle for $200,000 and costs, and a Pierringer agreement was drafted. Thereafter, both Lombard and Ms. Lambert brought parallel motions against TD. Ms. Lambert sought to establish TD’s liability over $200,000 under the OPCF 44R. Lombard sought to dismiss TD’s cross claim against it on the grounds that there was no liability against Mr. Khan.
The key question on the motions was whether the driver of the van could be characterized as “unidentified” after having been identified at the scene.
Justice Dunphy held that there was no ground for characterizing the driver of the van as unidentified. This was not a hit and run incident, or similar situation, in which there was no means of verifying the driver’s identity. Mr. Khan recorded the licence plate. Traffic was at a standstill for 10 minutes, during which time he or Ms. Lambert could have verified the identity of the driver. She could have pursued the matter and did not until much later. The loss of the identification at some later date did not shift the risk onto TD.
Justice Dunphy did not comment on the possibility that losing the licence plate number created liability against the Lombard defendants, and indicated that the parties were at liberty to resume settlement discussions in light of his decision.
As a result, the claim was dismissed as against TD with costs, and TD’s cross-claim was rendered moot. Justice Dunphy noted that he was disturbed by the prayer for punitive damages brought by the Plaintiff, and that punitive damages, “should not be lightly pleaded as a routine pressure tactic”. He issued the following warning: “In circumstances where allegations of behaviour said to warrant the imposition of punitive damages are advanced without justification, the court may consider whether this factor ought to be taken into account when awarding costs”.
