Francis v State Farm Mutual Automobile Insurance, CV-13-5492-00

This is a motion for summary judgment in the context of the OAP-1’s unidentified motorist provisions.

Heard January 11, 2017 | Full Decision [OTLA Document Bank]

The Plaintiff alleged she was cut off by an unidentified motor vehicle. Her vehicle never made contact with the unidentified motor vehicle.  In response to being cut off, the Plaintiff took evasive action and crashed into a pole.  The Defendant brought a motion for summary judgment.  It argued the Plaintiff had “failed to establish that an unidentified motor vehicle caused or contributed to her accident”.

Prior to the motion, the Plaintiff agreed to limit its claim to the unidentified motorist coverage damages limit of $200,000.  The Court confirmed that the Plaintiff was therefore not required to provide corroborative evidence regarding the existence of an unidentified motor vehicle.

Despite this finding, the Plaintiff was still required to prove, on the balance of probabilities, that an unidentified motor vehicle caused or contributed to the accident.  The Court wrote:

The presence of corroboration is not required where, as here, the Plaintiff has now limited her claim to the limits of uninsured motorist coverage under the standard owners’ policy form OAP-1.  This coverage issues was discussed by Parayeski J. in the case of Chmielewski v Pishchak and TD General Insurance, 2014 ONSC 133.  I adopt the reasoning in Chmielewski in paragraph 11 and find that the Plaintiff is not required to lead corroborative evidence on the motion.

Without corroborative evidence, however, the Plaintiffs’ own evidence must establish on the balance of probabilities that an unidentified vehicles caused or contributed to the accident…

Despite the Plaintiff’s own evidence being very consistent, the Defendant argued that the Plaintiff was entirely at fault.  The Defendant argued the Plaintiff had not provided sufficient evidence to prove that the unidentified motor vehicle “caused a situation or urgency or emergency to arise.”

After considering both arguments, the Court concluded that there was a genuine issue for trial with respect to whether an unidentified motor vehicle caused or contributed to the crash.  Specifically, there was a genuine issues with respect to whether the unidentified motor vehicle was 1% responsible for the crash.

Furthermore, the Court declined to exercise its rule 20 fact finding powers in determining (1) whether the Defendant was 1% responsible; and, (2) whether the Plaintiff was reacting to “an emergency situation”.  Credibility was central to both the determination of fault, and the Plaintiff’s proportion of responsibility.  Of particular importance was the existence of a jury notice.  The Court confirmed that only in exceptional cases should rule 20 fact finding powers be used to override the fact finding function of the Jury.  The Court wrote:

Neither party agreed, and I do not find, that this is an “exceptional case” in which the fact-finding function of the jury should be bypasses [see Mitusev v General Motors Corp., 2014 ONSC 2342, at paragraph 91.]

Read the full decision on the OTLA Document Bank
Jordan Kofman
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.