Paolucci v. John Doe, 2015 ONSC 7675

Released December 11, 2015Full Decision [CanLII]

On July 31, 2012, the plaintiff was involved in a single vehicle collision. The plaintiff alleged that she had seen lights which she assumed were another vehicle. She swerved to avoid the collision and crashed into a utility pole. The driver of the other vehicle was never identified.

Given the allegation that an unidentified vehicle was involved, the plaintiff commenced an action against Economical Mutual Insurance Company for coverage under her OAP and OPCF 44R. Economical brought a motion for summary judgment with respect to both aspects of the claim.

The plaintiff was unable to elicit any independent or corroborating evidence of an unidentified vehicle. There was no physical evidence either in the nature of the injuries sustained or left on the road (ie. skid marks) that would suggest the presence of another vehicle.

The plaintiff admitted during her cross-examination on her affidavit that she had long standing mental health issues, and was having relationship issues at the time of the collision. She was adamant, however, that she did not intend to harm herself. Economical submitted that the plaintiff’s evidence was not credible and should be disregarded.

Justice Quinlan was satisfied that a summary judgment motion was an appropriate avenue to determine the validity of the claim. Given the lack of physical or corroborating evidence, she determined that there was no genuine issue requiring a trial.

Justice Quinlan noted that there is no need for there to be corroborative evidence in order for the claim to succeed. The plaintiff must only be convincing, and persuade the Court on a balance of probabilities of the involvement of an unidentified vehicle.

Ultimately, Justice Quinlan found that it was difficult to assess the extent to what, if any, the plaintiff’s pre-existing mental health played a role in the collision. A proper consideration would possibly require expert evidence and full argument as to the admissibility and/or relevance of the plaintiff’s state of mind at time of the collision. Accordingly, she found that a summary judgment motion or the type of mini-trial contemplated under Rule 20.04(2.2) were not appropriate avenues to determine the validity of the plaintiff’s OAP claim.

Read the full decision on CanLII

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