Shapiro v. Doe, 2016 ONSC 2956


Plaintiff’s Claim Dismissed due to Insufficient Evidence on Summary Judgment Motion

Released June 23, 2016 | Full Decision [CanLII]

In this summary judgment motion, Justice Pollack dismissed the Plaintiff’s claim as he had not met his burden of proving that he was injured by an “unidentified motorist”.

In this case, the Plaintiff claimed that he was hit by a car while crossing the street. The driver exited the vehicle and asked the Plaintiff if he was okay. The Plaintiff said he was and proceeded to walk home. He did not ask the driver for his name or for any other information.

The Plaintiff commenced a claim against Economical, pursuant to an OPCF-44R Family Protection Endorsement and against the Motor Vehicle Accident Claims Fund (“the Fund”), pursuant to section 13 of the Motor Vehicle Accident Claims Act (“the MVAC Act”).

Both Economical and the Fund brought this summary judgment motion, arguing that the Plaintiff was not injured by an “unidentified motorist” as defined by section 265 of the Insurance Act or section 16 of the MVAC Act.

The Plaintiff argued that he had failed to obtain the driver’s information as he had been in a state of shock at the time of the collision. He relied upon affidavit evidence of a law clerk employed by his lawyer’s firm and on excerpts from the transcripts of his examination for discovery. He presented no direct medical evidence or expert evidence in support of his argument.

Justice Pollack articulated the test to be applied on a motion for summary judgment as the test set out by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7. Justice Pollack held that although the Defendants bore the burden of proof on the motion, the Plaintiff must also prove through evidence that there was a genuine issue requiring a trial. Justice Pollack held that the Plaintiff must “lead trump or risk losing” and could not rely on the possibility that other evidence would be adduced at trial to support his claim.

Justice Pollack concluded that the evidence on the motion was sufficient to establish that there was no genuine issue requiring a trial. The Plaintiff failed in meeting his burden in proving that he was injured by an “unidentified motorist” as required for his action against Economical and the Fund to succeed. Justice Pollack found that had “the Plaintiff proceeded to trial with the evidence he…relied upon on in this motion, he could not succeed.”

Read the full decision on CanLII

Counsel for the Plaintiff: Mitchell Barber

Counsel for the Defendant Economical: Jason Rabin

Counsel for the Defendant Motor Vehicle Accident Claims Fund: John Friendly

Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.