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 CanLIICounsel for the Plaintiff: Mitchell Barber
Counsel for the Defendant Economical: Jason Rabin
Counsel for the Defendant Motor Vehicle Accident Claims Fund: John Friendly