The Ontario Superior Court of Justice has ruled that inadmissible hearsay evidence is enough to meet the corroborating physical evidence or independent witness evidence requirement under an OPCF 44R Family Protection Endorsement.
In Ontario, when injuries or damages are caused by an unidentified vehicle, the standard motor vehicle insurance policy provides insurer persons with $200,000 in coverage. Insured persons have the option to purchase extra coverage, known as the OPCF 44R Family Protection Endorsement, which increases the coverage amount available to $1,000,000.
The case of Aditi v Roe involved a dispute between a driver and her insurer. The driver, Ms. Aditi, had purchased standard motor vehicle insurance coverage and the optional extra OPCF 44R from Intact. Ms. Aditi was driving on the highway when she attempted to change lanes. During her lane change, another vehicle was also merging into the same lane. In order to avoid a collision, Ms. Aditi swerved back into her original lane and collided with the centre median, while the other vehicle continued driving and did not stop. Police attended the scene and spoke to a witness who confirmed Ms. Aditi’s version of the events, which was recorded in the officer’s field notes.
Ms. Aditi commenced a lawsuit against the unidentified driver and owner and her own insurance company for coverage under the OPCF 44R Endorsement. Ms. Aditi’s insurer, Intact, brought a partial summary judgment motion taking the position that the corroboration requirement of the OPCF 44R Endorsement had not been fulfilled. The relevant parts of the Endorsement state:
PROVIDED THAT…
(C) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant’s own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(D) “other material evidence” for the purposes of this section means
(i) independent witness evidence, other than evidence of a spouse as defined in section 1.10 of this change form or a dependent relative as defined in section 1.2 of this change form; or
(ii) physical evidence indicating the involvement of an unidentified automobile.
The police officer who attended the scene testified under cross-examination that he spoke to an unnamed witness at the scene who confirmed Ms. Aditi’s version of events. While this evidence would not be admissible to convict someone, or make a finding of negligence, under the wording of the insurance contract, the Court found it to be enough to give the insurer reasonable comfort that Ms. Aditi was not making the accident up. The Court wrote at paragraph 36 of the decision:
In my view, bearing in mind the consumer protection purpose to insurance regulation and the very specific contractual requirement for corroboration “indicating” (not “proving”) involvement of an unidentified vehicle, the corroboration requirement can be satisfied by hearsay. The fact that someone stopped and waited and spoke to the officer does not meet the reliability requirement of the principled exception to the hearsay rule. But it meets the independence and materiality requirements of the contract. The idea is not to unfairly exclude or restrict coverage. Rather, the goal is to ensure that the insurer has a fair assurance, external to the plaintiff herself, that an unidentified driver was involved. The fact that a police officer conducted a form of investigation and that the hearsay comes from his mouth (or notes) rather than from the Plaintiff, is independent witness evidence that is sufficient, in my view, for a reasonable insurer to conclude that the Plaintiff is not making up her story.
Aditi fairly balances the interests of insurers and insureds. Insurers must protect against false claims, while insureds want assurance that they will be covered under their policy if another involved driver cannot be identified. As a result of this decision, consumers do not have a high evidential bar to meet if they suffer damages because of an unknown driver. Aditi is a great step forward for consumer protection.
