This case reinforces the stringent threshold for dismissing a claim via a summary judgment motion, emphasizing that the Court rigorously evaluates whether there is a genuine issue warranting a trial based on the strength of the evidence presented in the motion materials.
Particularly in cases involving unidentified drivers, this decision highlights the critical role of medical evidence in successfully contesting a motion for summary judgment. Such evidence must demonstrate how the client’s cognitive, physical or psychological impairments may have impeded their ability to comply with their insurance policy provisions immediately following the accident.
Lastly, the decision serves as a general reminder for counsel to ensure that affidavit evidence from medical experts or other witnesses strictly adheres to admissibility requirements, especially as outlined in Rule 39.01.
Facts
On March 1, 2021, the plaintiff was involved in a rear-end collision while her vehicle was stationary in a drive-thru line. The vehicle behind her collided with hers, and the plaintiff hit her head on the steering wheel. Both parties got out of the car, and they had a brief conversation. Despite this interaction, plaintiff did not obtain any identifying information from the other driver or their vehicle, aside from noting the type and colour of the car. The plaintiff also did not take any photographs or videos on the scene. After the accident, she spoke with a barista at the drive-thru window who witnessed the accident; however, the plaintiff did not obtain her contact information. A month later, the plaintiff returned to the same drive-thru and encountered the same barista but again did not secure any contact information.
The plaintiff later filed a claim for accident benefits under her policy with Aviva, which provided coverage for collisions involving unidentified drivers. The claim was filed on or around April 26, 2021, and a Statement of Claim was issued on June 9, 2021, albeit with an erroneous collision date, which was later corrected.
Aviva denied the claim and brought a summary judgment motion to dismiss the action. It asserted that the plaintiff (a) could have ascertained the identity of the driver of the vehicle that hit her, and by failing to do so, she has not complied with the unidentified motorist provisions of her auto policy, and (b) that she did not report the collision to the police within 24 hours or provide proper notice to the insurer.
Issues and the Court’s Decision
In this summary judgment motion, the Court grappled with two issues, with a focus on the former.
- Whether the plaintiff failed to exercise reasonable due diligence to ascertain the identity of the driver or owner of the vehicle that collided with hers, as required under the unidentified motorist provision of her insurance policy.
- Whether the plaintiff’s failure to report the collision to the police within 24 hours or to provide proper notice to the insurer justifies Aviva’s denial of coverage.
The Court had to determine whether these failures create “no genuine issue requiring a trial.”
The Court denied Aviva’s motion for summary judgment.
On the first issue, it noted that the medical evidence indicated some confusion following the collision, necessitating a full trial to assess whether the plaintiff exercised reasonable due diligence in attempting to identify the other car’s driver. On the second issue, the Court found that Aviva failed to demonstrate it had suffered any prejudice due to the plaintiff’s imperfect compliance with its notice provisions. The Court deemed Aviva’s claim – that proper notice would have enabled them to identify the driver who hit the plaintiff – as speculative. Consequently, the Court determined that a genuine issue remained for trial regarding whether relief from forfeiture should be granted.
Law and Analysis
- Whether the Plaintiff Exercised Reasonable Due Diligence Following the Collision was a Triable Issue
The Court noted that under Section 265(2) of the Insurance Act, an “unidentified automobile” is defined as “an automobile with respect to which the identity of either the owner or driver cannot be ascertained.” Similarly, Section 5.1.3 of the Ontario Automobile Policy defines an “unidentified automobile” as “one whose owner or driver cannot be determined.”
The Court determined that for the plaintiff to succeed in her claim under the unidentified motorist provision of her insurance policy, she must demonstrate on a balance of probabilities that she could not, despite exercising reasonable diligence, ascertain the identity of the driver or owner of the vehicle that caused the injury (including identifying witnesses to the collision). This determination involves assessing whether the plaintiff took all reasonable steps under the particular circumstances to identify the other driver following the collision. The Court emphasized that the assessment of reasonable diligence is not purely objective but must consider the specific circumstances of the claimant, including any factors that could impair her ability to gather necessary information, such as physical or psychological trauma experienced during the collision. For instance, the Court pointed out that a claimant, who has sustained head trauma or significant injuries, would not be expected to immediately undertake measures to identify the other driver following a collision.
The Court, in the current case, evaluated whether the plaintiff’s claimed shock and head injury were sufficiently severe to justify her failure to collect information at the scene. It recognized the importance of the medical evidence, specifically the psychological and neuropsychological reports. These reports detailed observations crucial for understanding the plaintiff’s condition immediately after the collision. For instance, they described how the plaintiff’s head struck the steering wheel, causing an instant headache, before impacting the headrest. The reports also noted her emotional response when a drive-thru operator inquired about her well-being, leading her to cry from being overwhelmed. Furthermore, after collecting her order, the plaintiff remained visibly shaken and upset, experiencing a severe headache, dizziness and minor vision problems.
Importantly, the Court accepted the reports appended to the affidavit of a law clerk as evidence, despite their non-compliance with Rule 31.09 (which non-compliance included (a) the law clerk did not depose that he believed the medical report to be true, and (b) the medical report addressed contentious facts that could not be presented in a hearsay manner). Addressing the deficiencies, the Court noted that the medical professional who prepared the report would likely have been willing to swear an affidavit affirming the authenticity of his report and his medical opinion if asked to do so. Additionally, since Aviva did not intend to cross-examine the report’s author, the Court permitted the plaintiff’s counsel to reference the report as though it was properly before the Court.
The Court also assessed the plaintiff’s conduct following the collision by considering her testimony from discovery, as well as affidavit evidence from her parents, which further corroborated her shocked and upset state upon returning home shortly after the collision.
Collectively, the evidence pointed to some level of confusion and unclear thinking following the collision, which the Court deemed sufficient to suggest that it may not have been reasonable for the plaintiff to gather the information of the unidentified driver. Ultimately, the Court determined that whether the plaintiff had a reasonable excuse for not diligently obtaining the identification of the other driver or vehicle was deeply intertwined with her credibility and the extent of her head injuries, and that an important triable issue existed to fairly resolve those issues. Therefore, the insurer had not met its burden of proving there was no genuine issue requiring trial.
- As Relief Against Forfeiture was Available to the Plaintiff, the Plaintiff’s Failure to Provide Proper Notice was a Triable Issue.
With regards to the second issue, the Court highlighted that despite the plaintiff’s imperfect compliance with the provisions of her insurance policy, under Section 129 of the Insurance Act, relief against forfeiture may nonetheless be granted, provided the Court deems it inequitable to forfeit or avoid coverage on that basis.
The Court noted the test in Kozel v. Personal Insurance Co. for relief from forfeiture, holding here that based on the facts of the present case, whether such relief should be granted depends on the nature and extent of the head injury suffered or exacerbated by the accident (which is a triable issue).
Notably, the Court emphasized that the delay in filing the claim may not have prejudiced Aviva’s investigation of the accident, highlighting that the decision to grant relief against forfeiture is discretionary and grounded in principles of equity. It concluded that Aviva’s argument—that the improper notice eliminated any genuine issue requiring trial—was speculative, as there was no evidence to suggest that reporting the accident within 24 hours would have led to the driver being identified, given the relatively minor nature of the accident. Accordingly, Aviva had not met its burden of proof that there was no genuine issue requiring trial in light of the plaintiff’s imperfect compliance with their policy provisions.
Conclusion
The Court dismissed Aviva’s motion for summary judgment.
