Most automobile insurance polices in Ontario are purchased with an OPCF44R endorsement, commonly referred to as the “Family Protection Endorsement.” It provides a lot of additional protection, and in this instance, the plaintiff was seeking additional insurance coverage for being injured at the hands of a vehicle that could not be properly identified (nor its driver).
Because this type of coverage is subject to a lot of potential abuse, the contract requires the plaintiff to establish through corroborating evidence that there indeed was some kind of interaction with an unidentified vehicle/driver: otherwise it would be very easy for every driver who lost control of their vehicles to simply assert that it was because of some unknown third party vehicle that interfered.
The “corroboration” issue came to a head in this recent decision because the only “evidence” that the plaintiff could produce, beyond her own words that she was cut off by a black pick-up truck, was a statement made by the police to the effect that they spoke with a person at the scene who said they witnessed the plaintiff being cut off by a black pick-up truck. The main problem?: the police never took down the “witnesses” name or contact particulars because the witness had no identifying information for the suspect black pickup truck.
The challenge for the court was whether this “hearsay” evidence was sufficient to satisfy the corroboration requirement of the endorsement.
The court concluded that it was sufficient. The court held: “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.”
It is important to note that the court was not making a ruling on whether there was indeed a black pickup truck involved: that remained the task for the trial judge. The purpose of the court’s ruling was to assist the parties determine if the OPCF44R coverage was triggered, as this would have a significant impact for the parties. Indeed, because the court concluded there was sufficient corroboration to trigger the OPCF44R coverage, the parties now are aware that they are fighting over $1,000,000.00 in coverage, rather than $200,000.00. It is apt to assist the parties tremendously in further negotiations now that the coverage amounts have crystalized.
Aditi v. Doe, 2022 ONSC 4049
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4049/2022onsc4049.html