When a motor vehicle accident involving an unidentified vehicle occurs in Ontario, $200,000 is the standard coverage under the province’s auto insurance regime. That coverage is intended for both damage and injuries and can be increased to $1 million.

However, claims regarding unidentified vehicles, and any motor vehicle accident for that matter, must always be supported by evidence. But what qualifies as evidence in cases involving unidentified vehicles? And does that threshold differ for an insurance claim versus convicting an accused person?

Aditi v. Doe, 2022 ONSC 4049 addresses these two questions. In this case, Justice Myers considered hearsay evidence sufficient enough to satisfy the insurance claim.

The Case

Ms. Adidti made an insurance claim for injuries and damages in a motor vehicle accident that involved an unidentified vehicle. According to Ms. Adidti, she attempted to change lanes when the lane she was travelling in turned into an HOV lane.

As she attempted to change lanes, she saw that a black pickup truck, travelling much faster than her, was moving into the same lane. In order to avoid a collision, she braked and swerved back into the original lane, and this resulted in her colliding with the guardrail.

The driver of the black pickup truck did not stop following Ms. Adidti’s collision. However, another car stopped, and the driver stayed to help. Ms. Adidti called 911 and, on that recording, the driver who was helping can be heard in the background of the call.

The police arrived on the scene and the third-party driver spoke to the OPP officer as well. Although the helping driver could not help identifying the other vehicle, they were able to confirm the version of events as told by Ms. Adidti.

The Issue

Ms. Adidti’s insurance policy included the standard coverage mentioned above (that is, $200,000 in coverage when the accident involves an unidentified vehicle). Her policy also had additional coverage of OPCF 44R Family Protection Endorsement. Parts C and D of this endorsement states:

• 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 evidence of the involvement of such automobile must be corroborated by other material evidence; and
• “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 issue of the case was whether inadmissible hearsay evidence was enough evidence to establish coverage for Ms. Adidti.

The Result

It was concluded that the witness’s statement to the OPP officer can be considered hearsay. The officer didn’t test the source, reliability, or truth of the statement while on the scene and receiving the statement. The judge also determined that the principled exception to the rules about hearsay did not apply. As such, the witness statement could not be used as evidence to prove that Ms. Adidti was cut off by an unidentified vehicle.

However, to satisfy the corroboration requirements in Parts C and D of the OPCF 44R endorsement as outlined about, Justice Myer determined that there was, indeed, enough corroboration. In the opinion of the Justice, the evidence that the constable spoke with the witness and that the witness told him that the black pickup truck was involved in the crash is not hearsay, as long as it’s used to understand that the witness told him that thing.

It’s important to understand the difference between this evidence being used to convict an accused and this evidence being used to give an insurance company reasonable comfort that the claimant is not making up what happened. Indeed, Justice Myer agreed that an officer stating that “a witness told me…” is not enough to meet the requirements for admissible evidence when that evidence is being used to convict an accused of an offence or to find someone negligent. But, it is enough to meet the contractual requirement for corroboration “indicating” (and not “proving”) that an unidentified vehicle was involved.

Involved in an Accident with an Unidentified Vehicle?

As this case highlights, accidents involving unidentified vehicles can be difficult to navigate. This is especially true when hearsay evidence is involved. While Justice Myers was of the opinion that this type of hearsay evidence may not be admissible at trial in order to convict an accused, it is indeed enough to be rewarded the insurance claim.

Have you been involved in an accident with an unidentified vehicle? With such a large claim amount at stake, it’s imperative that you seek the legal counsel you need to win your case. Contact Sharma Law to find out how we can help.