CASE CENTRE · PERSONAL INJURY · UNIDENTIFIED DRIVER · OPCF 44R · HEARSAY CORROBORATION

Aditi v. Doe

2022 ONSC 4049 Ontario Superior Court of Justice July 2022

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In short: A Superior Court judge held that a driver could claim the higher limit of her family protection endorsement after a pick-up truck moved into her lane and left the scene, with her swerving into a guardrail. The only outside support was a police officer's account of what a stopped motorist said. The judge held that the endorsement asks for evidence that points toward an unidentified vehicle, not evidence that would be admissible at trial.

The Facts

In October 2019 Ms. Aditi was changing lanes on Highway 404 in Toronto when a black pick-up truck moved into the same lane from her right. She braked, swerved back and struck the centre guardrail, and the truck did not stop. A motorist ahead of her pulled over and described what happened to the attending OPP officer, but the officer did not record that motorist's contact details, and neither the motorist nor the truck was ever traced. Her policy with Intact provided $200,000 for unidentified-driver claims, and the OPCF 44R endorsement lifted the total available to $1,000,000. The insurer accepted the basic amount but resisted the rest. The endorsement releases the extra money only if independent witness evidence or physical evidence indicating an unidentified vehicle's involvement supports the insured's account. Intact said that meant admissible evidence, and the officer's retelling of a bystander's words was hearsay.

What the Court Decided

Justice Myers decided the point on a summary judgment motion in favour of the insured, and a declaration of coverage under the endorsement followed. The judge accepted that the bystander's statement, relayed by the officer, did not qualify under the principled exception to the hearsay rule because its reliability was not shown, so it could not be used at trial to prove the truck was there. That did not end the inquiry, because the question came from the contract, not the rules of evidence. The endorsement requires evidence that is independent of the insured and material, and that indicates involvement of an unidentified vehicle rather than proves it. An officer's report of what a motorist who stopped and waited said met that wording, and because it came through the police it was independent of the insured. The clause was seen as a way of giving the insurer some assurance from outside the insured's own account. The ruling does not decide whether the truck actually cut her off or who is at fault; those questions remain for trial.

Hit-and-run claims depend on proof that another vehicle was really involved, and the corroboration clause is where many of them stall. This decision treats the clause as a contract term with its own purpose rather than a miniature rules-of-evidence test. For a driver in a single-vehicle crash caused by a fleeing motorist, a police note of what a passing witness reported can carry the claim past the first hurdle, which is worth up to $800,000 more than the basic limit. It is a Superior Court ruling on one record, and a later court may weigh similar evidence differently.

Does This Affect You?

✓You were forced off the road or into a barrier by a vehicle that left without stopping.
✓A bystander spoke to police but nobody took their name, and your insurer says there is no corroboration.
✓Your insurer has accepted the basic $200,000 for an unidentified driver but disputes the higher family protection limit.

Key Takeaways

The corroboration clause asks whether independent evidence indicates an unidentified vehicle was involved; it does not ask for proof that would pass the hearsay rules.
A police officer's record of a bystander's account can supply the independent evidence, even if the bystander is never found.
Getting past the corroboration step does not decide fault; the claim still has to prove the unidentified driver was negligent.

Frequently Asked Questions

Does this mean any witness statement will be enough?

No. The ruling turned on the wording of that endorsement and on the facts: someone stopped, waited and spoke to the police, and the officer recorded it. The evidence still has to be independent of the insured and material to the claim.

If the corroboration test is met, will the insurer pay the full $1,000,000?

Not automatically. The decision opened the door to the higher limit under the endorsement. Whether the unidentified driver was at fault, and how much the injuries are worth, still have to be established.

Case summary written for Azimi Law's Case Centre, in the firm's own words, about 2022 ONSC 4049. The facts and outcome should be confirmed against the full text of the decision before publication. See the disclaimer above.