Unidentified Vehicle: The Corroborating Evidence Rule

Is a passenger in an insured's motor vehicle an "independent witness" who can corroborate the insured's evidence concerning the involvement of an unidentified motorist for the purposes of the OPCF 44R Family Protection Endorsement? Is the passenger an "independent witness" if the passenger has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome?

D.A. Wilson J. recently said yes to these questions in Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.).

Sections 1.5(c) and 1.5(d)(i) of the OPCF 44R, known as the Family Protection Endorsement, read as follows:

(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 ... or a dependent relative ...; or (ii) physical evidence indicating the involvement of an unidentified automobile..


Wilson J. found that: "It is clear that the intention of this section is to limit the ability of individuals to make claims against their OPCF 44R policies for claims involving unidentified vehicles unless there is independent evidence to corroborate the involvement of a vehicle whose driver or owner cannot be ascertained. Further, the individual who corroborates the evidence of the claimant cannot be the spouse or a dependant of the claimant." (para. 10)

In the instance before Wilson J., the independent witness was a passenger in the plaintiff's vehicle and a girlfriend at the time of the accident but not at the time of the motion. Wilson J. concluded that this witness did not fit into the narrow class of persons excluded, namely a spouse or relative, and therefore she was an independent witness who could provide corroborating evidence.

It would seem that allowing a passenger, who has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome, to be the witness required under the Endorsement, defeats the intent of having "independent" corroborating evidence. On the other hand, it seems a correct finding on a plain and narrowly construed interpretation of the Endorsement's wording.

Are SABS assessors "experts"?

Those of you defending accident benefits actions may wish to review this case before your next discovery.

Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)

The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).

The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).

The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).

Discovery by Videoconference

Midland Resources Holdings Ltd. v. Sharif (2010), 99 O.R. (3d) 550 (S.C.J.).

In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.

Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).

It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.

Audiotaping Independent Medical Examinations

In Adams v. Cook (2010), 100 O.R. (3d) 1 (C.A.), the defendant sought an independent medical examination of the plaintiff by a specialist in physical medicine and rehabilitation. The plaintiff would consent only if the examination was audio recorded. In the initial motion, plaintiff's counsel swore an affidavit alleging there was a systemic bias by those conducting IMEs. He made no allegations against the specific specialist selected by the defendant. The motions judge refused to order the IME without audiotape and the Divisional Court dismissed the appeal. The defendant then appealed to the Court of Appeal.

The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.

The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.

Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal's decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.