Ontario Trial Lawyers Association Case Summaries – March 15, 2016
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Case summaries originally distributed in OTLA March 15, 2016 newsletter.
Ding et al v. John Doe et al, 2016 ONSC 1690 (CanLII)
The Plaintiff was injured after colliding with a guard rail causing heavy front end damage to his vehicle. In this summary judgment motion, the only evidence submitted was the affidavit of the investigating police officer, the Plaintiff’s statement to a medical provider the day of the accident, the Plaintiff’s statement to his insurer the day after the accident and the Plaintiff’s discovery evidence. Lederman J. concluded that the issues can be readily determined on the basis of the material filed.
Lederman J. articulated the two components to the unidentified coverage provisions: 1) $200,000 coverage under the OAP 1, which requires the Plaintiff to establish on a balance of probabilities that the accident was caused by an unidentified driver, and 2) an additional $800,000 coverage under the OPCF-44R, which is available if the evidence of the Plaintiff is corroborated by “other material evidence”.
The Plaintiff’s information was inconsistent on the circumstances of the accident. He reported to the officer that he was attempting to change lanes when a tractor-trailor appeared to enter his lane so he swerved to avoid it, spun out and struck the guard rail. He also reported that the tractor-trailor impacted the front end of his vehicle. The passenger in his vehicle reported the same version to the officer without mentioning the impact. The officer stated in her affidavit that she spoke to the driver of the tractor-trailor and was told that the Plaintiff was trying to enter his lane of travel which prompted him to honk his horn. As he continued forward, he observed the Plaintiff lose control of his vehicle. The officer inspected the tractor-trailor for damage and observed no evidence of contact; as a result, she determined that the tractor-trailor had no involvement in the accident and let him go without obtaining his personal information. The Plaintiff reported to his insurer that the truck impacted his vehicle on the front left side. At his examination for discovery, the Plaintiff said that he was rear-ended.
Lederman J. noted that the Plaintiff was not in a position to explain the different versions due to his many capacity deficits. The onus of proof was on the Plaintiff. The passenger witness was uncooperative with State Farm investigations and provided no evidence on the motion. On the totality of the evidence, Lederman J. found that it was just as reasonable to conclude that the Plaintiff was solely responsible for the accident given his evidence on discovery of fatigue, speed and weather conditions. Lederman J. found that the Plaintiff’s evidence was conflicting and not reliable, and as such, there was no probative evidence sufficient to satisfy the burden of showing that any fault can be found on part of the tractor-trailor. Summary judgment was granted dismissing the action.
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