Ontario Superior Court Upholds Unidentified Motorist Claim Despite Late Notice

• The Ontario Superior Court of Justice ruled in favour of Morgan Norma Barkey's unidentified motorist claim against Aviva Insurance Company of Canada.
• The court applied a subjective test to determine whether Barkey had met her obligations under the Insurance Act and OAP 1.
• Barkey was found not to have deliberately ignored the other driver, but rather was medically compromised at the time of the accident.
• Physical evidence presented by Barkey's parents was accepted as sufficient corroboration under ss. 1.5(b)(C) and 1.5(b)(D) of the OPCF 44R.

The court found that together, this evidence was sufficient corroboration under ss. 1.5(b)(C) and 1.5(b)(D) of the OPCF 44R.

Morgan Norma Barkey's life was turned upside down when she was involved in a rear-end collision at a Starbucks drive-through in Ottawa. The accident occurred on March 1, 2021, and it had far-reaching consequences for both Barkey and her insurer, Aviva Insurance Company of Canada. While the physical damage to Barkey's vehicle was significant, it was the legal aftermath that would prove most challenging. In September 2024, the Ontario Superior Court of Justice delivered a ruling that would have a lasting impact on unidentified motorist claims in the province.

At the heart of the case was the question of whether Barkey had met her obligations under s. 265(2) of the Insurance Act and s. 1.2.3 of the Ontario Automobile Policy (OAP 1). Aviva argued that she had failed to exercise reasonable due diligence in identifying the other driver, who remained unknown despite efforts by Barkey's parents to gather evidence. However, the court applied a subjective test, as established in Leggett v. British Columbia (Insurance Corp. of), 1992 CanLII 1263 (BC CA). This approach considers what an individual, in their particular circumstances, could have done, rather than imposing a universal standard.

In upholding Barkey's claim, the court found that she had not deliberately chosen to ignore the other driver. Rather, her medical condition at the time of the accident meant that she was unaware of the need to take action. The court also accepted physical evidence presented by Barkey's parents, including spider crack marks on the rear bumper, as sufficient corroboration under ss. 1.5(b)(C) and 1.5(b)(D) of the OPCF 44R. This decision may signal a shift in the way insurers approach unidentified motorist claims, with potential implications for both claimants and lawyers.

This decision may impact insurers' ability to dismiss unidentified motorist claims, and lawyers should be aware that the court's subjective test for due diligence may lead to more favorable outcomes for claimants.

Source: Original reporting via Canadian Lawyer