The Court recently considered the meaning of "other material evidence" under the Family Protection Coverage - OPCF 44R, ("OPCF 44R").  In Azzopardi v. John Doe ([2014] ONSC 4685), the Plaintiff was driving his motorcycle when he was allegedly cut off by an unidentified vehicle.  As a result, he had to brake and put his foot down on the pavement.  The contact resulted in significant orthopaedic injuries to his left foot.  The Plaintiff commenced a claim against his own insurer, The Personal, pursuant to the OPCF 44R.  The Insurer brought a motion for partial summary judgment on the basis that the Plaintiff failed to provide "other material evidence" of the involvement of an unidentified driver, as required by the OPCF-44R.

Following the accident, Mr. Azzopardi attended the Humber River Regional Hospital.  There was a consultation report prepared by Dr. Cayen which indicated that he was involved in an accident.  The report noted that Mr. Azzopardi was sideswiped by another vehicle and planted his foot on the ground.  This was presumably based on the self-report of the Plaintiff.  The report indicated that Mr. Azzopardi suffered an axial load on his left foot.

The applicable provisions of the OPCF 44R for the summary judgment motion are sections 1.5(C) and 1.5(D) which state:

(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 as defined in Section 1.11 and 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 indicated the involvement of an unidentified automobile.

In considering the issue, the Court noted that the purpose of the corroboration requirement was to give the Insurer an added level of evidentiary protection regarding the possible involvement of an unidentified automobile.  This meant that the allegations must be based on something other than the Plaintiff's self-report either by independent witness evidence or physical evidence.

The Court noted that the section was not limited only to physical evidence at the scene. The Court found that to limit this section would create an unfair restriction on coverage. Further, it would preclude potential recovery to those situations where there was no contact between the vehicles, no skid marks or other physical evidence. Justice Firestone held that what was required was physical evidence extrinsic of the self-report that supported and was consistent with the Plaintiff's story.

The Court found that the section should be interpreted broadly and liberally.  In the present case, it was necessary that there be some physical evidence (extrinsic of the Plaintiff's self-report) that was consistent with the Plaintiff's story that he was cut off by an unidentified driver and which required him to take evasive action by braking and making contact with the asphalt.

In reviewing at the consultation report of Dr. Cayen and the x-ray, the Court found that the mechanism and type of injury was consistent with the Plaintiff's version of the events. The evidence, if accepted, would constitute "physical evidence indicating the involvement of an unidentified automobile".

The Court held that there was a genuine issue requiring a trial in order to determine whether such evidence actually corroborated the Plaintiff's evidence regarding the involvement of an unidentified vehicle.  Accordingly, the motion for summary judgment was dismissed.

While the Court did not definitely decide the issue, this case provides guidance as to the meaning of "other material evidence". Traditionally this provision only applied to evidence from the scene or from witnesses. Insurers must be aware of the apparent trend by the Court to expand the meaning of the phase.

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