The Court recently considered the meaning of "other
material evidence" under the Family Protection Coverage -
OPCF 44R, ("OPCF 44R"). In Azzopardi v. John Doe ( 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
The applicable provisions of the OPCF 44R for the
summary judgment motion are sections 1.5(C) and 1.5(D) which
(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;
"other material evidence" for the purposes of this
(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
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
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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