It's Hearsay but It's OK - Aditi v. Doe, 2022 ONSC 4049

July 20, 2022, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Aditi v. Doe, 2022 ONSC 4049 

DATE OF DECISION: July 8, 2022

HEARD BEFORE: FL Myers J

Procedural Issue - Partial Summary Judgment

Issues: Hearsay; corroboration; evidence; coverage; OPCF 44R Family Protection Endorsement

Ontario’s auto insurance regime provides for a standard $200,000 in coverage for damage and injuries caused by an unidentified vehicle. This limit may be increased by the individual to $1 million. Any claim by a victim in a motor vehicle accident must be supported by corroborating physical evidence or independent witness evidence.

In this case, the Justice considered whether inadmissible hearsay evidence can be sufficient to establish coverage. In this case, the judge noted both sides had put their best foot forward and that resolving this issue would result in an earlier and cheaper resolution of the action than sending the matter to trial without deciding the issue.

Results: 

In the opinion of Justice Myers there is ample corroboration to satisfy the corroboration requirements of the OPCF 44R endorsement.

Details:

Both parties agreed at trial there was enough evidence to receive the $200,000 standard coverage for injuries caused by an unidentified motorist.

Ms. Adidti was insured by Intact at the time of the injury. She was attempting to change lanes because her lane was turning into an HOV lane when she saw a black pick-up truck moving into the same lane she was merging into much quicker than she was. She braked and swerved back into her lane and collided with the guardrail. The other vehicle didn’t stop.

Another car stopped at the scene and the driver got out to help. On the 911 recording, the other driver can be heard speaking in the background. Opp also spoke with the other driver who was unable to help identify the other vehicle but did record the version of events which confirmed Ms. Aditi’s story.

Her policy included the standard $200,000 coverage in addition to the additional coverage of OPCF 44R Family Protection Endorsement.

This endorsement states:

(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 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 1.10 of this change form or a dependent relative as defined in section 1.2 of this change form; or

(ii) physical evidence indicating the involvement of an unidentified automobile. 

Hearsay

The statement made by the witness to the constable is hearsay and therefore cannot be used as evidence to prove the unidentified vehicle cut off Ms. Aditi. The constable did not test the source, reliability, or truth of the statement at all.

The judge determined that the principled exception to the hearsay rule also did not apply. However, the constable’s evidence that he spoke with the witness is not hearsay. The fact the witness told him the vehicle was involved in the crash is not hearsay if it is used to understand the witness told the police officer that thing.

Judge Myers went on to review the law and the wording of the OPCF 44R Family Protection Endorsement.

Conclusion:

Admissible evidence is that (a) the plaintiff says she was cut off by a black pick-up truck; and (b) someone calling himself a witness stopped, waited for the police to arrive, and told him something. We also know that he told the police officer that he saw a black pick-up truck cut off the plaintiff. But this is only admissible if used for a non-hearsay purpose.

We know from admissible evidence that (a) the plaintiff says she was cut off by a black pick-up truck; and (b) someone calling himself a witness stopped, waited for the police to arrive, and told him something. We also know that he told the police officer that he saw a black pick-up truck cut off the plaintiff. But this is only admissible if used for a non-hearsay purpose.

There is no doubt that the evidence of PC Bowman that “the witness told me…” would not be admissible to convict an accused person of an offence involving the subject matter. It is not admissible to make a finding of negligence against anyone either. But is it enough to give an insurer reasonable comfort that the plaintiff is not making the accident up?

In my view, bearing in mind the consumer protection purpose to insurance regulation and the very specific contractual requirement for corroboration “indicating” (not “proving”) involvement of an unidentified vehicle, the corroboration requirement can be satisfied by hearsay. 

This is no different than any other corroborative fact that may or may not be true. Tire tracks and skid marks are frequently used to corroborate the presence and involvement of a second vehicle. But, at trial, the judge may reject the evidence on any number of bases. Similarly, a dent in the car’s rear bumper can be used as corroboration that it was rear-ended although no second vehicle can be identified. At trial, the judge may find that there is insufficient evidence to establish on a balance of probabilities that the dent was caused by the unidentified vehicle as claimed. The judge may not believe the plaintiff, for example.

The test for corroboration occurs before the truth of the evidence is assessed in the liability phase of the trial. The existence of corroboration, for example, does not tie the insurer’s hands to limit its ability to contest the mechanism of the accident and injury propounded in considering whether the plaintiff’s injuries meet the threshold or for any other purpose.

The evidence of PC Bowman that the witness confirmed the Plaintiff’s story to him may be enough without considering the truth of its content. We know someone was there. The 911 call recorded him and the police officer spoke to him. The simple fact that a police officer was told by a third party that a black pick-up was involved is corroboration of whether the statement was true or not

Intact questions the independence of the witness’s evidence. Intact does not deny that he is a neutral person. But, before he spoke to PC Bowman, the witness spoke to Ms. Aditi and he heard Ms. Aditi tell her version of the accident to the 911 operator. Intact questions whether the witness’s account was his own or if he might be helping Ms. Aditi. Judge Myers determined that this does not undermine the independence of the evidence. It once again may go to reliability and credibility. But there is no suggestion that the witness or his evidence was at all procured by or dependant upon anything said or done by Ms. Aditi.

On this basis, there is no genuine issue requiring a trial on the question of the applicability of the OPCF 44R Family Protection Endorsement to the Plaintiff’s claims. On this basis the judge ruled a final declaration of right that the OPCF 44R Family Protection Endorsement is engaged and applicable in this case.

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