August 31, 2022

Admissibility of hearsay evidence for OPCF 44R claims presents new issues for insurers

Admissibility of hearsay evidence for OPCF 44R claims presents new issues for insurers

Written by: Rick T. Aucoin

Admissibility of hearsay evidence for OPCF 44R claims presents new issues for insurers

By Rick Aucoin, Partner, and Damian Di Biase, Articling Student, Beard Winter LLP

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A recent decision from the Ontario Superior Court of Justice ruled that hearsay evidence can fulfill the corroboration requirement and establish coverage under an OPCF 44R Family Protection Endorsement.

The court maintained that the test for corroboration occurs before the truth of the evidence is assessed in the liability phase of the trial. The existence of corroboration does not tie the insurer’s hands to limit its ability to contest the mechanism of the accident and injury when considering whether the plaintiff’s injuries meet the threshold.

Nonetheless, the court granted the plaintiff’s motion and found there was no genuine issue requiring a trial on the question of the applicability of the OPCF 44R Family Protection Endorsement. While the decision assists claimants in acquiring greater coverage, it presents insurers with a greater difficulty in determining what physical or testimonial evidence will suffice to qualify a claimant for additional coverage.

The plaintiff was involved in an accident with an unidentified motorist and made a claim under their OPCF 44R Endorsement

In Ontario, the standard motor vehicle insurance policy provides the insured with $200,000 in coverage for injuries or damage caused by an unidentified vehicle. An insured can buy extra coverage for these types of accidents by obtaining an OPCF 44R Family Protection Endorsement. The Endorsement requires that the involvement of an unidentified vehicle be supported by corroborating evidence.

In Aditi v Doe, 2022 ONSC 4049, the plaintiff had been injured in an accident with an unidentified motorist. The plaintiff was insured under an OPCF 44R Family Protection Endorsement which required the plaintiff to provide corroborating material evidence, such as physical or independent witness evidence, when making their claim.

After the accident had occurred a witness had stopped at the scene of the crash to support the plaintiff. When speaking with a police officer, the witness confirmed the plaintiff’s version of events, but the witness’s identity or contact details were not recorded by the officer. The officer testified that he recalled speaking with the witness and confirmed their rendition of events at cross-examination.

The issue was whether the officer’s recollection of the witness’s statements constituted corroboration evidence

The court highlighted the fact that the witness’s statements constituted hearsay and because it could not be saved by any of the exceptions to the hearsay rule, it could not be used at trial. However, the officer’s evidence that they had spoken with the witness was not hearsay. The question, therefore, was whether the officer’s recollection of the witness’s statements amount to corroboration.

The officer’s recollection fulfilled the corroboration requirement by providing the insurer with the assurance that an unidentified motorist was involved in the crash

The answer came down to the issue of statutory interpretation. The court accepted that coverage under the OPCF 44R Family Protection Endorsement is interpreted broadly. In interpreting the requirement for the plaintiff’s evidence to be corroborated by “other material evidence,” the court found the word “evidence” itself was not determinative, but the context of its usage was. The purpose of the corroboration requirement was to limit the scope of the insurer’s exposure and provide some comfort as to the validity of the claim.

While the officer’s evidence would not be admissible to convict an accused person of an offence, it was enough to ensure that the insurer had a fair assurance, external to the plaintiff, that an unidentified driver was involved. The fact that a police officer conducted a form of investigation, and that the hearsay came from their mouth or notes, rather than from the plaintiff, allowed the statements to qualify as independent witness evidence that was sufficient to satisfy the corroboration requirement.

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