Inadmissible hearsay evidence is sufficient for a driver involved in a collision brought about by an unidentified motorist to obtain the $1 million limit of her auto policy’s OPCF 44R Spouse and children Protection Endorsement, an Ontario court has dominated.

“There is no doubt…the evidence of [OPP officer Derek] Bowman that ‘the witness told me…’ would not be admissible to convict an accused man or woman of an offence involving the subject matter issue,” Ontario Excellent Court Justice Fred Myers dominated in a final decision produced July 8. “It is not admissible to make a obtaining of carelessness against everyone both. But is it sufficient to give an insurance provider realistic ease and comfort that the plaintiff is not creating the incident up?

“In my view, bearing in thoughts the shopper security intent to insurance policy regulation and the really unique contractual requirement for corroboration ‘indicating’ (not ‘proving’) involvement of an unknown auto, the corroboration need can be glad by hearsay.

“The reality that anyone stopped and waited and spoke to the officer does not satisfy the reliability prerequisite of the principled exception to the hearsay rule. But it fulfills the independence and materiality requirements of the [insurance] contract.”

Fowzia Aditi was driving northbound on Highway 404 in close proximity to Sheppard Avenue in Toronto in Oct 2019, when she begun to make a lane modify. Her car insurance provider, Intact Insurance policies, described in court her evidence of what took place next as follows:

She was attempting to adjust lanes mainly because her lane was turning into an HOV [car-pooling] lane. As she was halfway by means of her lane improve, she noticed a black select-up truck relocating into the identical lane she was merging into. She felt it was travelling considerably quicker than her and coming from her ideal. She braked and swerved again into her unique lane and collided with the centre guardrail. The black decide on-up did not halt.

A vehicle in entrance of Aditi stopped and presented a witness statement to Bowman. The policer officer’s subject notes point out:  “– auto hit still left concrete guardrail – fem driver reduce-off by black decide on up – mysterious details – Impartial witness confirms but cannot provide info for automobile.” The officer did not acquire down the make contact with details of the witness building the statement, given that they could not confirm the identification of the black pick-up.

Aditi’s vehicle coverage plan provided $200,000 essential protection for problems caused by an uninsured or unknown auto. She also compensated for optional further coverage of up to $1 million in an OPCF 44R Spouse and children Security Endorsement.

The policy states that when the other driver concerned in the collision are not able to be determined, the $1 million plan limit of the OPCF 44R Family Security Endorsement can only be accessed if the insured driver’s proof of the incident can be “corroborated by other product evidence.” This is further described as “independent witness evidence” or “physical evidence indicating the involvement of an unknown vehicle.”

For Intact, the expression “evidence,” as made use of in the plan, refers to evidence admissible in court docket to demonstrate the truth of the matter of its written content. “By definition, evidence that is not admissible simply cannot be used by a courtroom to show a fact,” the court paraphrased Intact as arguing.

Aditi, on the other hand, stated the car policy does not refer exclusively to “admissible evidence,” only “evidence.” She argued it is prevalent parlance to refer to rumour evidence when referring to the term “evidence.”

The court eventually sided with Aditi.

“In my check out the proof of [OPP officer] Bowman that the witness verified [Aditi’s] story to him might be sufficient with out considering the fact of its material,” Myers wrote. “We know an individual was there…

“The rumour proof of a black truck remaining there is a sufficient indicator of the involvement of an unidentified car or truck to satisfy the purpose of the corroboration necessity in the parties’ [auto insurance] agreement.”

 

Function photo courtesy of iStock.com/gilaxia