Under Ontario’s insurance laws, someone who is injured in a motor vehicle accident caused by an unidentified motorist can recover compensation if they meet specific legal requirements to claim under the OPCF-44R Endorsement.
Most people in Ontario have the optional OPCF-44R endorsement attached to their automobile insurance policy.
The OPCF-44R endorsement allows someone who is injured in a motor vehicle accident as a result of an unidentified motorist to access coverage up to their policy limits, which is usually $1 million, where the injured person can meet the strict evidentiary requirements.
According to the Ontario Court of Appeal in Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341, to access coverage up to the policy limits under OPCF 44R, the claimant must:
- Prove that the at-fault driver and owner of the vehicle are unidentified, and
- Corroborate the involvement of an unidentified vehicle with other material evidence.
The question of what qualified as “other material evidence” is one that the courts in Ontario have grappled with, but generally, it can fall into two categories:
- Independent witness evidence; and,
- Physical evidence.
Independent witness evidence means direct evidence from someone other than the injured person’s spouse or dependent relatives. The courts have held that police reports and accident reconstructions, which merely repeat the injured person’s version of events, are not considered independent unless what the injured person says can be verified by an independent source (per Paolucci v. John Doe, 2015 ONSC 7675).
Comparatively, physical evidence only needs to “indicate” the involvement of another vehicle. In Armstrong v. Dominion of Canada, 2013 ONSC 1949, the court clarified that “indicate” means “to be a sign or symptom of” — not conclusive proof, but some reliable signal of involvement.
Some examples of physical evidence include black box (ECU) data demonstrating evidence of evasive steering or braking, tire tracks suggesting lane-sharing or abrupt maneuvers, impact marks, debris from an unknown vehicle, etc. In Featherstone v. Doe, 2013 ONSC 3175, the court found that minimal physical evidence was sufficient to indicate the involvement of another vehicle where an accident reconstructionist could rely on it to draw an inference.
Whether the corroborating evidence is sufficient to meet the test is a question for the trier of fact – the judge or jury. Generally, the OPCF-44R endorsements are intended to be remedial and to be interpreted broadly (per Lewis v. Economical Insurance Group, 2010 ONCA 528). However, claimants still need to meet the corroboration requirement as a safeguard designed to protect insurers from fraudulent or unverifiable claims.
The OPCF 44R is an important endorsement that people looking to purchase auto insurance should ensure comes attached to their standard policy.
For someone injured in a hit-and-run, they must ensure that they have preserved the evidence needed to meet the legal test, that is, which corroborates another vehicle’s involvement in the collision. Legal advice early in the process is essential to help to preserve the evidence and protect your rights.