A recent case where a judge quashed an insurance company’s motion for summary judgment after it denied a woman’s claim raises important issues for both injured plaintiffs and insurance company defendants, says Toronto personal injury lawyer Rohan Haté.

Summary judgment involves one party bringing a motion to persuade a judge there is no genuine issue requiring a trial, and they can be difficult to succeed on, Haté explains.

“When a judge is faced with this decision that effectively bars the plaintiff from having her day in court, it’s an uphill battle for the defendant. There must be strong, compelling evidence to warrant summary judgment, otherwise, the judge will give the plaintiff the right to have her day in court. But that doesn’t necessarily bar the insurance company from raising the issues at trial,” he says.

In 2015, an Ontario woman sustained injuries to her arm and leg when the electric scooter she was driving collided with a car in a shopping plaza parking lot. While her injuries were being attended to by her husband and their friend, and before the woman could collect any information, the driver of the vehicle fled. The police were not called to the scene, and the woman didn’t go to the hospital for treatment.

Courts test for reasonableness
In dismissing the insurance company’s motion, the judge said the central question in the case is not whether it was possible for the woman to identify the driver or record his licence plate, but instead “it is whether her failure to do so was unreasonable in the circumstances, which necessarily takes into account her condition in the aftermath of the accident.”

While the insurance company felt it had a strong position, Haté says judges will “be sympathetic to plaintiffs in this woman’s position” to allow them to have their case heard on all issues by a trier of fact in court.

“A large portion of my practice is defending insurance companies in similar cases, and if I were defending the case, I would be advising the insurance company that they have the right to bring summary judgment, but that the chances of success in this particular case are slim given the issues are based on credibility, which is a triable issue,” he says.

Haté says if someone is injured in an accident through no fault of their own, they have an obligation to take reasonable steps to identify the driver of the other vehicle.

“First, you should call the police so they can conduct an investigation,” he says. “Try your best to identify who hit you by making a note of the make, model and colour of the vehicle. If you are able to, take a photo of the other driver’s licence and insurance or ask for assistance from someone at the scene.”

Following an accident, Haté says people are often in shock and may not be in a position to collect details about the other driver, but often there are witnesses who can fill in some of the information gaps.

“Scan the area for witnesses and ask for their contact information. Or, if there are no witnesses, ask a loved one to come to the scene and document as many details as you can. These days with the number of cameras outside of businesses, I suggest canvassing businesses in the area to see if they have surveillance footage of the accident,” he says.

What if you’re at fault?
Court documents show that two weeks after the accident, the woman filed an Application for Accident Benefits with her husband’s insurance company. The insurer denied the claim based on its assessment that the vehicle that struck the woman had the right of way.

“On that basis, Co-operators denied [the plaintiff’s] claim, asserting that she was 100 per cent liable for any damages or injuries,” court documents reveal.

Haté says an injured person is entitled to accident benefits whether they are at fault for an accident or not. Insurance companies are entitled to make the argument that a claimant is at fault or partially at fault for an accident if it relates to property damage, not entitlement to accident benefits.

Unidentifiable, uninsured or underinsured drivers
In hit and run accidents, it’s common for people to file claims with their own insurance company to recover damages for their injuries, Haté notes.

“Your insurance policy covers you for any accidents you’re involved in where the at-fault parties are unidentifiable, uninsured or underinsured,” he says. “Your insurance company steps into the shoes of the unidentified driver.

But that’s not an option in situations where you’ve collided with another uninsured car and can identify the driver, or if you’re a pedestrian without insurance who’s injured by an identifiable driver without insurance, Haté adds.

“In that scenario, injured people could make a claim to Ontario’s Motor Vehicle Accident Claims Fund. You can apply for compensation if you live in Ontario, were involved in a collision where no one had auto insurance, and if you were injured or have property damage worth more than $100,” he says.

Timing is critical
Haté says he had a similar case a few years ago involving a woman who was hit by the driver of an Escalade while she was riding her bicycle in Oakville. The driver of the SUV fled the scene. She sustained an injury to her hip requiring hip replacement surgery and was not able to return to work.

Ontario’s Insurance Act and associated regulations outline specific timelines to abide by when an accident occurs due to an unidentified vehicle. A plaintiff is obligated to do the following:

1. Report the accident to a police officer within 24 hours after it occurs or as soon as is practicable;
2. Give the insurer a written statement within 30 days after the accident occurs or as soon as is practicable setting out details of the accident;
3. Advise the insurer the accident was caused by a person who cannot be identified; and
4. Make available for inspection your automobile, if you were an occupant of one when the accident occurred.

In Haté’s case, the insurer brought a motion for summary judgment against his client on similar grounds.  Haté successfully defended the motion for summary judgment and, eventually, recovered a favourable settlement for his client.

“The issue came down to the same thing: did she make reasonable efforts to identify the other driver as required by the Insurance Act?  We argued that she did, and that she should be entitled to relief from forfeiture under s. 129 of the Insurance Act, which is an equitable relief.

“One of the maxims of equity is that it abhors a forfeiture, which means the courts apply the principle of fairness to the matters before them and avoid taking away rights unless it’s necessary,” he says.

When you’re looking to pursue legal remedies, timing is critical, Haté says. The Insurance Act has deadlines for applying for accident benefits when unidentified motorists are involved. There is also a two-year statute of limitation for filing a lawsuit from the day of the accident.

“You want to ensure you know the timelines and the information you’ll need to make a claim. First, make sure you or someone else collects the information for the other driver, contact the police and then speak to a lawyer so you understand your rights and obligations,” he says.