Written By: Michael Warfe and Ryan Marinacci, Student-at-Law
“The question is not whether it was possible for Ms. Lamb to identify the driver or record his license plate. 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…
…to conclude that Ms. Lamb behaved unreasonably by not prioritizing obtaining the driver’s identifying information or recording his license plate would entirely ignore the reality of her situation. At the time, Ms. Lamb was rather obviously not in any condition to collect pertinent information regarding the driver who struck her.”
The Superior Court of Justice in Lamb v Co-Operators General Insurance, 2020 ONSC 4955 recently dismissed the motion for summary judgment brought by Co-Operators, the OPCF 44R insurer. Co-Operators argued that the Plaintiff had made no effort to identify the driver or owner of a vehicle that ultimately fled the scene after striking her even though she had every opportunity to do so. The court disagreed and found that the Plaintiff did not have a reasonable opportunity to identify the driver or vehicle that struck her due to her physical injuries and emotional condition, and the driver’s decision to flee within minutes.
Under s. 265(2) of the Insurance Act, “unidentified automobile” means an “automobile with respect to which the identity of either the owner or driver cannot be ascertained.” This determination, the court stated, turned on the reasonableness of the Plaintiff’s efforts to identify the owner or driver, citing the British Columbia Court of Appeal decision in Leggett v British Columbia (Insurance Corp. of), 1992 CanLII 1263 (BC CA) which held that:
The question, in my view, is not whether Mr. Leggett acted reasonably in deciding initially to abandon whatever rights he had, but whether he acted as a reasonable person would have acted who wanted to protect those rights, whatever they might prove to be.
Here, the court found that the Plaintiff had not acted unreasonably. She was struck in a plaza parking lot by a fast-moving vehicle and suffered a fractured tibial plateau that would require surgery. The driver did not engage the Plaintiff or her husband who was waiting for her in the parking lot and instead was concerned only about damage to his vehicle. Within two minutes, the Plaintiff was brought into a nearby restaurant and the driver was gone when her husband went back outside a few minutes later.
Co-Operators denied the Plaintiff’s application for accident benefits through her husband’s policy on the basis that she was 100% at fault for the collision, which position it later changed on the motion to rely on the Plaintiff’s failure to identify the vehicle or driver.
At issue on the motion for summary judgment was whether there was a triable issue concerning the reasonableness of the Plaintiff’s failure to identify the driver who struck her or record the license plate of his vehicle.
The court concluded that this was a triable issue that could not be resolved by summary judgment, and found that the Plaintiff had suffered a significant injury in the collision, was in considerable pain, and likely in shock. As such, she was focused on her condition and had not acted unreasonably in not obtaining the driver’s identifying information right after being struck. Indeed, the court stated, to find otherwise would entirely ignore the reality of her situation.
The court also rejected the argument by Co-Operators that the Plaintiff’s husband had tacitly communicated to the driver that he was free to leave when the husband moved her into the restaurant. This was because the Criminal Code imposed an obligation on drivers to identify themselves after an accident and remain at the scene.
Put bluntly, the court concluded that Co-Operators’ position was not a workable standard because it had a perverse effect and led to an absurd result:
 In the end, acceding to Co-operators’ position on this motion would serve to cast the burden on a plaintiff seeking redress for injuries caused by an “unidentified automobile” far too high. If a plaintiff is injured by a motor vehicle, and because of her injury is not in a position to collect information about the driver of that vehicle or record his license plate before that driver takes flight, they are the very sort of claimant the law should protect. To close the door on such a plaintiff’s claim would, in practical terms, have the somewhat perverse effect of only ever affording coverage to those injured by “hit and run” drivers who have the misfortune of being rendered unconscious. That would be a rather absurd result. It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences: Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27, 36 O.R. (3d) 419, at p. 27.
In the result, the motion was dismissed because Co-Operators failed to satisfy the court that there was no triable issue as to the reasonableness of the Plaintiff’s efforts to identify the driver or vehicle.