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Ontario Court of Appeal Decision Affirms Corroboration is not Causation

In Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959, the Ontario Court of Appeal confirmed that a finding of involvement of an unidentified motor vehicle is not incompatible with a finding that there was no negligence by that unidentified motor vehicle.

The action arose out of a motor vehicle accident in which the plaintiff alleged that an unidentified car travelling in the opposite direction crossed into her lane causing her to swerve and lose control of her car resulting in personal injuries. As a result, she claimed under the OPCF 44R unidentified motorist coverage from her own insurer.

At trial, the jury found that the plaintiff had provided sufficient evidence that there was an unidentified automobile involved in the accident. However, the jury also found that the plaintiff had not established that the unidentified motor vehicle caused or contributed to the accident.

The main issue on appeal was whether or not these two answers were incompatible. The Court of Appeal determined that they were not.

The plaintiff had to prove two things to be successful at recovering under the OPCF-44R:

  1. The claimant is required to provide their “own evidence of the involvement” of another, unidentified, vehicle in the accident which “must be corroborated by other material evidence”; and
  2. That the negligence of the unidentified driver caused or contributed to the accident.

The Court of Appeal found that the jury’s answers to each question were easily reconcilable: while the jury determined the evidence of the witnesses — the plaintiff`s passengers — corroborated the plaintiff’s evidence that an unidentified car was involved in the accident, they did not determine that the “cause” of the accident was the unidentified driver crossing into the plaintiff`s lane. The evidence supported the jury reaching this conclusion, in that there were inconsistencies between the plaintiff’s evidence and the witnesses’ evidence as to the cause of the accident. The Court of Appeal explained that “legal causation” and “mere involvement” differ and the latter can exist without the former.

Significance of Decision

This case confirms that the standard for appellant intervention is stringent. The Court of Appeal is unlikely to interfere with findings made by a jury and will attempt to reconcile potential discrepancies before setting aside the verdict. Litigants who are unhappy with a jury’s verdict would be remiss not to heed the Court’s caution, and should consider alternatives to appealing a decision reached by a jury. For instance, the Court of Appeal addressed one possible alternative — that is, the appellant could have brought a motion under r. 52.08(1)(c) of the Rules of Civil Procedure as soon as the verdict has been rendered requesting that the Court exercise its discretion and direct the action be retried by another jury, which is allowed when the jury answers some but not all of the questions directed to it, or gives conflicting answers, so that judgment cannot be granted on its findings.

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