Judge can’t conclude slippery substance causing loss of control came from unknown vehicle
In a motor vehicle collision case, the Ontario Superior Court summarily dismissed the injured plaintiff’s claim upon determining that he had failed to establish, on a balance of probabilities, that an unidentified vehicle had been involved in the accident.
Dubois-Gareau v. His Majesty the King, 2026 ONSC 5152, arose from a January 2012 motor vehicle accident on Highway 11, south of the Municipality of Temagami.
According to the plaintiff, he lost control of his vehicle, crossed into the oncoming lane of traffic, and collided with a third-party vehicle because an unidentified automobile had deposited a deleterious substance on the plaintiff’s lane.
The plaintiff sustained serious injury due to the accident. He was convicted and then later acquitted of a careless driving charge under Ontario’s Highway Traffic Act, 1990.
The plaintiff brought the present proceeding against Coachman Insurance Company and the Crown, which has since been released from the action.
Seeking compensatory damages from the remaining defendant, the plaintiff claimed coverage under the unidentified automobile provisions of the Ontario Automobile Policy (OAP) and the OPCF 44R Family Protection Coverage Endorsement.
Under the OAP, the plaintiff could avail of the standard coverage of $200,000 if he established on the balance of probabilities that the accident involved an unidentified automobile.
Under the OPCF 44R, the plaintiff could avail of additional coverage of $800,000 if “other material evidence” corroborated his evidence regarding an unidentified automobile’s involvement.
In a motion for summary judgment to dismiss the plaintiff’s claim, Coachman denied liability for coverage under OPCF 44R or the OAP’s unidentified automobile provisions.
The insurer alleged that the plaintiff failed to prove liability based on an unidentified automobile’s involvement and failed to provide corroborative evidence of such involvement as the OPCF 44R required.
In a cross-motion for summary judgment, the plaintiff argued that:
The Ontario Superior Court of Justice granted Coachman’s motion and summarily dismissed the plaintiff’s claim. The court also denied the plaintiff’s cross-motion.
Based on independent witness evidence and physical evidence supporting an unidentified automobile’s possible involvement, the Superior Court ruled that the plaintiff satisfied the evidentiary requirements for a potential coverage claim under the OPCF 44R endorsement.
First, the court accepted that Mr. Laurin, an independent witness, had alleged a slippery substance on the highway in the area of the collision. He believed the substance was fuel from a vehicle.
Second, the court acknowledged some physical evidence possibly corroborating Mr. Laurin’s claim of a substance on the roadway. The court explained that directional loss of control might have been due to reduced friction caused by a slippery substance.
Despite the satisfaction of the OPCF 44R’s evidentiary requirement, the Superior Court emphasized that the coverage claim would only succeed if the evidence established on a balance of probabilities an unidentified automobile’s involvement in the accident.
Considering the time that had passed and the significant testing of all the evidence over more than a decade, the court concluded that a trial would not be helpful in gathering additional evidence to resolve the case.
The court recognized that Mr. Laurin said he had slipped on a substance on the roadway. However, the court could not determine that the substance likely came from an unidentified vehicle.
Given its conclusion that supported a summary dismissal of the plaintiff’s action, the Superior Court found it unnecessary to determine whether Coachman was liable for damages due to the negligence of an unidentified automobile’s driver or owner.
Here are some other recent Ontario Superior Court decisions involving injuries arising from vehicular accidents.
In a motor vehicle accident proceeding, the court issued an Aug. 27 decision fixing full indemnity costs at $74,934.33 for a defendant who had agreed to pay $150,000 pursuant to a settlement with the plaintiff through a Pierringer agreement.
In proceedings arising from benefits claimed for a vehicular accident, the court made an Aug. 5 decision striking some claims but maintaining others in a lawsuit against a medical assessment firm, its employees, and the health professionals who examined the injured party.
In a personal injury proceeding arising from a motor vehicle collision, the court issued a July 17 decision confirming a settlement and itemized costs amounting to $1.1951 million, then awarding additional amounts for interest, substantial indemnity costs for the tort action, and partial indemnity costs for a hearing.
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