Court says concussion, not carelessness, saved this driver's late claim against Aviva.
An Ontario court excused a driver's 56-day claim delay after ruling a concussion - not carelessness - kept her from identifying the driver who hit her.
The case began with a rear-end collision at a Starbucks drive-through in Ottawa on March 1, 2021. The claimant, then 18, was waiting for her order when another vehicle struck the back of her car. She spoke briefly with the other driver, who asked if she was "ok," but noticed no visible damage and did not take his name or licence plate before he drove away.
She called her insurance broker the next day to report the accident and saw a chiropractor the same day for neck pain and headaches. She did not file a formal accident benefits claim with her insurer, Aviva Insurance Company of Canada, until April 26, 2021 - 56 days after the crash and 26 days past the 30-day notice period set out in Ontario's Insurance Act and her policy's statutory conditions. She also did not report the collision to police within the required 24 hours.
Aviva argued the delays, combined with the claimant's failure to identify the other driver, should bar her claim under the policy's unidentified automobile coverage, which applies only where the driver's or owner's identity cannot be ascertained through reasonable due diligence.
The court disagreed. A neuropsychologist testified the claimant probably suffered a concussion, a risk heightened by four earlier sports-related concussions, and that her resulting confusion and shock explained why she did not gather the other driver's information at the scene. Her parents later observed spider cracking on her rear bumper that had not been there before the crash, evidence the court accepted as corroborating an unidentified vehicle's involvement, together with her chiropractic records and her call to the broker.
On prejudice to the insurer, a private investigator testified that camera footage from the Starbucks and an adjoining gas station did not capture the vehicle involved, and that the barista who served the claimant could not have seen it either. The court found this meant Aviva could not have identified the driver even with earlier notice, and an adjuster for the insurer agreed in cross-examination that the late notice caused no consequence to Aviva's position. "Aviva did not take any steps to investigate for a further 8 months," the court noted, even after receiving formal written notice.
Relying on section 129 of the Insurance Act, which lets courts grant relief from forfeiture for imperfect compliance with policy conditions, the court found the claimant's conduct reasonable, the breach not grave, and the disparity between her potential loss of coverage and any harm to Aviva significant enough to justify relief.
The court ultimately ruled that the claimant could not have identified the other driver through reasonable diligence, that her evidence sufficiently corroborated an unidentified vehicle's involvement, and that relief from forfeiture applied to any breach of the notice requirements. Submissions on costs are still to follow.
For claims professionals, the decision turns on the insurer's onus to show actual or potential prejudice from late notice - an onus the court found Aviva did not meet, given uncontradicted evidence that earlier notice would not have changed the investigative outcome.
