Author: Fatema Tokhy

Although rare, given that driving without insurance is illegal in Canada, its infrequency should not lessen its importance. Please note that the rules governing auto insurance are complex and beyond the scope of this blog.

I was hit by an uninsured/unidentified driver, but I have insurance. Now what?

Generally speaking, you would apply to accident benefits through your own insurance company1 and commence a lawsuit against the at-fault driver for damages. However if the at-fault driver cannot be identified or uninsured, you would then sue your own insurance company. There are good policy reasons why generally your insurer must step in to compensate you for your losses due to the negligence of an uninsured/unknown driver.

Make no mistake, your insurer will not give you favourable treatment just because you have a policy of insurance with them. They will defend against the lawsuit to the full reach of the law. Please note there are strict rules that must be complied with. To illustrate this point, in a recent decision Lamb v. Co-operators General Insurance Co., 2020 ONSC 4955 (CanLII), Co-operators brought a motion for summary judgment and denied insurance coverage to the plaintiff because “...despite having "every opportunity" to identify the vehicle owner or driver, Ms. Lamb made no effort to do so.” While the Court disagreed with Co-operators, it nevertheless discussed the obligation of the Plaintiff suing their own insurance company because of an unidentified driver,

Given the definition of an "unidentified automobile," the case law recognizes that for a plaintiff, like Ms. Lamb, to succeed in a claim against her insurer, she must establish, on a balance of probabilities, that she could not ascertain by reasonable means the identity of the driver or owner of the vehicle that injured her...

I was hit by an uninsured/unidentified driver and I don’t have insurance. Now what?

In these circumstances, where no one has insurance to compensate the victim for their losses/damages, there is a legal entity called Motor Vehicle Accident Claims Fund (“MVACF” or the “Fund”) that approaches the podium and responds to the claim.

Not surprisingly MVACF is heavily regulated, complex and, since it is a creature of the provincial government, the Fund will aggressively defend the lawsuit. Moreover, they are known as the payor of last resort which means “you can only receive compensation through the fund if there are is no insurance coverage available.” MVACF may compensate an injured party for some of their damages up to Ontario’s minimum liability limits of $200,000. This means, your damages is subject to a cap of $200,000. There are strict notice requirements where you must notify the Fund within 90 days of being involved in a collision if no one has insurance. That way they preserve the right to conduct their own investigation. If you do not comply, they may deny coverage. Also as illustrated above, if the Plaintiff failed to ascertain the identity of the at-fault driver, which was not reasonable given the circumstances, the Fund may deny coverage. Again, the expertise of the lawyer is highly recommended given the nuances and potential pitfalls in the legislation.

Please contact Bonn Law for your free assessment.

[1] For an explanation of what these benefits are, please click here https://www.fsco.gov.on.ca/en/auto/brochures/pages/brochure_claims.aspx#accident
[1] Summary judgment motion is when one party is trying to end the lawsuit early