Ontario court upheld a claim by a high‑school senior who was rear‑ended at a Starbucks drive‑through, rejecting the insurer’s effort to dismiss the case on procedural grounds.
Judge finds due‑diligence requirement met despite lack of licence‑plate photo
The case, Barkey v. Doe, 2026 ONSC 4390, centered on whether the plaintiff, 18‑year‑old Morgan Norma Barkey, had taken reasonable steps to identify the driver who fled the scene on March 1, 2021.
The plaintiff did not obtain the driver’s name, capture a licence‑plate image, or call police. Aviva Insurance Company of Canada argued that this fell short of the “reasonable due diligence” standard in section 265(2) of the Insurance Act and the Ontario Automobile Policy.
The court applied a subjective test from Leggett v. British Columbia (Insurance Corp.), assessing what Barkey could have done given her personal condition. Medical testimony confirmed she had four prior concussions from sports, and she suffered an additional concussion in the collision. She was visibly distressed, inexperienced with traffic accidents, and unaware of her injuries while the other driver remained present. The judge concluded she did not deliberately avoid identifying the motorist; her medical state and lack of awareness accounted for the omission.
Late filing does not bar claim, court says
Barkey reported the incident to her broker by phone the next day, but submitted a written claim to Aviva 56 days later, exceeding the 30‑day deadline in regulation 676 of the Insurance Act. Aviva claimed the delay should invalidate the claim.
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The court rejected this, citing three points: the phone notice satisfied the notice requirement, a private investigator testified that surveillance footage never captured the fleeing vehicle’s licence plate, and the insurer itself delayed eight months before beginning any investigation.
Using the precedent set in Canadian Equipment Sales & Service Co. Ltd. v. Continental Insurance Co., the judge placed the burden on the insurer to demonstrate actual prejudice from the late filing. It failed to do so. Consequently, relief from forfeiture was granted under section 129 of the Insurance Act, emphasizing the disproportionate impact on Barkey versus the insurer’s unproven harm.
Evidence linking the unidentified motorist to the crash included spider‑crack marks on Barkey’s rear bumper, observed by her parents, and a chiropractic assessment confirming an acute concussion the following day. The tribunal deemed this corroboration adequate under sections 1.5(b)(C) and 1.5(b)(D) of the OPCF 44R Family Protection Coverage Endorsement.
While the decision rests on specific statutory interpretations, it illustrates how courts may weigh personal circumstances against procedural defaults. The outcome shows that insurers cannot rely solely on technical deadlines when a claimant’s health and the factual record suggest genuine hardship.
Impact on future uninsured‑motorist claims
The ruling may influence how insurers approach unidentified‑motorist claims, especially where claimants lack immediate access to identifying information.
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By emphasizing the subjective test, the court signals that the “reasonable person” standard is not always the appropriate measure in cases involving injury or confusion at the scene.
Legal analysts note that the decision aligns with prior appellate rulings, such as Kozel v. The Personal Insurance Company, which also favored equitable relief when the insurer’s prejudice is unsubstantiated.
However, the case also serves as a reminder that claimants should still aim to document accidents promptly, as the leniency hinged on the insurer’s own delays and the lack of available evidence.
In practical terms, the decision could affect how insurance companies draft their internal policies for handling late notices. They may need to reassess the weight given to initial phone reports versus formal written filings, particularly when surveillance footage cannot provide the missing details.
