A driver who suffered catastrophic injuries in a 2012 collision has failed to obtain $1 million in coverage from Coachman Insurance Company after failing to establish that another vehicle was responsible for the substance allegedly present on the roadway.

In a decision available only in English, the Ontario Superior Court of Justice granted Coachman’s motion for summary judgment and dismissed Alexandre Dubois-Gareau’s claim under both the standard Ontario Automobile Policy (OAP) and the Family Protection Coverage (OPCF 44R) endorsement. The decision followed a hearing held July 20 and 21, 2026.

Disputed road conditions

The civil proceeding before the Ontario Superior Court of Justice arose from a collision on January 18, 2012, south of the Municipality of Temagami. The plaintiff suddenly lost directional control, crossed the centre line, and struck Jean Roberge’s pick-up truck travelling in the opposite direction. He has no memory of the accident and cannot explain why his motor vehicle crossed the centre line.

Stephane Laurin was the first witness to arrive on scene after the collision. He stopped his vehicle to protect traffic. Upon arriving, Mr. Laurin exited his vehicle around the centre line of the highway, immediately slipped on a substance on the roadway and fell. He believed the substance was fuel spilled by a vehicle. However, he could neither see nor smell gasoline, and his descriptions of the road conditions changed over time.

Police officers who attended the scene did not observe the same conditions. One reported ice in the middle of the lanes but no other slippery substance, while the collision reconstruction report concluded that road conditions were not a contributing factor.

The plaintiff was charged with careless driving and convicted in 2015 but successfully appealed and was acquitted after a retrial in 2018. At the re-trial, the Justice of the Peace accepted Mr. Laurin's evidence that the southbound lane was slippery, but the trial evidence was not sufficient to establish why it was. The re-trial court did not conclude that the slipperiness was the result of a spill from a motor vehicle.

The plaintiff claimed that an unidentified automobile deposited a deleterious substance on lane of travel causing him to lose traction and cross into the other lane. His Coachman policy included coverage for injuries caused by an unidentified automobile under two parts. Standard OAP terms provide $200,000 in coverage if the plaintiff proves on a balance of probabilities that an unidentified automobile was involved in the accident; an additional OPCF 44R endorsement provides $800,000 in coverage, but only if the plaintiff's own evidence of that involvement is corroborated by "other material evidence."

The plaintiff's accident reconstruction expert concluded that the loss of control was consistent with reduced traction. Coachman's expert disagreed, finding the available evidence consistent with driver error, inattentiveness or distraction and concluding that road conditions would not have prevented the plaintiff from negotiating the curve. Both parties agreed that all evidence that could be introduced at trial was before the court and that a final determination on summary judgment was appropriate.

Coachman argued there was insufficient evidence linking the slippery conditions to an unidentified automobile, while the plaintiff relied on Laurin's testimony and expert evidence about the vehicle's loss of traction.

The OPCF 44R threshold is met

The court rejected two of Coachman's threshold arguments. Coachman's argument that there is no claim for OPCF 44R coverage if the plaintiff does not personally testify about the involvement of an unidentified vehicle must fail, as it would lead to an absurd result, depriving plaintiffs incapable of giving evidence of coverage even where there is abundant physical or independent evidence. Coachman's argument that Mr. Laurin's evidence must itself be corroborated in the absence of the plaintiff's direct evidence must also fail.

On the question of physical evidence, the court noted that the plaintiff need only show that the evidence indicates the involvement of another automobile, not prove it. The court found there was some physical evidence — the directional loss of control, supported by the plaintiff’s expert report — that could corroborate Mr. Laurin's evidence concerning the presence of a substance on the roadway. The court was satisfied that the plaintiff met the evidentiary threshold of the OPCF 44R endorsement, finding both independent evidence and some physical evidence to support the potential involvement of an unidentified automobile.

Evidence falls short

Clearing the OPCF 44R's evidentiary hurdle was not enough: the court still had to be satisfied, on a balance of probabilities that an unidentified automobile was actually involved in the accident. The same standard applies to the OAP claim, which requires convincing evidence of that involvement. The court confirmed that proof of a fluid's origin does not require direct observation: visual evidence and the smell of a petroleum product may be sufficient, and reasonable inferences can amount to convincing evidence.

At that stage, the evidence did not hold. Mr. Laurin never visually observed a "film" and could not smell fuel. His evidence changed over time: his earliest statement described the road as slippery in both lanes, while later evidence focused on the southbound lane; he later said he never checked the northbound lane. Mr. Laurin's observations were made at an unknown time after the accident, when road conditions could already have been affected by fluids from the vehicles and emergency response activities. There is undisputed evidence that fluids were released from the Pontiac and the Sierra immediately after the collision, which could explain the slippery conditions later observed. Officers Morrison and Loach did not note a generally slippery road surface; Morrison observed a strip of ice in the middle of both lanes, while Loach noted snow build-up.

Both experts agreed that the Pontiac's directional loss of control may have been caused by many things, including several possibilities related to driver inattention or negligence. The civil court found that the HTA retrial had overstated the evidence by concluding that road conditions ‘became a factor.’ It found it would have been more accurate to say they ‘may have been’ a factor. In any event, that finding did not extend to concluding the slipperiness resulted from a motor vehicle spill.

The circumstantial evidence was insufficient to establish the source of the slippery road conditions. The court was not satisfied that it was more likely than not that a substance had been deposited by an unidentified vehicle or that such a substance was involved in the accident. Given the passage of time and the extensive testing of the evidence over more than a decade, the court concluded that a trial would not produce additional evidence that could assist it.

Claim dismissed

Coachman's motion for summary judgment was granted and the plaintiff's action was dismissed. The plaintiff's cross-motion was also dismissed.