Ontario court decided on a claim for a collision at a Starbucks drive-through involving an unidentified motorist
A rear-end collision at a Starbucks drive-through in Ottawa cost Morgan Norma Barkey the last three months of her final year of high school. It also cost her insurer, Aviva Insurance Company of Canada, its motion to dismiss. On July 29, 2026, the Ontario Superior Court of Justice ruled in Barkey’s favour, upholding her unidentified motorist claim on all three issues Aviva raised.
Unidentified motorist due diligence: what the court said
The central question in Barkey v. Doe, 2026 ONSC 4390 was whether Barkey did enough to identify the other driver before he left the scene on March 1, 2021. She did not get the driver’s name, take a photo of his licence plate, or call the police, all things which she could have done with her phone.
Aviva argued she failed to meet the reasonable due diligence standard under s. 265(2) of the Insurance Act and s. 1.2.3 of the Ontario Automobile Policy (OAP 1).
The court disagreed. It applied the subjective test set out in Leggett v. British Columbia (Insurance Corp. of), 1992 CanLII 1263 (BC CA), which asks not what a reasonable person would have done, but what this particular person, in her particular condition, could have done. The key facts are:
- Barkey’s concussions: she had suffered four previous concussions from her from sporting activities, plus another concussion during the collision, as testified by a neuropsychologist
- situation during the collision: Barkey was only 18, had no experience with car accidents, was visibly distressed, and was unaware she was injured while the other driver was still present
As such, the court found that she did not choose to skip identifying the driver. Instead, she was just medically compromised and did not know she needed to act.
Late notice: why Aviva’s argument did not hold up
Barkey reported the accident to her insurance broker by phone the day after the collision, but filed a written claim with Aviva 56 days later. Notably, this is 26 days beyond the 30-day requirement under s. 6 of Insurance Act’s Regulation 676 on Uninsured Automobile Coverage.
Aviva said this breach should bar Barkey’s claim. However, the court said no, for three reasons:
- phone notice to a broker the day after the accident was an acceptable form of notice, as Aviva’s own adjuster confirmed this in cross-examination
- a private investigator testified that Starbucks and the gas station cameras never captured the rear vehicle’s licence plate; meaning, earlier notice would not have changed what Aviva could investigate
- Aviva itself waited eight months after receiving written notice before taking any investigative steps
On the onus question, the court applied Canadian Equipment Sales & Service Co. Ltd. v. Continental Insurance Co., 1975 CanLII 670 (ON CA). It held that it was Aviva’s burden to prove actual or potential prejudice; however, it had not done so.
Relief from forfeiture was granted under s. 129 of the Insurance Act, citing the enormous disparity between Barkey’s potential loss of coverage and Aviva’s zero demonstrable prejudice. This is consistent with the reasoning in Kozel v. The Personal Insurance Company, 2014 ONCA 130.
What corroborated the claim against the unidentified motorist
The OPCF 44R Family Protection Coverage Endorsement required independent or physical evidence that an unidentified vehicle was involved. Barkey’s parents observed spider crack marks on her rear bumper after the collision, which is a physical piece of evidence that the court accepted. Her chiropractor assessed Barkey with an acute concussion the following day, and she missed the remainder of her school year as a result.
The court found that together, this evidence was sufficient corroboration under ss. 1.5(b)(C) and 1.5(b)(D) of the OPCF 44R.
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