



COURT OF APPEAL FOR ONTARIO

CITATION: Sadat v. Pica, 2019 ONCA 186

DATE: 20190307

DOCKET: C65909

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Ahmed Fordjour Sadat

Plaintiff (Appellant)

and

Venessa Pica, Mary A. Pica, Lascelles A. Browney,
    Roberto Manco, Sabrina Manco, Nazar Kwarkies, Jian Lin, Jian Hing Supermarket
    Inc., Matthew Tersigni, Mary Tersigni, Nilamkumari C. Patel, John Doe and
    Certas Direct Insurance Company

Defendants (Respondents)

Ian Little, for the appellant

J.-C Rioux and Candace Mak, for the respondent Certas
    Direct Insurance Company

Mark Fonseca, for the respondents Jian Lin and Jian Hing
    Supermarket Inc.

Heard and released orally: March 4, 2019

On appeal from the judgment of Justice Michael G. Emery
    of the Superior Court of Justice, dated August 22, 2018.

REASONS FOR DECISION

[1]

This is an appeal from a decision granting summary
    judgment dismissing the action against the respondent insurer.  The appellant
    was involved in a car accident where his vehicle was struck from behind.  The
    appellant has liability coverage under his own policy with the respondent
    insurer in accordance with s. 265 of the
Insurance Act
,
R.S.O. 1990, c. I.8,
and s. 5 of the standard
    Ontario motor vehicle liability policy on behalf of uninsured and unidentified
    automobiles.  An unidentified automobile is defined in the Policy as one where either
    the owner or driver cannot be ascertained.

[2]

The appellant argues that the motion judge erred
    by releasing the respondent from the claim for the uninsured or unidentified
    automobile coverage. He says that if the jury finds no liability on the part of
    either of the two driver defendants at trial, then he should be able to recover
    from the respondent because the jurys verdict will mean that the accident was
    caused by an unidentified automobile.

[3]

The motion judge carefully analyzed the context
    for the appellants claim.  There is no dispute about the identity of the two
    other motorists involved in the accident: either Jian Lin or Venessa Pica was the
    driver responsible for the accident.  There is no evidence that there was a
    third unidentified car and no one takes the position that there was.  The sole
    question at trial will be which, if either, of the known vehicles or drivers
    was legally responsible for the accident.  On that basis, the motion judge
    correctly dismissed the appellants claim against the respondent because there
    is no alleged unidentified automobile.

[4]

The appeal is dismissed.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.


