Car Accidents

Car Accidents in Ontario: The Two Ways of Getting Compensation

In 2018 there was an estimated 35, 746 fatal and personal injury collisions in Ontario. Unfortunately, this means that car accidents are more common than many would think. To make matters worse, if you have been in an accident, the legislation and court system can make navigating your claim difficult and confusing. This is further compounded by the fact that such accidents are often traumatic, and the moments afterward can be a blur fear, anger, frustration, and anxiety.

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This article will explain, in a simple and straightforward manner, what your legal options are after a motor vehicle accident.

First, before retaining a lawyer, there are certain crucial steps you should follow directly after your motor vehicle accident.

1. If you, or anybody else, were injured due to the accident, seek medical attention immediately
2. Police should be called to the scene of a motor vehicle accident involving personal injury, or property damage which exceeds $2000
3. Accidents which did not result in immediate injuries, or damages less than $2000, should be reported at a Collision Reporting Centre within 24 hours
4. Collect and preserve evidence such as witness testimony, pictures of the accident, the accident report itself, medical records, and income records
5. Hire a personal injury lawyer to represent you in seeking just and fair compensation for your damages (it is recommended you contact a lawyer as soon as possible after the accident, so that a professional can guide your through our convoluted legal system)

The two claims

If you find yourself in a motor vehicle accident you have two potential legal actions to pursue.

The first is an accident benefit claim. This claim is against your own insurance company. After all, they are the ones who are responsible for paying your accident benefits. This is the reason why we have no fault insurance in Ontario. This type of insurance means that, regardless of who is at fault for the accident, the insurance company of each driver handles their claims. In short, you deal with your insurer, while the other driver deals with theirs.

It is important to note that your claim for accident benefits does not cover loss of competitive advantage in the workplace, loss of guidance, home maintenance costs, or pain and suffering.

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What your accident benefit claim will cover is:

• Any out of pocket expenses you incurred due to the accident (i.e. any assistive devices you may need due to your injuries, costs of medication, transportation to and from medical appointments if the distance is greater than 50km, and hospital parking)
• Attendant care benefits (someone whom you must pay to help you take care of yourself, clean, and cook)
• Medical rehabilitation which is not covered under OHIP (massage treatments, physiotherapy, counseling, and chiropractic treatments)
• Death benefits (if someone died due to the car accident, this covers benefits to the living spouse and dependents, and funeral expenses)
• Income replacement (up to $400 a week, if you were employed at the time of the motor vehicle accident, or $185 per week in non-earner benefits)

Your second claim is the “tort claim”. This is when you sue the negligent, at fault, driver.

For this claim you want to have the insurance company of the at fault driver recognize your damages, agree that you were not the cause of the accident, and pay your injuries accordingly.

In this claim we can include pain and suffering, home maintenance costs, loss of income, housekeeping costs, future care costs, as well as any other losses which we can quantify and were not covered by the accident benefits claim.

However, there are some important factors regarding tort claims that most people don’t know about. Neither the Ontario government nor the insurance companies educate people on the following:

1. The compensation you receive for pain and suffering (known as non-pecuniary damages award) is subjected to a $38,818.97 deductible. What this means is that if a judge or jury awards you $40, 000.00 at trial, you would only receive $1181.03. If you are awarded less than the deductible, you get nothing! The deductible only disappears if your award exceeds $129,395.49.
2. Family Law Act claims, or claims by a relative for the loss of guidance, care, and companionship of an injured person, have a $19,409.49 deductible, which only disappears if the award exceeds $64,697.21.
3. These deductibles are subject to inflation and go up every year!
4. In addition to the hurdle placed by these deductibles, there is a threshold question for all tort claims. This is a test which means that the judge/jury must decide on whether the injuries suffered were both serious and permanent. If this threshold is not met then you are unable to recover compensation, no matter who was at fault. What this means is that if you are stopped at a red light, and a drunk driver crashes in to your car, however your injuries are not serious and permanent, then you are unable to recover any amount in tort!

Lessons of the Justice System

With so many hurdles to pass, a constant negotiation between parties, and an abundance of rules that must be followed to have a successful claim, navigating the legal system is difficult at the best of times. As such, it is important to contact a legal professional as soon as possible, to assess your claim, and to fight on your behalf in case of car accident.