In Ontario, car accident victims can receive compensation from two main sources, claims for accident benefits and tort claims.
Car accident injury victims (including passengers, drivers, pedestrians and cyclists) can claim accident benefits from their own motor vehicle insurer under their own motor vehicle insurance policy. With Ontario’s no fault auto insurance system, accident benefits are available to victims regardless of who is at fault in a car accident. The benefits include medical and rehabilitation expenses, compensation for income loss and care services. If you have no insurance, you can claim the benefits from the at fault party’s insurer.
Accident benefits are available even in cases where victims are injured by under-insured, uninsured or by unidentified drivers.
Tort Claims – The Legal Threshold
In addition to accident benefits, car accident victims can claim compensation in what is known as a Tort claim, meaning a claim against the at fault party. Injury victims can claim compensation from the at fault party or parties on the basis of negligence. A tort claim can provide compensation for additional income losses not covered by accident benefits, such as, medical expenses, rehabilitation expenses, out of pocket expenses, financial losses, pain and suffering damages and more.
While every person who is injured in a car accident in Ontario has an accident benefits claim, not every accident victim will have a tort claim. The person advancing the tort claim has the onus of proving that the at fault party was negligent and then also that they meet the threshold set out in the Insurance Act that they are seriously and permanently injured.
The car insurance system in Ontario is intended to limit tort actions to more serious claims. The Insurance Act provides that a deductible is applied against awards of general damages for pain and suffering. The amount of this deductible is significant (currently $30,000). The deductible does vary depending on some factors such as the date of the accident and the amount of the award is relevant since if the amount of general damages award exceeds a stated amount (currently $100,000), the deductible does not apply.
The threshold means that the injured person must have met a certain high level of impairment from the injuries sustained in the accident before they can receive damages for pain and suffering. In general terms, the “threshold” requires the injured person to have suffered an injury that results in serious and permanent impairment. The interpretation of the threshold definition in the Insurance Act is constantly evolving as a result of judge made laws and cases coming out of the Ontario courts. The test also changes when the regulations under the Insurance Act are amended from time to time.
If you meet the threshold, you can claim pain and suffering damages and advance a tort claim for other losses such as income loss, medical expenses, rehabilitation expenses, health care expenses, house keeping costs, home maintenance expenses and various other out of pocket expenses.
Limitation Periods and Notice Periods
There are strict time lines applicable to anyone who wishes to commence a tort action. Currently (2013), if an injured person intends to advance a tort claim against an at-fault driver, they must start the court action within 2 years of the date of their accident. There are also notice requirements to be met and the limitation period changes if you are suing your own insurance company.
If you have been injured in a car accident, regardless of the type of motor vehicle accident, you should consult with a personal injury lawyer to determine your interests and rights.
We offer free consultations and no fee until you win retainers.