Can I bring a Claim for Personal Injury Sustained in a Car Accident?
We find that a lot of people have misconceptions about whether they can make a claim after they have been injured in a car accident in Ontario. Many people have a vague notion that “no fault insurance” was brought in or have past experience with a property damage claim and having to go to their own insurer as opposed to claiming against the other driver.
Those experiences have left many people with the idea that they can’t sue the other driver for injuries they sustained. The right to sue however was not taken away completely, rather it was restricted to keep minor or temporary injuries out of the system. The right to sue for permanent and serious injuries and for loss of income still exists. Also the restrictions on the right to sue only apply to certain defendants known as protected defendants.
Common Car Accident Misconceptions
It is helpful to understand the origins of these misconceptions. Claims costs to insurers skyrocketed in the 1980’s and a new system was needed to keep insurance premiums low and to reduce the stress of a large number of car accident cases in the court system. The idea was that only the most serious cases would go to court. Back in 1990 the provincial government passed legislation called the “Ontario Motorist Protection Plan” that was similar to the system that was in place in the state of Michigan.
At the time people including the media spoke of it as bringing in a “No Fault System” or adopting no-fault insurance. That terminology took hold. The system however was designed to be, and still is a hybrid system or combined system known as a “Threshold No Fault” system. That is under a certain threshold, you would not be able to sue, but over a certain “threshold” ie if you have a permanent and serious injury you would be able to sue.
In exchange for taking away the right to sue for minor or temporary injuries, enhanced accident benefits were included in the policy of insurance. These became commonly referred to as “no-fault benefits which added to the confusion.
Direct Compensation for Property Damage
Ontario also has another law that causes some people to think that they do not have the right to sue. We have what is known as direct compensation for property damage. Whereas it used to be common to sue someone for causing property damage to your car, now direct compensation for property damage is built into your insurance policy and you need to go to your own insurer to be compensated. The two insurance companies then work out whether there will be reimbursement behind the scenes.
Now there are essentially two avenues for seeking compensation:
An accident benefits claim against your own insurer.
A claim against the person that caused the accident. The claims process for obtaining accident benefits was and still is complex, disputes often arise, and many people have found they need a personal injury lawyer to assist them with these claims.
Getting the balance right, however, has been difficult, and since 1990 there have about 5 major changes to the system and many, many minor ones. Having a lawyer that specializes in personal injury law is important because they can advise you on the law that applies to your accident and specifically what claims you can make in a tort claim and/or in an accident benefits claim
Generally speaking however, you need to have a serious and permanent impairment of an important physical, mental or psychological function to maintain an action for either general damages or care costs in Ontario. Serious generally means that it interferes with your ability to do your regular employment, or interferes with your ability to continue training for a career or do most of your activities of daily living considering your age. Permanent basically means that it is continuous since the accident and is not expected to improve with reasonable participation in recommended treatment.
You do not need to meet that threshold to claim a loss of income or a loss of competitive advantage and there can be defendants in a car accident case to which the threshold does not apply.
This post is intended for information purposes only and is not legal advice. If you have been injured in a car accident in Hamilton, Burlington, Niagara Falls, Brampton, Mississauga or another city in Southern Ontario, we would recommend that you call us or another lawyer that is experienced in personal injury law to determine what your rights are.