If you have been injured in a collision in Durham Region, two things are true that almost nobody tells you at the scene.
You have two separate claims, not one, and they run at the same time. And Ontario takes a deductible of nearly $48,000 out of pain and suffering awards before you see a dollar.
Steven Polak is a partner at Lerners LLP, has practised from the Whitby office at 123 Athol Street for over twenty years, and since 2008 has acted only for injured people. He does not act for insurers.
Call 905-409-2438. Consultations are free, at the office, at your home, or in hospital.
Your two claims, and why the difference matters
1. Accident benefits. These come from your own insurer, whoever caused the collision. Medical and rehabilitation treatment and attendant care, which remain mandatory coverage. Income replacement, housekeeping and related expenses, which became optional benefits on 1 July 2026 and now depend on what your policy includes.
You are entitled to these even if the crash was your fault, and even if you had no insurance of your own, in which case the claim usually goes through the other vehicle’s insurer or the Motor Vehicle Accident Claims Fund.
2. The tort claim. The lawsuit against the at-fault driver. Pain and suffering, income loss beyond what accident benefits cover, future care costs, and claims by family members under the Family Law Act.
Most people think they have one claim. The deadlines, the paperwork and the opponents are different for each.
The deadlines that end claims
Alert: telling your insurer about the crash is not a claim for accident benefits. In Jakupovic v. Intact Insurance Company, 2026 ONCA 651, the Court of Appeal held that reporting an accident, even repeatedly, does not satisfy the seven day notice requirement in section 32(1). You have to say that you intend to claim benefits. If you are already late, section 34 can still excuse the delay where you have a reasonable explanation, but the explanation will be tested. Read what the decision means for your claim.
| Deadline | What it applies to |
|---|---|
| 7 days | Notify your own insurer of the collision |
| 30 days | Return the completed accident benefits application |
| 120 days | Notice of claim to the defendants. Not normally a bar to proceeding if missed, and often extended |
| 2 years | General limitation period for the lawsuit |
The short deadlines come first and are the ones people miss. If one has already passed, call anyway. There are exceptions.
The insurer’s doctor is not your doctor
At some point your insurer will send you for an assessment. The assessor is selected and paid by the insurer, and their report frequently becomes the basis for reducing or cutting off your benefits.
This is where a great many claims are quietly lost, and it is one of the reasons to have someone involved early. Those opinions can be tested, and in Steven’s experience they often do not survive being tested properly.
Read more on insurer assessments
The deductible almost nobody is told about
This is the most important paragraph on this page.
Ontario applies a statutory deductible to pain and suffering awards. For 2026:
| Amount | |
|---|---|
| Deductible on pain and suffering | $47,913.01 |
| Disappears only if the award exceeds | $159,708.71 |
| Family Law Act deductible | $23,956.52 |
| Disappears only above | $79,853.70 |
These figures are adjusted every January.
In practice, an award of $100,000 for pain and suffering puts roughly $52,000 in the injured person’s hands. The at-fault driver pays nothing extra. The reduction comes out of the innocent party’s compensation.
A spouse or child bringing their own Family Law Act claim faces a second deductible of their own. Very few people are told that either.
There is also a ceiling. The most serious injuries in Canada are subject to a cap on damages for pain and suffering, approximately $484,000 as of September 2026, which is recalculated monthly for inflation. It does not cap income loss or future care, which in a serious case are usually the larger part of the claim.
Collisions we act on
Drivers and passengers. Pedestrians struck by vehicles. Cyclists. Motorcycles. ATVs and snowmobiles. Hit and run and uninsured drivers. Fatal collisions and claims by surviving family members.
If you were a passenger, you can usually claim against the driver of the car you were in, including a friend or a family member, because the claim runs through their insurance.
If you were on a bicycle or on foot, you are very likely entitled to accident benefits through the insurer of the vehicle that hit you, even with no car insurance of your own. People routinely do not know this and never claim.
Where your case would be handled
Collisions in Durham are litigated at the Durham Region Courthouse, 150 Bond Street East, Oshawa. Steven appears there regularly and knows how matters move through that courthouse.
Examinations for discovery in Durham are typically held at Durham Court Reporting, 12 Stanley Court, Whitby.
A claim usually runs: records gathered, statement of claim issued, discoveries, mediation, pre-trial, then trial if it does not resolve. Most settle. Some do not, and the firm has the resources to try a case, which affects what insurers offer.
What it costs
Consultations are free. Cases are taken on contingency, so fees come out of what is recovered, under a written agreement using the Law Society’s mandated template. Fees range from 0% where benefits are approved without a claim being filed, through 20% to 25% for early settlements, to a maximum of 33%. Lerners funds the disbursements, including expert reports. In most cases we arrange insurance that covers those disbursements if the claim is unsuccessful. Your contingency fee agreement sets out how disbursements are handled in your case, and we go through it with you before you sign.
Questions we are asked
The accident was partly my fault. Do I still have a claim?
Usually yes. Ontario apportions fault, so being partly responsible reduces what you recover rather than removing it. And accident benefits are available regardless of fault.
My injuries seemed minor at first. Is it too late?
Not necessarily. Soft tissue injuries, concussion and chronic pain frequently take weeks to declare themselves. What matters is that the collision is documented in your medical records.
The other driver had no insurance. What happens?
You may still claim, either through your own policy’s uninsured coverage or through the Motor Vehicle Accident Claims Fund. Shorter notice periods can apply.
Should I give the insurer a statement?
Speak to a lawyer first. Anything you say becomes part of the file, and the consultation costs nothing.
Speak to a lawyer
If you have been injured in a collision in Whitby, Oshawa, Ajax, Pickering, Clarington or Bowmanville, the consultation is free and carries no obligation.
Call 905-409-2438. Home and hospital appointments available.
Further reading: accident benefits, injured by an uninsured or unidentified driver, injured passengers, who is at fault, when the insurer wants a statement, and personal injury in Whitby.
Speak to a lawyer about a car accident claim
Initial consultations are free. Our fee schedule is published in full, by stage of the case, on our Fair Fees page. Call 905-409-2438, send a text, message us on WhatsApp, or use the contact form.
Steven Polak is licensed as a lawyer in Ontario and practises with Lerners LLP at 123 Athol Street, Whitby.
Also on this site
- Ontario accident benefits: what your own insurer pays
- Ontario Car Accident? Who is at fault?
- Everything You Need to Know About Hit and Run Accident in Ontario
- When should you report car accidents to police or the collision center?
- Car insurance wants your accident statement – what should you say?
- Do I have to see the car insurance company doctor if I was injured?
- Who pays for treatment after a car accident injury in Ontario?
- What to do if you are injured as a passenger
- The Minor Injury Guideline, and the $3,500 cap
- Fair Fees: what we charge, set out by stage of the case
- Our Difference
- Where we work in Durham Region
The statutory deductible that reduces pain and suffering awards applies to car accident claims in exactly the same way. We explain the mechanism and the current figures in what a claim is worth in Ontario, and the deductible nobody mentions.