I. BACKGROUND
Ontario’s car insurance system is difficult to understand. A lot of people think that the system is “no-fault”, meaning that you are not allowed to sue if you are injured in an accident. That is not entirely true.
If you are injured in a car accident in Ontario, you are probably entitled to certain “no-fault benefits”, but you may also have the right to sue at-fault parties for your injuries. The right to sue is not unlimited in Ontario.
II. ACCIDENT BENEFITS/NO-FAULT BENEFITS
If you are injured in a car accident in Ontario you may well have the right to claim certain benefits from your own car insurance company. If you were struck by a car while you were a pedestrian, you are more than likely also entitled to claim benefits. If you were a passenger in a car you likely also have the right to claim benefits.
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The scheme providing entitlement to benefits is broad and most people have entitlement under one insurance policy or another. As a last resort, in certain circumstances, resort can be made to the government’s motor vehicle insurance fund.
These benefits can include income replacement benefits, medical and rehabilitation benefits, housekeeping benefits, caregiver benefits, etc.
If the insurance company refuses to pay you benefits that you are entitled to, then there are steps that you can take to dispute the insurance company’s decision. It is important to know that there are time-limits for doing this.
It is also important to know that it is mandatory that you make an application for accident benefits before commencing a lawsuit.
III. LAWSUITS
The car accident regime has become complex and it is often a good idea to consult with a lawyer early in the process to ensure that you are receiving the benefits that you are entitled to, and that you are protecting your future rights and ability to commence a lawsuit if necessary.
Questions may arise early in the process, such as what questions should you answer that the insurer asks you? Is the insurance company allowed to speak to your doctor? Is the insurance company allowed to demand your pre-accident medical records? Do you have to speak to the insurer or adjuster representing the other driver? A knowledgeable lawyer should be able to guide you through these issues and advise you about your entitlement to certain benefits.
It may also be advisable for you to commence a lawsuit. Lawsuits are generally commenced to obtain compensation for things that are not covered by accident benefits (ie: pain and suffering, etc.). There are numerous disclosure obligations and requirements to start a lawsuit. There is also a time-limit for commencing a lawsuit and it is advisable to speak to a lawyer immediately if you are considering a lawsuit.
IV. RESTRICTIONS ON THE ABILITY TO SUE
There are a number of restrictions on an injured person’s ability to sue for injuries and damages from an accident. One restriction is known as the “threshold”. The threshold is a legal test that an injured person has to meet in many cases to be able to claim for some types of losses, such as pain and suffering. If you do not meet the threshold, then, in many cases, you are not entitled to anything for pain and suffering. The threshold does not apply to everything (ie: income losses). To meet the threshold, the test is often, whether or not the injured person sustained a “permanent, serious impairment of an important physical, mental or psychological function”. These words are interpreted by statutes and case-law.
Another restriction on an injured person’s right to sue, is the “deductible”. The deductible is an amount of money that, in many cases, is subtracted from whatever amount your pain and suffering is worth. Under bill 198, the deductible is (as of the date that this article was written) $30,000. So, that means that if your pain and suffering is valued at $50,000, then, if the deductible applied, the amount would be reduced by $30,000, leaving only $20,000. The deductible does not apply to pain and suffering that is assessed at more than $100,000 and there are a number of other exceptions. It is best to consult a lawyer about these issues.
It is advisable to obtain a free consultation so that you understand your rights.