JS Law | MOTOR VEHICLE ACCIDENTS

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MOTOR VEHICLE ACCIDENTS

THE LAW

Motor Vehicle Accidents

In Ontario, there are two aspects to motor vehicle accident claims. The first component of your claim is the accident benefit claim. The second component is your claim against the owner and driver of the vehicle that caused the accident.

Accident Benefits Claim

In a motor vehicle accident in Ontario, you are required to apply for accident benefits. These benefits are listed in a regulation called the Statutory Accident Benefit Schedule. These benefits are paid by your insurance company, if you have automobile insurance. If you do not have automobile insurance, then you would claim against the insurer of the vehicle you are in at the time of the accident or the insurer of the other vehicle involved in the accident. Your insurance company is required, by law, to provide you with benefits to assist you in your recovery. There are a number of benefits you could be entitled to claim from your insurer including:

Income Replacement Benefits
Non-Earner Benefits
Caregiver Benefits
Medical, Rehabilitation and Attendant Care Benefits
Death and Funeral Benefits

You may also be entitled to claim expenses such as:

Lost Educational Benefits
Expenses of Visitors
Housekeeping and Home Maintenance
Damage to Clothing, Glasses, Hearing Aids, etc.

Tort Claim

In addition to your accident benefit claim, you may have a right to sue the driver that injured you. With respect to accidents after October 1, 2003, in order to recover damages for non-pecuniary damages or “pain and suffering”, you must sustain a permanent serious disfigurement; or permanent serious impairment of an important physical, mental or psychological function. A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

The impairment must,

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment, ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment, ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, iii. be necessary for the person to provide for his or her own care or well-being, or iv. be important to the usual activities of daily living, considering the person’s age.

For the impairment to be permanent, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, ii. continue to meet the criteria in paragraph 1, and iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. In addition to the foregoing, there is a statutory deductible of at least $35,000 and $15,000 for Family Law Act claimants. However, there is no such deductible in the event your non-pecuniary damages exceed $100,000. You may claim a loss of income or a loss of earning capacity from bodily injury or death. You may not claim for the loss of income from the first 7 days following the accident and you may only claim up to 80% of your net income up to the date of trial. After trial you may claim 100% of your gross loss of income. As well, the damages to which you are entitled may be reduced by any collateral income benefits you receive. Finally, you may claim out of pocket expenses such as housekeeping and handy man costs against the at fault party. However, such damages to which you are entitled may be reduced by collateral benefits received. According to the Limitations Act, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Limitation Period

According to the Limitations Act, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew. (i) that the injury, loss or damage had occurred (ii) that the injury, loss or damage was caused by or contributed to by an act or omission. (iii) that the act or omission was that of the person against whom the claim is made. (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause.