Articles Posted in Accident Benefits

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Most people aren’t familiar with how car insurance disputes work until they have to go through the process.

Most would think that if there’s a dispute for benefits, they can sue the insurer which is denying those benefits and then a Judge can decide. That seems simple and straight forward. Unfortunately, simple and straight forward is not the way which car accident cases work in Ontario.

Long ago, accident victims had the right to sue the insurance company which was denying their accident benefits following a car accident. That case could be heard by a Judge, in regular Court. The court date however would only trigger if the parties had attempted and failed a mediation at the Financial Services Commission of Ontario (FSCO). That way, the parties gave it an honest try to see if they could resolve their dispute at mediation, without the need for litigation in Court. This made a lot of sense, and was easy for unsophisticated and inexperienced litigants to understand.

But the rights of accident victims to sue over denied accident benefits following a car accident were stripped from everyone in Ontario. Yes: imagine that. In a democracy, the government took away your right to sue, and access to the Courts.

Instead, innocent accident victims were required to have their disputes heard at the License Appeals Tribunal (LAT). The LAT is not a Court. It’s a tribunal. There are no Judges at the LAT. Instead, there are adjudicators who work there, who may, or may not, have any experience hearing or ruling on car accident cases. The barrier to entry to become an adjudicator at the LAT is much lower than the barrier to entry to become a Judge of the Ontario Superior Court of Justice.

Since the LAT became the ruling body over accident benefit disputes, it’s been an unfriendly place to accident victims (likely by design), and surrounded with controversy. It’s a really strange place.

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When an international student or a visitor to Canada has a serious accident in Ontario, it can get very complicated.

Who will pay for the medical treatment? The hospital visits? The ambulance? The out of pocket expenses? What about the loss of opportunity to pursue their studies, or the wage loss from a part time job?

These are really hard questions, and all depend on the facts of the case, along with the coverage of the injured party.

For starters, people in Canada on Student Visas, or a Visitors Permit won’t have access to the publicly funded OHIP system, the same way that Canadian Resident will. This is why it’s so important for the student or visitor to Canada to make sure that they have proper health care coverage before they come to Canada.

Having bad insurance will end up in a less desirable result. Just because an insurance plan is the cheapest, doesn’t mean that it’s the best. Often, you get what you pay for. Nobody ever expects to be involved in a serious accident, but if one happens, it sure helps to have a responsive and supportive insurer; rather than an insurance company which is the habit of denying claims, or being non-responsive to their insured.

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Personal Injury Lawyers are familiar with hospitals. Visiting the hospital in order to see an innocent accident victim to conduct a consultation and explain to them their rights is part of the job as a personal injury lawyer. As such, personal injury lawyers get to know the ins and outs and routines at many hospitals. We also see some pretty weird stuff at hospital as well. And these weird occurrences are through no fault of the people hospitalized. It just so happens that hospital can be very strange places. How so you might ask?

For starters, there are no barriers to entry at the hospital. Every Canadian has free healthcare. You don’t have to pay, or pass security in order to get inside of a hospital. As such, you might have people wandering the hallways looking for shelter, a warm bed, pills to steal, supplies like sheets or pillows, or people looking to scam patients who are not at their best. As a personal injury lawyer, I’ve had many clients tell me that while they are staying at hospital, they’ve had strangers approach their bed purporting to be a hospital worker asking for their banking information. I can assure you that hospital staff are not asking patients for their banking information. This doesn’t happen. It can however happen that people with ill intentions enter the hospital trying to defraud or steal patients. While all hospital do have some form of security, it’s never enough to monitor an entire hospital. And, by the time that people have found out that they’ve been stolen from, or defrauded, it’s too late. The focus while staying in hospital is rarely about money or security because hospitals should be (and often are) safe spaces. Rather, it’s about health, recovery, and getting home.

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Ontario has a no fault system of accident benefits if you’ve been involved in a car accident.

Understanding the concept of “no fault” is hard to grasp (even for lawyers!).

You would think that if you’re not at fault, then the at fault driver’s insurer should pay for everything.

But, that’s not how things work in Ontario’s no fault system. We have a first party pays system.

What this means is that regardless of fault, your own car insurer is responsible to pay for accident benefits in your car accident case.

This means that the other driver could have been drunk, high, on his/her cell phone, having run a red light; and still your own car insurer is the primary payor for accident benefits.

Even more strange is that if you had collateral benefits at the time of the accident, such as health, disability or anything else through work; those benefits kick in BEFORE the car insurance benefits kick in. Even though your collateral benefits have nothing to do with car insurance, those collateral benefits must be used up before the car insurer has to pay anything. How does that make sense? It’s like a disability insurer telling you that they will not pay any disability benefits until you’ve purchased 3 lottery tickets to see if you win. In the event you win, then they disability insurer does not pay because you’ve been paid lottery winnings. If you loose the lottery, and only once you’ve lost and submitted proof of losing that they will pay. All of these laws defy logic, but this is how Ontario’s archaic system of accident benefits has been designed.

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If you are injured in a motor vehicle accident, regardless of whose fault the accident is; you are entitled to claim an income replacement benefit of up to $400/week. That income replacement benefit can be increased to $800/week if you purchase an optional rider on your car insurance policy.

The income replacement benefit was automatic if you were an income earner, and if you met the disability test. This means that you needed to show that you made money (hard to show cash income) and that you were too disabled from returning to work.

You did not have to purchase any additional benefits, or pay extra on your policy to qualify for the income replacement benefit. It was part of the standard automobile policy in Ontario.

Even if you didn’t own a car, or have a driver’s license, you were still entitled to claim the income replacement benefit if you were hurt or injured in a motor vehicle accident. That meant that innocent pedestrians, cyclists, or simply those who didn’t drive had the same access to income replacement benefits as those who did drive.

Things are changing when it comes to the income replacement benefit.

Ontario Regulation 383/24 was announced in the Ontario Gazette on October 11, 2024. Beginning on July 1, 2026, the income replacement benefit will now be optional:

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It’s golf season.

People use golf carts on golf courses.

People get injured using golf carts.

Sounds really weird when you put that in writing, but they’re all true statements!

People get injured in very strange, and sometime very serious (often catastrophic) ways in the use or operating of golf carts.

Do I have an explanation as to why this happens? I can put out a few theories:

1. Alcohol. Drinking on the golf course is a thing. Alcohol impairs your judgment. This impaired judgment and liquid courage to do things you normally wouldn’t can lead to disaster.

2. Inexperienced golf cart drivers. There is no driving test to operate a golf cart. Anyone can operate one on the course. It’s not like there are police officers on the golf course pulling people over for their erratic driving

3. Driving on terrain not suitable for a golf cart. Golf carts don’t really operate as a traditional off road vehicle with the large grippy tires, roll bars, or reinforced panelling. They tend to be flimsy buggies, meant to transport people and their golf clubs on relatively even terrain.

4. Speed and erratic driving. The top speed of a golf cart isn’t very fast, but it’s just fast enough to cause serious injury.  They aren’t meant for rolling hills, steep drops, or sharp turns at their top speed. Their centre of gravity isn’t the best, and they’re prone to tip over, unlike other off road vehicles which have a wider base and lower centre of gravity. They aren’t bumper cars, or dune buggies, though people tend to operate them as such.

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For those unfamiliar with personal injury law, and more specifically, the law surrounding motor vehicle accidents (car crashes, motorcycle accidents, pedestrian-car accidents, bike-car accidents), the idea of what the law should be and how it works is perceived to be rather straight forward.

Car accident. Innocent accident victim not at fault. They were in the wrong place, and the wrong time and sustained injuries. Those injuries ought to be compensated by the car insurer for the at fault driver. Case closed.

Unfortunately, that’s not the way things work in Ontario.

We have take an easy to understand event (a car accident) and complicated that event tremendously.  The complexities have been created by the government at the behest of the insurance industry in order to keep the number of car accident claims down; and to limit the compensation available to innocent accident victims.

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I’ve had a few interesting conversations over the past few days with some very thoughtful, rational, insightful and logical people. These people are not lawyers. They have no skin in the game when it comes to the field of personal injury law. That means that they are neither lawyers, insurance adjusters, service providers, doctors, or lobbyists. It’s always nice to get someone’s perspective on the law, and how they perceive it works (or doesn’t) from an “outsider“.

For whatever reason, they were thinking about how the law worked in Ontario. And, in particular, how auto insurance claims worked. They were thinking along these lines because recently, a friend or family member had either been involved in a serious car accident, or something bad happened to their car which required that they get the auto insurer involved.

All of their experiences shared some common threads.

For starters, the people didn’t understand why the insurance claims system was so complicated. Why did the system need to be so complex, with so many hard to understand forms? It was like you had to have a law degree or some expertise in personal injury just to get the insurer to approve a benefit. And just because a benefit was deemed approved, does not necessarily mean that the money would be flowing in a timely manner.

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It may be your first time being involved in a serious car accident where you have sustained serious injuries. These are not common events. And because these are not common events, few people know exactly what to after the accident, or how to deal with their car insurer.

The purpose of this edition of the Toronto Injury Lawyer Blog is to provide you with quick tips dealing with your Car Insurance Company after a serious collision.

1.You deal with your own car insurer first. Ontario  has a no fault system of accident benefits for car accident cases. That means that regardless of fault, the first insurer you will deal with is your own insurer. This seems counter intuitive, but this is how the law works. So, the at fault driver could have been drunk driving, high on drugs, texting on his phone, and ran multiple red lights. It does not matter. The first insurer you will deal with is your own insurer regardless of fault. Weird huh!

2. Watch what you say to the insurance adjuster. When you call most insurers, there is a recorded message saying that the call will be recorded for training and customer service. The call is being recorded so that if you put your foot in your mouth, and say something which is helpful to the insurer, but hurtful to your case; it can and will be used against you moving forward. Many claimants put their feet in their mouths and cause more harm than good in these recorded phone calls with their insurance adjusters. It’s much wiser to let an experienced personal injury lawyer handle it.

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Some fact patterns regarding car accident cases can’t be made up. I suppose that you could try; but the reality of what actually happened often exceeds the bounds of your imagination. They are often unthinkable scenarios fit for a law school exam.

To be eligible for accident benefits in Ontario, an injured accident victim must prove the incident meets the definition of an accident under subsection 3(1) of the the Statutory Accident Benefits Schedule. An accident is defined as:

“an incident in which the use or operation of an automobile directly causes an impairment …”

The key words here are “the use or operation of an automobile”. Those words have been defined rather broadly. They are largely fact specific.

If the Plaintiff can establish that the incident arose out of the use or operation of an automobile; then the Plaintiff will be eligible to claim accident benefits. Things like an income replacement benefit; an attendant care benefit; and medical/rehabilitation benefits which are not covered by OHIP. These benefits can really help make ends meet; and can go a long way on the road to recovery following a serious accident. If the accident is deemed as “catastrophic”, these accident benefits will exceed $1,000,000 in value. Being eligible for accident benefits is also important because they will be paid out irrespective of fault. That means where the accident is an “act of G-d”, or some strange fluke; or a single vehicle accident with nobody to sue; then the Plaintiff regardless of fault will be eligible for benefits which is very important.

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