Winning a car accident case in Ontario is difficult.
It’s not enough to have been involved in a car accident, and that accident is not your fault.
A Plaintiff also has to establish injuries/damages. The Plaintiff must also establish that his/her damages are related to the subject car accident. This is called causation.
At the end of the day, these are called personal injury cases for a reason. There must be an injury, otherwise there will be no compensation.
What makes things particularly difficult in Ontario, is that regardless of fault, the injuries are subject to two giant legal hurdles meant to defeat the Plaintiff’s case and limits their recovery.
The first hurdle is the threshold. Your injuries need to defined as a serious and permanent impairment of an important bodily function. If the injuries are not permanent, then you get zero. If the injuries are not deemed serious, then you get zero. If the injury just lasted 8 months, and then you made a full or close to full recovery, the you get zero.
All of this seems unfair; and I agree with you if you feel this way.
The second hurdle is the deductible. The insurer is entitled to a secret credit on all damages for pain and suffering. The first $38,818.97 of your award vanishes! It’s credited directly to the insurer. Is that fair? No it’s not, but this is the laws that personal injury lawyers have to work with for car accident cases in Ontario.
What’s even more disturbing is that if it’s a jury trial, your personal injury lawyer cannot mention the concept of the threshold or deductible to the jury. If your personal injury lawyer mentions these concepts, the defendant insurer will likely move for a mistrial and seek their legal costs.
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