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Insurance companies have greater rights than individuals in personal injury cases (Ontario)

Car accident cases in Ontario should be simple.

The premise of one car, hitting another car by mistake or negligence; and thereby causing damages/injuries to another party ought to be basic tort law.

Unfortunately in Ontario, this couldn’t be further from the truth. The Ontario Government, at the behest of large insurers has created a system whereby the rights of people are not equal to the rights of large insurance companies. This system has become very complicated.

The law has been crafted in such a way as to minimize the exposure/risk for insurers to boost their profits, at the expense of everyday people like you and me.

I have never met an individual unaffiliated with car insurance industry (doctor, therapist, adjuster, lobbyist, lawyer, insurance company employee/agent) who has lobbied for changes to accident benefits or the Insurance Act. Yet, major changes to accident benefits and the Insurance Act happen on a near annual basis.

The election issue of lowering car insurance premiums was admitted by Premier Wynne to be a “stretch goal“. But reforms to the accident benefit system, and how tort claims proceed through the Courts was not a election issue. Yet these items are constantly being tinkered with at the expense of innocent accident victims to bolster insurer profits.

Here are a few head scratchers our clients and lawyers struggle with on a daily basis:

  • If you break your leg in a slip and fall accident, your damages are not subject to any threshold or deductible. But, if you break your leg in a car accident, those damages are subject to a $37,920 deductible, along with a statutory threshold requiring that the injuries be found by a Judge to be both “serious and permanent“. If the Judge finds that the injuries at not “serious and permanent“, then your claim fails.  Why should the exact same injuries be treated differently, or valued differently on account of the cause of the accident? Why are car insurers getting a discount on a broken leg, but property insurers aren’t? Why is a person who broke their leg in a car accident being penalized when a person who broke their leg in a slip and fall not subject to the same penalty?
  • The $37,920 deductible and the statutory threshold serves to protect insurers from claims. There are no such protections in any other areas of civil litigation. Why should insurers have more rights than people, and more rights than other entities in other areas of the law? You don’t ever hear of a deductible or threshold when suing a realtor, plummer, dentist, architect, etc. Yet, insurers are afforded these protections.GoldFingerBanner
  • Insurance companies are multi national, multi billion dollar entities with unlimited financial resources at their disposal to fight claims. People are people, and unless you’re a multi millionaire, chances are you won’t have the financial might to combat an insurer’s litigation war chest.
  • Insurers can pay as much money as they would like to their lawyers and experts to fight claims. There are no caps on how much an insurer can pay their lawyers. The budget is set as high as the insurance company wants it to be. The claims costs of insurers fighting claims is not scrutinized or contested. It simply is what it is, and those litigation costs get paid.
  • This brings us to the concept of contingency fees. A contingency fee agreement between a Plaintiff and his/her personal injury lawyer is meant to even the playing field. Yet contingency fees are under scrutiny for being too high. It is not a government’s or law society’s role to deem how much people pay for services. If someone wants a better rate, people are free to shop around. Accountants, Dentists, Architects, Plumbers, Hair Dressers, Engineers all set their own rates. These rates are dictated based on what the market/consumers accept. Dictating to personal injury lawyers (but not other lawyers or professions) how much they can, or cannot charge is contrary to free market principals. Dictating to personal injury lawyers what their contingency rate is, yet not imposing the same restriction on an insurer in terms of how much they can spend to defend a claim is hypocritical and creates another legal imbalance which is impossible to overcome. This is another example of how an insurer has greater rights than an everyday person.
  • People are barred from suing their own car insurance company for denied accident benefits. This bar is fairly recent (2017). Why should people be deprived of their access to the Court system? Insurance companies are not barred from suing you for their subrogated interest in claims, or from seeking damages through the Courts against another insurer. Why do insurers have greater access to the Courts than everyday people?
  • Individuals should have rights, at least equal to insurance companies in our legal system. Currently, that’s not the case.

Insurance companies have a disproportionate amount of influence over provincial policy when it comes to car insurance. They wish to make it harder to you to file a lawsuit. They wish to make it more difficult for ordinary people to find a personal injury lawyer willing to take on their claim. They wish to make it more difficult for you to recover fair compensation for your injuries. By achieving all of these goals, insurers are able to maximize their profits, limit their expenses and limit your rights.

What our provincial government has done time and time again has been to sacrifice the rights of individual people in order to bolster insurer profits. The notion that a corporation has more rights and greater access to the Courts than an individual is sickening, and is a reflection of how unbalanced the scales of justice have been tilted. Failure to recognize or appreciate this until it happens to you or a loved one will be devastating. Because by that point in time, it will be too late to get the help you need and compensation you deserve. Your claim will be without any meaningful value if things in Ontario continue to deteriorate at this pace.

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