Toronto Injury Lawyer Blog
I guess I’m what you would call an industry insider when it comes to car accident cases.
I’m an industry insider because I have a lot of experience seeing and litigating personal injury cases arising from motor vehicle accidents (cars, SUVs, bikes, motorcycles, pedestrian collision knockdown cases etc.).
How the law works when it comes to personal injury cases is normal for a lawyer like me. But not so normal for a person who doesn’t know how the law works, or who has no experience with car accident or personal injury cases.
One of the things I share with my clients, and with prospective clients is that the law surrounding personal injury cases involving a motor vehicle is very odd; and very unfair. Coming to terms with these strange and one sided laws is difficult for most people. But, there is little a person can do to change the laws, other than lobby for government for change.
The reaction I get from people when I tell them how the law works is almost always the same. Paraphrased common reactions to these laws include:
- That’s really messed up
- Why did they they do that?
- WTF?!?!
- How can they get away with that?
- This seems really unfair
- This is criminal
- Why am I getting screwed (again)
- But I didn’t do anything wrong, so why am I being punished?
- Will this effect my car insurance premiums?
What sort of circumstances prompt these types of reactions for car accident cases in Ontario?
Regardless of Fault, your own car insurance company has to get involved
Ontario has a no fault system of accident benefit claims following a car accident. This means that regardless of whose at fault for the car accident, the accident victim’s own insurance company is the first payor of benefits. This means that the Defendant could have been drunk, high, on a cell phone, and run a stop sign. It doesn’t matter how outrageous the conduct was of the other driver who caused the car accident. Your own car insurance company is the first insurer to respond. This means that you have to make the accident benefit claim by calling your own car insurance company. Your own insurance company will pay for reasonable and necessary attendant care costs, medical and rehabilitative benefits, a non-earner benefit ($185/week) or an income replacement benefit (up to $400/week on a standard automobile policy).
Most people are dumbfounded when they hear this because it defies all logic that your own car insurance company will need to respond to the accident benefit claim given that another driver was entirely responsible for the car accident. But, that’s just how our system works in Ontario.
The At Fault Defendant has more protections than the Innocent Plaintiff who did nothing wrong other than unlucky having been in the wrong place at the wrong time
The amount of protections which are afforded to an at fault driver have always made me cringe and make no sense.
It starts right for the get go. The police will prepare an accident report (that’s if, and only if they investigate the car accident).
The police may, or may not, provide the Plaintiff with a copy of the accident report (or a summary).
The police report, along with any information obtained from the police department will be heavily redacted. The address, and any other identifying information of the at fault driver will likely be redacted. Sometimes, even their complete name and/or insurance information will be redacted as well.
If the Plaintiff does not get the name, address, phone number, and insurance information of the other party at the accident scene, don’t count on that information to be available in plain sight on the accident report.
The next protection which a Defendant has the benefit of are the laws themselves in Ontario. Only in car accident cases is there a deductible for pain and suffering claims. That deductible as of the time of preparing this entry of the Toronto Injury Lawyer Blog sits at $47,913.01 for general damages claims under $159,708.71. This means that the Defendant receives a secret credit of $47,913.01 on ANY claim worth under $159,708.71. It’s like the at fault Defendant gets a discount code valued at $47,913.01 for having caused a car accident and for having caused another person damages for no reason at all! It makes no sense as to why a Defendant would have this sort of protection when they were entirely at fault for a serious car accident.
There is another head scratching protection which the Defendant gets stacked on the deductible we discussed above.
This protection is called the threshold.
In order for a Plaintiff to get compensation at trial (win), s/he must established that their damages are both:
- serious
- and a permanent impairment of an important bodily function
If a Judge deems that the injuries are neither serious, nor permanent; then the Plaintiff gets ZERO; regardless of fault!
This is yet another insane protection which is being afforded to an a fault Defendant driver. It makes you scratch your head and ask who it is we are really protecting here. The innocent accident victim or the at fault defendant? The at fault Defendant has all of the legal protections and advantages at trial given how our laws are skewed in favour of the party which caused the accident to begin with.
The at fault driver gets all of the set offs from your collateral benefits
Any money the Plaintiff gets as a result of his/her injuries will likely get set off to the credit of the at fault driver.
Did the Plaintiff receive any income replacement benefits?
Did the Plaintiff receive any CPP Disability Benefits?
Did the Plaintiff receive any Short Term or Long Term Disability Benefits?
Did the Plaintiff receive any attendant care, med/rehab or other health care benefits?
Any dollar received by the Plaintiff related to the accident, will be credited to in favour of the Defendant at fault driver. For every dollar received by the Plaintiff, this represents one less dollar than the at fault Defendant would otherwise have to pay to the Plaintiff. It’s another example of a protection afforded to the at fault party. The at fault party caused the accident in the first place, yet they are afforded protections in the form of set offs which minimize their exposure on the claim which they themselves caused.
