Toronto Injury Lawyer Blog
Car insurance, and making a claim after a car accident in Ontario should be simple and straight forward.
But, as a personal injury lawyer with two decades of experience in the field, I can tell you that it’s not. Far from it! In fact, car insurance and accident benefit claims are complex and defy common sense.
Here are a few items that our lawyers at Goldfinger Injury Lawyers along with our clients have always found rather strange when it comes to car accident claims in Ontario.
Item #1 Regardless of fault, the first insurer to respond to the claim is your own car insurance company. Ontario has a “no fault” system of accident benefits. This means that your own car insurer, regardless of fault, is the first insurer to make a payment of the claim. The at fault driver could have been drunk, high on drugs, on his cell phone having run a red light. It doesn’t matter. Your own car insurer, regardless of fault, is the first insurer to pay. This is what “no fault” is all about. How the accident happened and the degree of liability for the at fault driver is not even a thought when it comes to no fault accident benefits which defies common logic when non lawyers think about car accident cases.
Item #2 If you have collateral benefits, those benefits pay first before your own car insurance has to pay! Many employees have benefits through work. These benefits may be through an insurer like Greenshield, BlueCross, Manulife, Great West Life, Canada Life, SunLife etc. If you need physiotherapy or massage following a car accident, the law requires that you first make a claim through your collateral insurer. The collateral insurer (and not the car insurer) becomes the first payor of benefits! Just like example #1 above, this defies common logic when non lawyers think about car accident cases. It makes no sense that a collateral benefit provide has to pay benefits for injuries from a car accident when there is available for insurance which is supposed to insure that very accident. But, this is how the law works. These nuances of the Insurance Act can be difficult for clients to grasp because they don’t make much sense. But this is how the law has been written.
Item #3 Benefits are only paid if they are deemed the be both “reasonable and necessary” by your car insurer. Let’s say that your doctor has prescribed you physiotherapy for a back injury following a car accident. Your local physiotherapy clinic completes the OCF-18 Treatment Plan to get the physiotherapy sessions approved. The insurer then denies the treatment because they have the interim power to act as Judge, Jury and Executioner deeming the treatment NOT to be reasonable or necessary. The injured accident victim then has a few options. They can opt to withdraw the request for treatment. They can do nothing at all. They can pay for the treatment out of their own pocket. Or they can apply to the License Appeals Tribunal to have an adjudicator determine whether or not the treatment is reasonable and necessary. Applying to the License Appeals Tribunal costs $106. It can take anywhere from 1+ years to have the case at the License Appeal Tribunal heard and there is no guarantee of success. That means that an injured accident victim, who really needs physiotherapy treatment but cannot afford to pay for it out of their own pocket will have to wait over a year to have their case heard in order to determine whether or not the insurer has to pay for the treatment or not. Just because the case gets heard in around a year, does not mean that a decision from the adjudicator will be released that same day. It can take weeks (or longer) for decisions to get delivered. And this does not take into consideration the right of the losing party to appeal the decision. This would further delay the outcome of the case and further delay the innocent accident victim getting physiotherapy. Even more upsetting is the fact that what often happens in these LAT disputes is that the hourly rates of the lawyers far exceed the value of the items in dispute. Insurers will spend tens of thousands of dollars on legal fees in order to save them hundreds (or less) on a treatment plan.
Item #4 The secret deductible and the secret threshold for car accident cases in Ontario. We can all agree that transparency, particularly in law is a good thing. Except when it comes to jury trials in car accident cases in Ontario. In jury cases for car accident cases, jurors are deliberately kept in the dark about the topics of the deductible and the threshold for quantifying damages for a car accident case. This means that the jury doesn’t get to see or appreciate the whole picture and the true will of the jury is never satisfied. Car insurers get a present at trial. They are entitled to a secret credit of $46,053.20 any any pain and suffering award below $153,509.39. Lawyers aren’t allowed to speak of this secret at trial. That’s weird. That means that if a jury wished to award a Plaintiff $100,000 for his/her pain and suffering, they would need to award that person $146,053.20 in order to get to that amount after the $46,053.20 secret deductible is applied. The secret credit gets applied irrespective of the element of any fault on behalf of the Defendant driver. That means that every drunk driver on the road is entitled to a $46,053.20 credit for their bad driving habits. This is completely insane, but this is how car accident law in Ontario works. The law is designed in such a way as to afford greater protections to at fault motorists and to the deep pocketed insurance companies who represent these miscreants rather than to innocent accident victims who were simply in the wrong place at the wrong time. None of this is fair. But who said that the law had to be fair? When it comes to car accident law in Ontario, the laws are stacked against innocent accident victims in favour of large insurers.
