Motor Vehicle Accident Insurance in Ontario

Emily Foreman for The Lawyers Weekly

Ontario's automobile insurance regime is complex. Most people in Ontario do not turn their minds to the details of their automobile insurance policy until they are involved in a motor vehicle accident (MVA). This article is intended to provide a very brief overview of the current automobile insurance regime in Ontario, including the accessing of accident benefits and claims which can be made in a lawsuit by an Ontario personal injury lawyer.

Benefits available and legal options will largely depend on the circumstances of each case; a personal injury lawyer will assess a case and provide the best options.

Ontario's current automobile insurance regime is governed by a combination of regulated accident benefits and negligence or tort law. The provincial government has attempted to permit injured people in Ontario to receive some compensation for their economic losses regardless of who is at fault for an accident. These are known as no-fault benefits or accident benefits.

The Insurance Act governs these no-fault accident benefits, which are available under most automobile insurance policies in Ontario. Standard accident benefits include medical and rehabilitation expenses, attendant care, housekeeping expenses and income replacement benefits.

Insurers in Ontario should also make policy holders aware of their right to purchase "optional benefits", which will entitle injured persons to additional, enhanced benefits if the need arises. Optional benefits are generally most appropriate for higher income earners, and coverage must be in place prior to making a claim.

It is important for injured individuals in Ontario to complete an Application for Accident Benefits and submit it to one's automobile insurer as soon as possible following a collision.

If another party is at fault for a collision in Ontario, those injured may sue the "at fault party" for compensation, which is also known as commencing a "tort action". In a tort action, injured parties often sue for their pain and suffering (non-pecuniary damages), as well as their economic losses (pecuniary damages). In order to recover damages for pain and suffering in Ontario, the injured person must have sustained "a permanent serious impairment of an important physical, mental or psychological function" or "permanent serious disfigurement". A deductible is applied to any award for pain and suffering, and the amount of this deductible will depend on the date of the accident.

Injured individuals in Ontario are entitled to sue for lost wages and other non-health related out of pocket expenses incurred as a result of a motor vehicle collision. Under the Insurance Act, injured persons in Ontario are entitled to 80% of their net after-tax income loss up to the date of trial, and 100% of their gross future income loss following trial. Obviously, if the injured person is able to return to work, post-collision earnings are deducted from his or her wage loss claim.

Spouses and close family member of injured persons in Ontario also have the right to sue in tort for certain losses sustained as a result of a motor vehicle collision. These rights are governed by the Family Law Act. For example, the spouse of an injured party may sue in tort for the "care, guidance and companionship" of the injured person, which they have lost as a result of the collision. A deductible is applied to such awards, and again, the amount of the deductible will depend on the date of the accident.

If an accident is caused by an unidentified, uninsured or underinsured motorist in Ontario, injured persons can usually access coverage through the standard provisions in their own policy.

In both no-fault and tort proceedings, medical evidence will be very important in proving the extent of one's injuries. Individuals injured in a motor vehicle collision often find it difficult to navigate the automobile insurance regime. In many cases, the injured person's ability to pursue a tort action will not be clear at the outset, and it is often prudent to take a "wait and see" approach. That being said, it is usually worthwhile to consult with a lawyer at the outset for an opinion with respect to one's rights and obligations under the law. It is best to do this as soon as possible following a collision, to ensure that notice requirements and limitation periods do not lapse. Most reputable law firms will provide such consultations at no charge to the individual.

Emily Foreman is an attorney with Siskind, Cromarty, Ivey & Dowler LLP in London, Ontario.

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