In Ontario, we have a two-tier system in place for the recovery of damages resulting from a motor vehicle accident. First, the injured party’s Statutory Accident Benefits (SABS) with their own insurance carrier provides a minimal level of protection for income loss and medical expenses in the event of a car accident, regardless of fault. The SABS are commonly referred to as “no-fault” benefits. Second, the injured party may be able to commence a tort claim against the at-fault party or parties on the basis of negligence above and beyond the losses compensated by SABS for financial and non-financial losses.
A tort claim brought against an at-fault driver may include damages for present and future health care expenses not covered by OHIP or SABS, additional income losses, out-of-pocket financial losses arising from the accident, and non-monetary damages for pain and suffering and loss of enjoyment of life.
However, not every motor vehicle accident victim will have an automatic right to commence a tort claim against the at-fault party. It’s important to consult with a lawyer as soon as possible to understand your rights. The ability to sue the at-fault party for negligence has been increasingly limited in Ontario as a result of the no-fault benefits an injured party is able to receive under their SABS. This scheme in Ontario provides for a balancing of rights, such that the accident victim loses the right to sue unless coming within the statutory exemptions, but receives an automatic entitlement to put forward a claim for SABS from his or her own insurer. In short, the car insurance system in Ontario is intended to limit tort actions to more serious claims and weed out the minor ones.
In determining whether a claim is serious enough to commence a tort action the injured party has the burden of proving that the at-fault party negligently caused the accident and that the injuries resulting from the accident are permanent and serious. This requires gathering sufficient evidence to prove the claim. For instance, acquiring this evidence might involve hiring investigators, experts in motor vehicle collision forensics and obtaining specialized reports from health-care professionals. If you are found to be partly responsible for the accident, the portion that is determined to be your fault will be deducted from your claim.
To add further requirements to the commencement of a tort claim, there is a limitation period in Ontario that requires the injured party advance their claim against the at-fault party within 2 years of the date of the accident. Failure to abide with this limitation period will result in the Plaintiff losing their right to potential damages.
Overall, commencing a tort claim after a motor vehicle accident can be a lengthy and grueling process, sometimes taking years to finalize as a result of documentary and oral discoveries, mediations and potentially proceeding to trial. If you are injured in a motor vehicle accident you should immediately consult with a tort claims lawyer. Our firm has experienced tort claims lawyers who can assess your case and determine whether you are entitled to sue the at-fault party in negligence, while determining the most efficient way to maximize your recovery.
For more information, visit our accident lawyer section. If you have any questions, book a free consultation or call 1-855-446-7765 for immediate assistance.
Disclaimer: The content of this article is a general guideline made available for educational purposes only and is not intended to be used as legal advice for the reader's specific situation nor in general. By reading our blog and website content, the reader acknowledges the above and understands there is no lawyer-client relationship created between you and Himelfarb Proszanski through this content. To get specific legal advice, we encourage you to book a free consultation with one of our lawyers to clarify the legal aspects of your situation.