Legate: Personal Injury Lawyers

by Barbara L. Legate

OBIA Newsletter, January, 1998 (Revised July, 05)

What is the car insurance industry’s best-kept secret? There are extensive rights to sue the at-fault driver in Ontario. Unfortunately, many of your patients have been told, and indeed you may believe, that there are very limited rights to sue in Ontario. Further, your patient may be encouraged to believe that his rights are being well-taken care of by the claims examiner handling the accident benefits, so a lawyer is not necessary.

As with many things in life, there is a cost-benefit analysis that needs to be done to decide if this is a situation worth pursuing. What is the likely outcome, and what factors impact upon the decision to proceed, are often questions that you, as the patient’s primary care provider, will heavily influence. No doubt, the stress your patient undergoes as a result of being involved in a lawsuit is something of concern to you, as it should be. 

It is also likely that your patient has hesitated to find out about his rights to sue because he is concerned about the fees that will be charged for consulting with him or her. His resources are limited because he is not working, and the specter of termination of his accident benefits is ever present.

            This article will outlines the rights to sue under Ontario’s ever-changing car insurance laws, and will explain how one can access competent legal advice affordably. 

Collisions occurring on or after November 1, 1996

            Any person who suffers financial losses (lawyers call these pecuniary damages) is entitled to sue for those. You can sue for income losses, past and future, loss of opportunity of advancement, raises, pension benefits, for expenses associated with your care, housekeeping expenses and childcare expense. There may be some deductions made from the amount you recover to ensure you do not get “double recovery” (i.e. – from both the lawsuit and from your statutory accident benefits). Your income recovery is limited to 80% of your net income in the period before trial, and increases to 100% of your gross income following the trial. It is very important for a wage earner to get to trial as quickly as possible because the recovery following trial is much greater than the period before trial.

            Losses that are not financial are subject to a pre-condition or “threshold” requirement for one to be able to recover. It is important to note that this threshold has nothing at all to do with your financial losses. What are these non-financial losses  (lawyers call them non-pecuniary damages)? In the case of the injured person, they are damages awarded for pain, suffering, and loss of enjoyment of life and loss of the amenities of life. In order to sue for non-pecuniary damages, the injured party must have died or sustained a permanent serious disfigurement; or sustained a permanent serious impairment of an important physical, mental or psychological function.

            Once you are able to prove that you have sustained a permanent serious disfigurement or impairment, you will be awarded damages. However, the Court will deduct from the amount awarded the sum of $15,000 off the top if your collision was before October 1, 2003. If your collision was after October 1, 2003 the Court will deduct $30,000 off the top of your pain and suffering damage as a result of the amendments by Bill 198 to the insurance legislation. In other words, a person who is awarded damages of $40,000 by the Court will only be paid $10,000 net if your collision occurred after October 1, 2003. Remember: this deductible and the threshold have nothing to do with your pecuniary or financial losses, and only apply to your non-pecuniary damages.

            Members of the injured person’s family also have the right to sue. They have a claim for all pecuniary or financial losses. Non-pecuniary losses are available if the injured person’s impairment meets the threshold. In the case of family members, their award for non-pecuniary loss is reduced by $7,500.00 if your collision occurred before October 1, 2003. If your collision occurred after October 1, 2003 the Bill 198 amendment increased this deduction to $15,000 from the non-pecuniary loss of a family member.

            The “threshold” requirement of proving that you have suffered a permanent serious disfigurement or impairment also applies to claims that you make for the recovery of damages for health care expenses if your collision occurred after October 1, 2003. If your collision occurred before October 1, 2003 then you will only be permitted to recover for health care expenses if your injuries fall within the definition of “catastrophic” impairment.

It is beyond the scope of this paper to discuss the technical criteria required to prove that your injuries are either catastrophic or that they have resulted in a permanent serious disfigurement or impairment and you should consult an experienced lawyer to discuss whether your injuries are likely to meet either of these requirements for claiming damages for pain and suffering or health care expenses.

THESE LIMITS ON RECOVERY AND DEDUCTIONS ONLY APPLY TO AUTO-RELATED DEFENDANTS. THERE MAY BE OTHER PERSONS RESPONISBLE FOR YOUR INJURIES.

            Take the example of a crash involving a drunk driver, who was out at the tavern before the crash. The tavern can be sued and, depending on the extent of the tavern’s proportion of liability, you may be able to recover more than 80% of your net income and you may also recover all or part of the applicable deductible with respect to your damages for pain and suffering. There are potentially many defendants who fit into this category:

• Road and highway authorities for badly designed roads, pot holes, trees covering signs, etc;

• Trains

• Owners of animals on the roads

• Tavern owners and social hosts

• Employers of incompetent drivers

• Mechanics who conduct faulty repairs leading to an accident

• Auto manufacturers for defective brakes, seat belts, firewalls etc.

And the list could go on. Some of these defendants must be sued with in very short time limits, so you must act quickly to learn about your rights.

Collisions between January 1, 1994 and October 31st, 1996

            During this period you will find the most limited right to sue. Only actions for non-pecuniary losses, described above, are allowed. They are subject to a threshold and a deductible. The deductible is $10,000 for the injured person and $5,000 for a family member. The threshold is a bit different than the one described above. It does not require one to demonstrate a permanent injury. Therefore, the courts will permit a lawsuit if the person injured suffers a serious impairment for a limited period of time.

Once again, it is important to note that the limitation does not apply to other, non-auto defendants, as outlined above.

Collisions between June 1990 and December 31st, 1993

            People injured during this period of time are unfortunately at most risk of having been misled, however well intended, about their rights to sue. The changes to the law were very novel, and believed by many to limit lawsuits to only the very seriously injured. In fact, three years and a few months after the law was passed, our Court of Appeal gave guidance to us about who has the right to sue. It turns out that most people who have suffered disruption in their employment or career path, or a substantial interference with their usual life, will have the right to sue for physical injuries. This law does not permit actions for mental or psychological injury (however even that is somewhat eroded by the Courts’ interpretations).

            Once the injured person meets the threshold, there are full rights to sue for everything. There are no deductibles. There are limits on “double recovery”. The limits in this period, once again, do not apply to non-auto defendants.

How can I find out if I have the right to sue?

            You must speak to a lawyer with expertise and knowledge in the area of automobile insurance law. Most who are knowledgeable will meet with you for an initial consultation at no charge. Generally, you and the lawyer will discuss an outline of the case, your damages in a very preliminary way, and how the law relates to your case at that initial meeting. Experienced lawyers will explain to you right then and there how your case will be paid for.  The people that other personal injury lawyers and I represent are often out of work and on limited incomes. Each lawyer will have her own way of dealing with costs, retainers and bills. He will be able in most cases to work out an arrangement that is satisfactory to both of you should you decide to go ahead.

            You can find a lawyer through many sources. You may wish to call OBIA for a list of names. You can also call the Ontario Trial Lawyers Association for the name of a lawyer near you who does not represent insurance companies. A recommendation from friends or therapists and doctors who work in the system or are familiar with it is always a good place to start.

            Your right to sue is an important one. In many cases, the damages awarded in a lawsuit can make the difference between life lived with dignity and a life lived in discomfort. That first call to a lawyer is a risk-free way to start the process and begin learning about your rights from someone who is on your side.