Motor Vehicle Accident (MVA): Steps to Compensation

Before discussing the legal process of receiving compensation for your losses, there are critical steps that you should follow directly after your MVA.

  1. If anybody was injured due to the accident, seek medical attention immediately
  2. Police need to be called to the scene of the accident if it involved personal injury, or property damage exceeding $2000
  3. Accidents which did not result in any immediate injuries, or the damages are estimated as less than $2000, should be reported to a Collision Reporting Centre within 24 hours
  4. It greatly improves the chances for a successful future claim if you collect, and preserve, evidence at the scene of the MVA. These include pictures of the accident, witness testimony, the accident report, and medical records.
  5. It is highly recommended that you hire a personal injury lawyer to represent you as soon as possible. The legal system can be complicated to navigate alone, and a trained Barrister and Solicitor can guide you to the resolution you seek.

 

Steps Following your MVA:

There are two separate claims that are made following an MVA.

The Accident Benefit Claim. This is the first claim you make, and it is made against your own insurance company.  In Ontario we have no-fault insurance. What this means is that regardless of who is at fault for the accident, the insurance company of each driver handles their respective claims. In theory this is why insurance is mandatory, and you pay hefty monthly insurance fees. This claim however does not cover your loss of competitive advantage in the workplace due to your injuries, loss of guidance (i.e., death of a care giver), increased home maintenance costs, or pain and suffering.

Accident Benefit Claim Coverage:

  • Income replacement (up to $400 a week, if you were employed at the time of the MVA, or $185 per week in non-earner benefits)
  • Medical rehabilitation not covered under the Ontario Health Insurance Plan (this includes physiotherapy, massage treatments, counseling, as well as chiropractic treatments)
  • Attendant care benefits (this would be an individual, or individuals, that you hire to help you take care of yourself, and attend to your home)
  • Any out-of-pocket expenses which you incurred directly due to the MVA (these include assistive devices to help you with your injuries, costs of medication, hospital parking, and transportation both to and from all medical appointments if the distance is greater than 50km)
  • Death benefits (if someone has died due to the MVA, then the benefits are passed on to the living spouse and/or dependents, as well as funeral expenses)

 

The Tort Claim. This is your second claim and it is made against the negligent driver. This is the more “traditional” lawsuit that most people are familiar with. The goal of this claim is to have the negligent driver’s insurance company recognize that your action did not cause the accident, your damages are real, and to pay for the damages accordingly.

This is the claim where you are able to include pain and suffering, home maintenance costs, loss of income, housekeeping costs, future care costs, as well as any other losses which can be quantified, and were not covered by the Accident Benefits claim.

Factors Affecting Your Tort Claim: (i.e. the chances of receiving fair compensation)

  1. The compensation you receive for pain and suffering (which is known as non-pecuniary damages award) is subjected to a $38,818.97 deductible. This means that if a Judge or Jury awards you $50,000.00 at trial, you would only receive $11,181.03 (Minus costs and fees). In that same context, if you are awarded less than the deductible, you receive nothing! The deductible is only waived if your award exceeds $129,395.49. Furthermore, you are not allowed to mention the deductible to the Jury, or a mistrial will likely occur.
  2. Claims by a relative for the loss of guidance, care, and companionship have a $19,409.49 deductible. The deductible is only waived if your award exceeds $64,697.21.
  3. These deductibles are subject to inflation, and as such, are increased every year!
  4. In addition to these deductibles, there is also a threshold question for the Tort claim. To pass the threshold the Judge/Jury must decide on whether the injuries you suffered were both serious and permanent. If they answer in the negative then you are unable to recover any compensation, regardless of who was at fault. (To break down what this means for your case imagine the following situation. You are stopped at parking spot, and a drunk driver careens out of nowhere and crashes into your car. You break both your legs in this accident; however, you seem to recover in the following 6 months. If the Judge/Jury decide that your injuries are not serious and permanent, then you do not recover any amount in tort!)