Click a question below to quickly jump to the answer.
- I was in an motor vehicle accident; do I have a personal injury case?
- If I don’t meet the threshold, does that mean I have no case at all?
- If I was in a motor vehicle accident but I was not wearing a seatbelt do I still have a case?
- What happens if I need accident benefits and my own insurance company won’t pay them?
- What happens if I’m injured in a car accident while in the Course of Employment?
- Will I need to bring anything to our first meeting with you?
I was in an motor vehicle accident; do I have a personal injury case?
This is the most frequent question that people ask me.
The real answer to this question is, “it depends.” No one really likes this answer but it is the truth. Whether or not you have a case is dependant upon the facts of your circumstances and those facts are as varied as life itself. Below I have set out some basic information to help you decide whether your circumstances warrant further investigation.
If you were in a motor vehicle accident, you want to know whether you have a “tort case.” The word “tort” simply means “wrong” and we often refer to the at fault driver in a motor vehicle accident as a “tortfeasor” or wrongdoer.
There are essentially two parts to a personal injury tort case. The first part is establishing that the accident was someone else’s fault. If the accident was your fault, you are not entitled to be compensated to the extent of your own fault. So, if the accident was one hundred per cent your fault, you will not be entitled to any compensation in a tort case.
After you establish that the accident was someone else’s fault, the second aspect of a lawsuit is what we refer to as “damages” which basically amounts to a sum of money. There are different kinds of damage or pots of money to be claimed such as economic losses, pain and suffering, future care costs and housekeeping and home maintenance losses. What you are entitled to and how much you are entitled to depend on the severity of your injuries.
You may have received letters from the insurance company of the at fault driver telling you that you may be entitled to compensation if your injuries pierce the “threshold.”
The word “threshold” refers to a legal test that you must meet in order to make a claim for pain and suffering and for future health care costs (non-OHIP funded healthcare costs).
In Ontario, if as a result of the use or operation of an automobile, the injured person has died or sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function he/she may make a claim for pain and suffering and health care costs. In Ontario, we also have regulations which actually tell us what permanent, serious and important mean. We also look to the judge made law to help guide our opinion.
Without a targeted discussion it can be difficult to know whether someone’s injuries will pierce the threshold which is why I would prefer to talk to you directly either by telephone or in person for free.
Unless the injuries are obvious, it can take some time in order to assess whether a person has pierced the threshold. This is because each person responds to treatment differently. Some people are quick healers. Some people respond to treatment quickly and the interventions show real success at an early stage. Some people never get better. Further, some people show real promise at the beginning of treatment but later plateau and do not recover any further than that. Everybody is unique and thus, often expert medical people are needed to help with this assessment.
This is why the answer to whether or not you have a case is often, “it depends.”
Please see the “Do I have a Case” questionnaire which is a quick survey of questions that you can answer in order to ascertain whether further investigation is warranted into whether you have claim. The questionnaire is not to be construed as legal advice nor is it a replacement for proper legal advice. It is merely a tool to help provide some basic answers quickly so that you can make some decisions regarding your available options.
If I don’t meet the threshold, does that mean I have no case at all?
Not necessarily. If your injuries are such that they do not pierce the threshold you may still have a case if you have sustained economic losses and housekeeping losses as a result of the accident. You do not need to meet the threshold for the purposes of economic losses or for a housekeeping claim and home maintenance claim however, you will need to prove that those losses are related to the accident on the balance of probabilities; that is, you will have to show that it is more likely than not, that your injuries and the losses that flow from them are related to the accident.
What if the accident was my fault but I was really hurt, do I have a case then?
Possibly. You may have an accident benefits case against your own insurance company if it refuses to pay you the benefits you need and are entitled to under the policy.
In Ontario, we have what is called, “no-fault” legislation. This means that whether the accident was your fault or not, your own insurance company is responsible to pay you certain benefits under your own auto policy right away. There are many different benefits available under the accident benefits portion of your auto policy such as an income replacement benefit and medical and rehabilitation benefits for example.
These benefits are in place to protect consumers but often end up being the hardest fought fights between insured people and their insurance company.
As of September 1, 2010, this area of law underwent significant changes. The government promoted the changes as more choice for the consumer which ultimately meant more expense and less coverage. This is why it is very important that you contact a personal injury lawyer so that you may know what benefits are available to you and what your options are if benefits are denied. I am very familiar with these problems. I can help.
If I was in a motor vehicle accident but I was not wearing a seatbelt do I still have a case?
Yes. The mere fact that you were not wearing a seatbelt does not in and of itself extinguish a claim. You will likely be held to have contributed to your injuries in some way to a certain percentage. For example, if it is determined that you were negligent by not wearing a seatbelt to the extent of 15%, then your damages award will be reduced by 15%.
What happens if I need accident benefits and my own insurance company won’t pay them?
When a person’s own insurance company starts to deny him/her benefits, a personal injury lawyer’s assistance is critical.
There is a government body called the Financial Services Commission of Ontario (FSCO) that governs all matters of insurance in this province including accidents benefits.
If your own insurer refuses to pay for a benefit that you feel entitled to and is supported by the medical evidence, you can make an application for mediation to FSCO. At this point, the FSCO will appoint a mediator and then a mediation is set up usually by teleconference (but not always) to try to resolve the issues between the parties. I bring many applications for mediations on a regular basis on behalf of clients and have successfully secured many many benefits for people.
If the mediation fails to resolve the issues between you and your insurance company then you have one of three choices to make. You can decide not to fight it and do nothing, you can bring an application for arbitration through the FSCO process or you can bring a claim in the Superior Court of Ontario.
Which path you should take is made on a case by case basis. You will need legal representation to get through this process. I can help.
What happens if I’m injured in a car accident while in the Course of Employment?
The answer to this question is somewhat complicated. The issue usually becomes one of determining whether the injured person has the right to sue the at-fault party.
Please refer to our article, “Car Accident in the Course of Employment: WSIB or Lawsuit?” in the Articles for Non-Lawyers section of this website for a complete answer.
Will I need to bring anything to our first meeting with you?
Yes. You will need to bring identification with you such as your OHIP card or Driver’s license. You will also need your social insurance number if you have one. You will also need to bring your certificate of auto insurance. Specifically, you need to know when your policy renews and whether you have any enhanced coverage. This information will reveal whether the some of the old rules regarding accident benefits apply to your situation or whether you will be entirely dealing with all the new rules.
Also, bring any documentation you have relating to the accident. These items may include the Police Report/Collision report, letters and/or forms from your insurance company, letters from any insurance company involved in the accident, any medical reports that were completed on behalf of your insurance company, the name of your family doctor, name of any specialists, and information with respect to any where you received treatment and/or name of the pharmacy where you get your medication. If we open a file for you we will need to obtain this information so the more information you can give us, the more quickly we can process your matter.