How to Pursue a Car Accident Claim in Ontario

What should I do after a car accident?

If you are injured as a result of an accident, the greatest concern for an accident victim and their family is to recover from injuries and try to get life back on track. Extensive injuries, such as spinal cord injuries, traumatic brain injury or broken bones, may find the unexpected costs of recovery result in a financial burden.  The victim or their family may wish to take legal action to recover the money required to pay for care, assistive devices and therapy, and other damages an injured person may be legally entitled to recover. Talking with an Ontario personal injury lawyer is the best way to get answers to your questions and to better understand what benefits and awards you or your family may be entitled to.

Making a statement about your car accident claim

Many clients have already given a written or verbal statement to either their own auto insurance company or a defendant auto insurance company by the time they contact a lawyer about pursuing a car accident claim in Ontario. In many cases, the contents of that statement can affect your future lawsuit.

If requested, you will be required to give a statement to the insurance company that you are claiming accident benefits from. It is usually a good idea to have an Ontario injury lawyer present for this. A lawyer can make sure that you only answer questions that are relevant to your claims for accident benefits and that you are not answering questions that could be detrimental to a lawsuit you intend to bring.

Most adjusters taking a statement in a motor vehicle accident case will ask “Tell me how the accident happened” and, in most cases, a lawyer is going to refuse to let you provide the specific details of the car crash. It does not matter who is at fault when you are claiming accident benefits and so your speed, the speed of the other motorist, and your specific actions in the car crash, should not be discussed.

A statement given to the accident benefits insurer is a document which is typically produced to the defendant insurer in a lawsuit.

How your Ontario personal injury lawyer can help

If you are required to pursue the defendant’s insurance company for both accident benefits and potentially compensation for personal injuries, which is rare but sometimes happens, it is necessary to have a personal injury lawyer involved in any statements taken. That lawyer will ensure that you are only giving a statement in relation to your accident benefits claims and will be mindful that the adjuster will be even more insistent on getting details of the car crash itself.

Under no circumstances should a victim of a car accident give a statement to a potential defendant or their insurance company, except on their lawyer’s advice and in their presence. In addition, it is important to remember not to share any details of your car accident or case in conversations with friends or on social media platforms such as Facebook or Twitter.

Important Deadlines For Injury Claims After a Car Accident Victims

If you have been injured in a car or motorcycle accident, your biggest concern is getting your life back on track – in both a medical and financial sense. A serious accident resulting in broken bones, a spinal cord injury or a head injury can mean months or even years of medical and rehabilitation treatment.  

In those instances, a consultation with a personal injury lawyer is an essential step in protecting your rights and ensuring you are accessing all the benefits and services available to you.  As well, an experienced personal injury lawyer will ensure all the important deadlines are met.

With more minor accidents, the extent of your injuries may not be immediately obvious and consequently, you may not think of consulting a personal injury lawyer right away.  In those cases, it is very important to be aware that there are numerous deadlines and limitation periods that affect your ability to claim benefits and/or bring a civil action.  A few important timelines include:

What are limitation periods in Ontario?

A limitation period is the period of time that a person has between an event, such as the accident or the denial of a benefit, and when he or she must take a step to protect a right. These limitation periods are extremely important. If your claim is not submitted in time, before the limitation period expires, your right to sue could be lost.

The following list provides some important car accident time limits in Ontario to be aware of:

• If you are making a claim against your own insurance company: You should put them on notice within seven days.

• Completion of the Ontario accident benefits application: This should be done within 30 days.

• To sue your own insurance company for accident benefits: This must be done within two years of a denial of benefit.
• To sue the at-fault driver: Two years from the date of the accident.

How Does a Lawyer Help?

The litigation process is a complex system, and when you have been injured in a car accident you will want ensure your rights are protected, as well as ensure you recover. A personal injury lawyer will be able to explain the process to you, as well as direct you through it. By retaining an experienced personal injury lawyer following a motor vehicle accident will give you the requisite knowledge you need to move forward with recovering for any losses you have suffered due to the accident.

In Ontario, when you initiate a motor vehicle accident claim, it is done so as a claim of negligence against the at fault driver. While the driver is the person named in the claim, if they are insured, their insurance company will handle their defence. If the at fault driver is insured and the insurance company does not decline coverage, which can happen for many reasons (i.e. the driver was intoxicated while driving, and therefore in breach of the terms of their insurance policy), than any damages sought will be against the persons coverage.

What you may be able to claim against the at fault driver through their policy will be subject to limits. A common motor vehicle policy will include up to 1,000,000.00 in coverage for such an accident. While this may be the maximum they will cover, what you can claim for and will recover will be based on evidence of your losses, which will include medical evidence, proof of any income loss, or other evidence supporting damages related to the subject accident.

When dealing with the at fault drivers’ insurance, there will be plenty of opportunity to discuss the claim, and address strengths and weaknesses of the arguments for damages. Often your personal injury lawyer will engage in negotiations with the at fault drivers’ lawyer to seek a settlement before trial. This is common, as most motor vehicle cases do not end up at trial, as settlement agreements save everyone time, energy, and money.

What if there isn’t enough Insurance

Another very important deadline arises in circumstances where the insurance held by the at fault driver is not sufficient to cover the damages the injured parties have suffered.  For example, if your personal injury damages total $300,000 and the other driver only has $200,000 in coverage. In those cases, an injured party has the ability to sue their own Insurance Company for the difference, provided they have purchased OPCF 44 – Family Protection Endorsement .  

But what if you don’t find out about how much insurance the other driver has until 3 years after the accident?  How soon after the accident must you sue your own Insurance Company?
The Ontario Court of Appeal recently considered this issue in its decision Roque v. Pilot Insurance Company.  Regardless of when you find out how much insurance the other driver has, you must sue your own Insurance Company Under the OPCF-44 within two years of the date you knew or ought to have known that the quantum of your claims exceeded $200,000.  This case underscores the importance of seeking legal advice and speaking with a lawyer who has experience dealing with these underinsured provisions.

When should I contact a personal injury or civil litigation lawyer?

The circumstances around every accident are unique. Waiting too long to take action can mean you may miss out on the financial compensation you may be entitled to. A personal injury lawyer or a civil litigation lawyer can listen to the details of your situation and help you to understand what options are available to get your life back on track.

Steps to Protect your Personal Injury Claim

An experienced personal injury lawyer will understand the importance of determining the limits and availability of the other driver’s insurance policy early on in the process to ensure that the proper steps are taken to protect your rights.  Ferguson Barristers has a team of lawyers with extensive experience, including two Civil Litigation Specialists.  If you have been injured in a car or motorcycle accident, contact us at 1-800-563-6348 to arrange a free initial consultation.