If your car accident occurred on or after September 1, 2010, the following is a brief description of what you may be able to recover both from your own insurance company, and from the insurance company of the at-fault driver.
You are entitled to receive accident benefits from your own insurance company. (If you do not have your own car insurance and you live with a family member that does have insurance, then you must make the application to that policy. If that does not apply then you turn to the driver of the vehicle you were in or as a last resort the other driver’s insurance policy).
Under new legislation which recently came into effect, please note that an Application for Accident Benefits must be filed with your own insurance company within seven (7) days from the date of the motor vehicle accident, or as soon as is practical.
The legislation enables you to receive benefits for loss of income and expenses that are incurred as a result of your accident. The income replacement is 70% of your gross income up to a maximum of $400.00 per week. If you were not working at the time of the accident, you may still be eligible for benefits if your injuries are preventing you from carrying on your regular day-to-day activities.
You are also entitled to receive up to $50,000.00 in medical rehabilitation benefits, as well as reasonable out of pocket expenses that relate to the accident. If your injury falls within the definition of the Minor Injury Guidelines, your medical rehabilitation benefits will be limited to $3,500.00.
Benefits such as caregiving, housekeeping and attendant care are available if your injuries are catastrophic or if your policy has not yet been renewed after September 1, 2010. You should consult with your insurance broker when your policy comes up for renewal in order to decide whether or not you should purchase optional benefits such as attendant care, caregiving and housekeeping for a non-catastrophic injury.
If your car accident occurred on or after June 1, 2016, everything that is listed above still applies, however the following changes have taken effect as of that date. These changes apply to policies that are issued or renewed after June 1, 2016.
First, certain benefits, such as caregiving and housekeeping, are only available if you have purchased these optional benefits on your policy. You should consult with an insurance broker or your insurance company in order to decide whether or not you should purchase any of the optional benefits available to you.
Second, with respect to medical, rehabilitation and attendant are benefits, the duration you are entitled to receive these benefits for non-catastrophic injuries is now 5 years (previously it was 10 years), except in cases involving a minor. For non-catastrophic injuries, there is now a combined limit of $65,000.00 available for medical, rehabilitation benefits and attendant care benefits (previously the limit was $50,000.00 for medical and rehabilitation benefits and $36,000.00 for attendant care benefits). For minor injuries, medical, rehabilitation and attendant care benefits remain fixed at a maximum limit of $3,500.00. Further, for catastrophic injuries, there is now a combined limit of $1,000,000.00 available for medical, rehabilitation and attendant care benefits (previously the limit was $1,000,000.00 for medical and rehabilitation benefits and $1,000,000.00 for attendant care benefits). If you previously purchased optional benefits to increase these amounts, an important thing to remember is that the amounts may have changed as a result of the new legislative changes.
Third, if you were not working at the time of your accident, you may be eligible for a benefit known as the Non-Earner benefit. Previously, there was a six-month waiting period before you would be entitled to receive these benefits. Under the new legislation, the waiting period has been reduced to four weeks. However, under the new legislation Non-Earner benefits can only be received for up to two years after your accident (previously this benefit was potentially available for the rest of your life).
Finally, under the new legislation, for accidents that occur on or after April 1, 2016, the only forum in which to dispute an insurer’s denial of a claim for accident benefits is the Licence Appeal Tribunal (which is part of the Ministry of the Attorney General). Previously, an injured individual who’s insurance company denied a claim for accident benefits had a choice between either pursuing a lawsuit in the Superior Court of Justice, or commencing mediation (and thereafter arbitration) proceedings at the Financial Services Commission of Ontario.
The medical/rehabilitation benefits may cover the following types of expenses:
- Physiotherapy, chiropractic, massage therapy and other rehabilitation treatment modalities;
- Prescription drug expenses;
- Travel expenses in some circumstances;
- Visitation expenses for family members to visit you;
- Re-training and vocational counselling costs to assist with your return to employment;
- Housekeeping and child-care expenses;
- AND OTHERS — for more information on your benefits contact your insurance broker or insurance company.
Higher levels of benefits are available if you have suffered catastrophic injuries.
The Right to Sue
Pain and Suffering (General Damages) and Family Members
If you are seriously injured, you have the right to sue the person who was at-fault in the accident for pain and suffering. As per new legislation, any compensation that you receive for pain and suffering is subject to a $37,385.17 deductible by the insurance company. It is very important to remember that any court action must be started within 2 years from the date of the accident. However, this is subject to a discoverability rule. To be able to sue for pain and suffering and healthcare expenses, the injury must result in death, permanent serious disfigurement, or permanent serious impairment of an important physical, mental or psychological function. In addition, family members may sue for the loss of companionship, care and guidance they have suffered as a result of injuries to you under the Family Law Act. These claims are subject to a $18,692.59 deductible. However, the deductible will not apply to Family Law Act claims for fatal occurrences.
Recovery of lost income and loss of earning ability is limited to 70 per cent of your gross income loss, beginning 7 days after the accident until trial. After the trial date, recovery will be based on 100 per cent of your gross income loss and loss of earning capacity. Amounts received in the form of accident benefits from other sources, such as workplace disability plans, will be subtracted from any such awards or settlements.
Procedural Steps You Must Follow
You (the plaintiff) must notify your own insurer of the accident and apply for accident benefits within 7 days of the accident, or as soon as is practical.
If you do not have your own insurance you may be entitled to claim benefits from one of the insurance companies that insured vehicles involved in the accident.
You must also notify the person being sued (the defendant) and their insurance company within 120 days of the accident that you intend to commerce a lawsuit against the defendant. A letter stating the date, time and place of the accident and a brief description of your injuries is required. You should also state that you would like to reserve the right to pursue a claim at some time in the future.
The defendants insurance company has the right to information about your insurer and claim for accident benefits, and your medical treatment as a result of the accident. You may also be required to undergo an examination by the defendant’s health professional. A failure to comply with these procedural and disclosure steps may result in a cost penalty against you.
Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.