Every day, in the province of Ontario, hundreds of drivers are injured in car accidents. In many cases, these unfortunate individuals suffer serious losses that impair their ability to live a normal life or earn a living to support themselves and their families. Usually, the person driving the other vehicle which causes the accident does not intend to negatively impact anyone’s life, but the fact remains, through either negligence or misconduct such as drinking and driving or texting, they are victimizing the person that they hit. What many Ontarians, don’t realize, however, is that, in this province, you are actually victimized twice when you are in a car accident.
This is because Ontario has one of the most restrictive and unfair automobile injury compensation systems in the Western World. The Ontario automobile insurance compensation system is designed to prevent the vast majority of innocent accident victims from receiving fair compensation for their injuries. How does the Ontario Insurance Act do this?
Well, an individual injured in a motor vehicle accident in Ontario is only allowed to receive compensation for pain-and-suffering and lost enjoyment of life if he or she can prove to a judge that they have sustained an injury which crosses the “Threshold.” The Threshold is found in section 267.1 (3) of the Insurance Act. It says that you are only allowed to sue a wrongdoer who injures you in a car accident if you can establish that you have sustained a “serious and permanent disfigurement or serious and permanent impairment of an important physical, mental or psychological function.” This means that even if a victim suffers terrible injuries and may be unable to return to work for months or even years, the accident victim is prevented by Ontario law from seeking fair compensation if they recover too well. Insurance companies in Ontario often have “threshold committees” and will take cases to trial if they believe that they can convince the Court that the innocent accident victims have recovered to the point where they should be denied compensation.
Proving serious and permanent impairment is no easy thing. Generally speaking, an injury is considered serious if it impairs your ability to continue working at your chosen career or profession, or if it impairs your ability to pursue your chosen career or profession. However, this test does not work particularly well when a student, or a retiree, or person who is already suffering from a disability (and is outside of the workforce) is injured in an accident. In those cases, it may be difficult or even impossible to convince the Court that the victim has sustained serious and permanent injuries. Proving these types of cases requires the use of specialized medical experts, occupational therapists, vocational specialists, and others, to put the proper evidentiary foundation before the court.
However, even if an accident victim proves that he or she has sustained serious and permanent injuries, the Ontario Insurance Act has another obstacle to make it difficult to sue. That additional challenge is called “the deductible”. Ontario is the only jurisdiction in the Western world that claws back a significant portion of damage awards from innocent accident victims. The vast majority of injury cases in this province will see damage awards of between $20,000 and $150,000. Awards in excess of that are reserved for the most seriously injured individuals and are relatively rare. What most people do not realize, however, is that in Ontario, if a jury awards anything less than $129,395 (as of 2019) to compensate the victim for pain-and-suffering and lost enjoyment of life, then that amount of money is reduced by “the deductible” which is currently $38,818.97. The deductible increases every year.
In addition, the defendant, who wrongfully strikes someone and injures them, is also entitled to a credit for any money that the accident victim receives from their own no-fault benefits carrier, Canada Pension Plan disability benefits, group or collateral benefits, employer severance payments, or money received from any other source. As a result, juries may believe that their rewarding tens or even hundreds of thousands of dollars to accident victims when, after the deductible and collateral deductions are applied, accident victim may end up receiving little, if any compensation. Even worse, in those cases, the innocent accident victim is required to pay legal costs to the insurance company defending the at-fault driver.
According to the current state of Ontario law, lawyers representing accident victims are not allowed to tell juries about the deductible or the collateral deductions. The result is a system where juries think that they are compensating innocent accident victims; however, these individuals are being denied compensation. The current challenges and obstacles to litigation in Ontario, specifically the threshold, together with the deductible and collateral deductions, have progressed to the point where in 90% of cases legitimately injured individuals no longer have viable claims. We have progressed to the point where individuals pay insurance into a system believing that, if they are ever injured, through no fault of their own, the system will take care of them. However, lawyers in our office and elsewhere encounter cases every week where we are forced to tell individuals that notwithstanding that they are clearly suffering as a result of the wrongdoing of others due to a motor vehicle accident, the current system does not allow them to pursue compensation.
In order to properly represent individuals, it is crucial that lawyers be aware of these challenges and obstacles. In addition, your legal representative needs to retain the proper experts and to take the proper steps to build your case to overcome these challenges. Lawyers and staff at Rastin Gluckstein Lawyers have spent the last 30 years representing innocent accident victims that require proper representation in motor vehicle cases.
If you have been injured in a motor vehicle accident and would like your case assessed by an experienced and trusted injury lawyer, call 1-844-727-8461 (RASTIN1) or fill out our web form.