Car accidents and tort claims

When you are involved in a motor vehicle accident in Ontario and you are not at fault for this accident, you may be able to sue the party who is at fault for the accident. This type of lawsuit, known as a tort claim or third party claim, addresses damages for your pain and suffering, loss of activities of daily living, loss of income, loss of earning capacity, loss of competitive advantage and out of pocket expenses that are not covered by the first party insurer (i.e. your accident benefits insurer). However, just because you are not at fault for the accident does not automatically entitle you to recover damages for your pain and suffering. In order to be successful with a claim against the at fault party, your injuries must meet what is called the threshold test and surpass statutory deductible. Pursuant to s.267.5(5) of the Insurance Act, a Plaintiff must be able to prove that they suffer from a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function. In order to meet this test, it is not enough for a Plaintiff to say they have pain or other impairment. There must be evidence to support the impairment. The issue of whether or not a Plaintiff meets the threshold test is formally decided by a judge if the matter goes to trial, but is also a factor in settlement discussions with the insurance company of the at fault party.

Aside from the threshold test, there is also the statutory deductible of $30,000.00 on claims for pain and suffering that do not exceed $100,000.00. What this means is that your injuries must be worth at least $30,001.00 as awarded by the courts for the type of injuries you suffer from in order to receive money for your pain and suffering from the Defendant’s insurance company. The goal of the deductible is to try to reduce the number of cases and ease the strain on our court system.

In light of the above, it is important that before commencing a lawsuit against the at fault party in a motor vehicle accident, that you ensure there will be evidence to support your claim and that your injuries will surpass the statutory deductible.