An Overview of Damages Available in an Automobile Claim
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Non-Pecuniary General Damages (damages for "pain and suffering"):
You should be aware that if your claim arises out of a car accident occurring after October 31, 1996, to succeed with your claim for pain and suffering your injuries must meet the requirements of the "threshold", and if during your lawsuit or at trial a court finds your injuries do not meet this threshold, you will not be entitled to damages for pain and suffering. In order for your claim to pass the "threshold", the injuries sustained in the motor vehicle accident must have resulted in:
Death;
Permanent serious disfigurement (for example, scars); or
Permanent serious impairment of an important physical, mental or psychological function.
Claims for pain and suffering are prevented unless you meet this threshold, however claims for loss of income and loss of earning capacity are not affected by the "threshold". If your claim meets the threshold, there is a $30,000.00 deductible from the amount of damages you, the injured party would otherwise receive. There is a $15,000.00 deductible for Family Law Act claims. The deductible will not be applied where claims for the injured party exceed $100,000.00 or claims under the Family Law Act exceed $50,000.00.
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Loss of Income:
The principles of "meeting the threshold" do not apply when you are suing for loss of income. Income losses can be claimed however, you can not claim a loss of income for the first 7 days after an accident. You can receive only 80% of your net loss of income (less any accident benefits which are received). After trial, you can receive 100% of your gross loss of income, less any accident benefits paid.
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Heath Care Expenses:
If your injuries meet the threshold, you can claim the costs of health care expenses incurred as a result of your accident, over and above amounts paid or available through accident benefits.
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Other Out of Pocket Expenses:
Other expenses reasonably incurred as a result of the motor vehicle accident not covered by accident benefits (i.e. housekeeping and home maintenance assistance).
Does the "Threshold" apply to non-automobile defendants? No. The Threshold only applies to the extent that the injuries were caused by the negligence of other drivers or owners of motor vehicles. Claims against municipalities, taverns, mechanics, etc. will not normally be subject to a threshold.
What if the accident was my partially my fault? If your actions have contributed to the accident, then you can still pursue a claim against other parties for the percentage that they are to blame for the accident.
What if I can't afford a lawyer? The Ontario Court of Appeal has ruled that contingency fee agreements are valid. The Law Society of Upper Canada has amended its rules to allow for contingency fees. A lawyer can agree to take on your case, subject to certain exceptions, and agree to be paid only if they are successful in achieving a settlement or Judgment at trial. That means you would only be required to pay the lawyers fees if a settlement is achieved or Judgment is obtained at trial. If the case is not successful then you would not be charged any fees.
Are there time limits I should be aware of? A person who wants to apply for benefits must notify the insurer within 7 days from the date of the accident. For those people who are unable to apply for benefits within 7 days due to the severity of their injuries, the application must be made as soon thereafter as it can reasonably be done. The insurer will then send to the insured the appropriate application forms. Within 30 days of receipt of the forms, a completed application for benefits should be submitted by the injured person to the insurer. Failure to comply with these time limits may not disentitle a person to benefits if there is a reasonable excuse. For details on what Accident Benefits are available to be claimed in a motor vehicle accident see (see Accident Benefits Claims) .
Under the Insurance Act, an action for loss or damage from bodily injury or death arising from the use or operation of an automobile shall not be commenced unless the Plaintiff has served written notice of the intention to commence the action on the Defendant within 120 days after the incident.
Under the Limitation Act, a proceeding or law suit shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered (usually the day of the accident).
“This web site contains a synopsis of some of the laws of Ontario, and is neither a definitive analysis of the law, nor a substitute for professional advice. You should not rely on the information on this web site as professional advice. Using the information on this site or contacting the lawyers on the site does not create a professional relationship. To obtain legal advice or retain a lawyer, an in person meeting is required and a written retainer will have to be signed.”
I was in a motorcycle accident and retained Jeffrey Raphael to represent me. I had been charged with careless driving and the insurer of my motorcycle told me my insurance had lapsed. Jeff was able to get the charges dropped, reinstate my insurance and settle my case for $1.5 million.
- S.G.
I sustained catastrophic injuries in a car accident. I hired a lawyer from the yellow pages but was not happy with the job they did for me. I then retained Jeffrey Raphael to take over my law suit. Jeff did an excellent job and was able to settle my case for more than I expected. Jeff kept me updated on all the developments in my case and was very knowledgeable about the law. I would not hesitate to recommend him. - D.S.
