One of the first questions that I am asked by individuals who have been injured as a result of a motor vehicle accident is:  “Can I sue the other driver responsible for the accident and my injuries?”  My answer is typically “It depends”, followed by an explanation as to how the insurance system in Ontario works. 


In Ontario, we have what is commonly referred to as “no fault insurance”.  Under the no-fault system, an individual who has been injured in a car accident must turn to their own automobile insurer first and apply for accident benefits.  Every automobile insurance policy in Ontario provides coverage for medical treatment and rehabilitation and a number of other benefits.  Which accident benefits you are entitled to will depend on a number of factors, including: the severity of your injuries, how those injuries impact on your daily life, and in some cases, it will depend on whether you paid an additional premium for optional benefits. 


The Right to Sue


It is possible to sue the other driver and the owner of the motor vehicle responsible for the accident for pain and suffering and loss of enjoyment of life, future health care costs provided that certain requirements are met.  You may also sue for any economic losses or out of pocket expenses that have not been reimbursed by your insurer.   There is a limitation period for starting a lawsuit and so, it is important that you consult with an experienced personal injury lawyer as soon as possible to discuss your rights.   


Pain and Suffering


A claim for pain and suffering and/or future health care expenses can only be advanced if you meet the verbal threshold of having suffered a “permanent serious impairment of an important mental, physical or psychological function”.   In some cases, it is clear that the verbal threshold has been met but in the vast majority of cases, it is not an easy question to answer.  In most cases, the answer requires a very thorough review of your medical records by a doctor (often a specialist) who can then provide his or her expert opinion on whether the verbal threshold has been met.  In complex cases, it is not uncommon to obtain an expert opinion from more than one doctor who have different areas of expertise.  In addition, there is deductible that applies to awards of damages for pain and suffering that are $100,000 or less.  At this time, the deductible is $30,000.00. 


Family members may sue for loss of care, guidance and companionship, but again, the injured person must meet the verbal threshold for his or her family members to succeed in a claim for loss of care, guidance and companionship.  A deductible also applies to awards of $50,000.00 or less and currently, that deductible is $15,000.00 per claimant.    


Out of Pocket Expenses and Economic Losses


If you have been injured in a car accident, you may also sue for any out of pocket expenses and economic losses such as loss of income provided that you have not been reimbursed by your insurance company.  Unlike claims for pain and suffering or claims for loss of care, guidance and companionship, there is no threshold that applies to these types of losses and there is no deductible. 


Please contact Sandra DiMeo if you have questions about your rights following a car accident.