Originally published in Canadian Pain Coalition
Every year in Ontario, thousands of people are injured in car
accidents. All too often, these injuries result in impairments and
chronic pain that prevent a full return to pre-accident
If you are unfortunate enough to be injured in a car accident,
you should consider your legal rights. Although it is impossible to
review these rights comprehensively in one column, a summary of
these rights is set out below.
STATUTORY ACCIDENT BENEFITS
One way that you can try to rehabilitate from your injuries and
to recover the losses arising from your injuries is by applying for
"statutory accident benefits". If you are driving your
car and are struck by another car, you will typically apply to your
own insurance company for these benefits. In some cases you will
apply for accident benefits to an insurer of one of the other
vehicles involved in the collision. You can also apply for accident
benefits if you are a passenger involved in a car accident or if
you are struck by a car while walking or cycling.
You are entitled to apply for accident benefits regardless of
who caused the car accident. This is why statutory accident
benefits are sometimes called "no fault" benefits.
Depending on your circumstances and injuries, you may be
entitled to a number of benefits. These include income replacement
benefits, medical and rehabilitation benefits, attendant care
benefits (which arise where you need assistance with personal care)
and housekeeping and home maintenance benefits. Although statutory
accident benefits are "no fault", you still must
establish that you meet the tests for entitlement to the
You may also be entitled to pursue a "tort" claim (a
type of lawsuit) against the driver and anyone else you believe is
at fault for the accident.
In contrast to accident benefits, you must be able to prove that
the other driver is wholly or partly at fault for the accident to
recover "damages" (i.e. money). You do not have to prove
that the other driver is 100% at fault. For example, if you prove
the other driver is 50% at fault then you will generally recover
50% of the damages that you would otherwise have received.
In your tort claim, you can seek compensation for items
including pain and suffering, income loss, and medical,
rehabilitation and attendant care expenses. Certain family members
can also seek compensation for their losses, including the loss
that they have suffered in their relationship with you because of
your injuries. There are a number of restrictions and deductibles
that can apply to prevent or limit your entitlement to
compensation, even if the other driver is 100% at fault.
There is some overlap in the items that you can receive as
accident benefits and that you can claim in your tort claim. There
are a number of provisions in the law that operate to reduce the
chance that you will receive a "windfall" or "double
In addition to statutory accident benefits and a tort claim, you
may also be entitled to "collateral" benefits if you are
injured in a car accident. Examples of collateral benefits are
long-term disability (LTD) benefits and medical and rehabilitation
benefits available under either a workplace insurance plan or a
private insurance plan. Generally, you should apply under all
available insurance policies to seek compensation for your
If you have been injured in a car accident, you should consider
speaking to a lawyer who practices in this area of law as soon as
possible. There are various time limits that apply to your claim
for accident benefits and to your tort claim. If these time limits
are not met, you may be restricted and in some cases barred from
pursuing your claims. The law relating to car accident victims is
complex and it changes frequently. A lawyer can help you understand
your rights, so that you have the best possible chance to recover
from your injuries and to be compensated for your losses.
A recent decision of an Alberta court in Lafarge Canada Inc. v Edmonton (City) confirms that a party choosing to commence an action in the face of a valid agreement to arbitrate runs the risk of being left without a remedy.