The term Motor Vehicle Accident (MVA) includes a variety of types, such as accidents involving:
- commercial vehicles
- tractor-trailer trucks or semi-trailer trucks
- city buses, school buses or commercial buses
A person injured in an MVA usually has 2 separate rights:
- The first is the right to Accident Benefits, sometimes called “no fault benefits.” These benefits are available regardless of whether the injured person is 100% at fault for the accident, has no fault whatsoever, or shares some portion of fault for the accident. These benefits are usually paid by the person’s own auto insurance company.
- The second right is the right to sue the person who caused the accident. This is called a Tort Claim. You can make a Tort Claim if you are not at fault for the accident or if you are only partly at fault. Tort Claims are usually paid by the auto insurance company for the person who caused the accident.
As a result of these two rights, most MVA victims will have two separate settlements which can happen at different times.
Sometimes, both of these rights are claimed from the same auto insurance company. This does not complicate or change anything. An MVA victim’s rights remain the same regardless of whether their auto insurer is the same as the auto insurer for the at-fault driver who caused the accident.
Our legal team has a wealth of experience representing seriously injured accident victims in both their Accident Benefits and Tort Claims.
Depending on your injuries and circumstances, Accident Benefits can include the following types of payments:
- Income Replacement Benefit: to compensate for lost income after an accident
- Non-Earner Benefit: available if you do not qualify for Income Replacement Benefit but suffer a complete inability to carry on a normal life
- Medical & Rehabilitation Benefit: for costs of drugs and non-OHIP funded health care such as physiotherapy, massage, chiropractic care, etc.
- Attendant Care Benefit: for costs of an aide or attendant to assist you or costs of a long-term care facility
- Housekeeping & Home Maintenance Benefit: to replace the home care tasks which you used to perform before the accident but are unable to resume after the accident
- Caregiver Benefits: if you used to be a caregiver to someone you live with but are unable to resume that role due to your catastrophic injuries from an accident
- Expenses Benefit: to reimburse you certain expenses incurred due to an accident
- Death and Funeral Benefits: for a family member fatally injured in an accident
You cannot seek compensation for pain and suffering from Accident Benefits. Only Tort Claims provide such compensation.
The amounts and types of Accident Benefits available will vary depending on a person’s injuries, circumstances and their insurance coverage. We have an Accident Benefits team dedicated to ensuring our clients take full advantage of the benefits available to them. When an Accident Benefits insurer cuts off or denies benefits, we fight to enforce our clients’ rights and make the insurer pay. This fight takes the form of a lawsuit against the auto insurer or arbitration with the Financial Services Commission of Ontario, the government body that regulates insurance in Ontario.
Your and your family’s future premiums for auto insurance are not affected by whether or not you make a claim for Accident Benefits from your auto insurer. Your premiums are also not affected or by how hard we fight to secure those benefits for you. What affects your future premiums is whether you were found to have some fault for causing the accident. That determination of fault is made in the early days following an accident and it does not change because of any Accident Benefits you may claim.
If you’ve been injured in an MVA, it’s important that you submit your claim for Accident Benefits as soon as possible. Many MVA victims find the process of applying for Accident Benefits confusing and overwhelming. Our Accident Benefits team can assist you with this. We are happy to accommodate you by meeting with you after-hours, on the weekend, or at your home or hospital.
There are also important considerations that you need to be aware of immediately after an accident. One of our lawyers would be happy to speak with you, free of charge, in order to help you assess the Accident Benefits available to you and provide you with the information you need to protect your rights.
Tort claims are better known as a lawsuit against the person who caused the accident. You can make a Tort Claim if you are not at fault for the accident or if you are only partly at fault. So long as someone other than you has some portion of fault for the accident, you can make a Tort Claim.
The types of compensation that you can seek in Tort Claims include compensation for:
- your and your family’s pain and suffering
- your loss of income, past and future
- any loss of income that a family member suffers due to your injury
- costs of medical rehabilitation, past and future, which include costs of:
- therapy such as physiotherapy, chiropractic, massage, etc.
- psychological counselling for the injured person and their family
- past and future costs of care, which include costs of:
- modifying your home, car and work space
- re-training and education toward a different type of employment
- nursing/attendant care to assist with personal care tasks
- housekeeping and home maintenance
- assistive devices for your home, vehicle, workplace, etc.
- child care
- pet care
Tort Claims are usually paid by the auto insurer for the at-fault driver. If the person at fault for the accident is uninsured or if their identity is unknown because they fled the scene of the accident, then the MVA victim’s auto insurer would pay the tort claims.
Where you are partly at fault for the accident, we will assess what percentage of fault lies with you and the total value of your losses will be reduced by that percentage. This way, the at-fault driver’s insurance company only pays for the portion of your losses that their insured was responsible for. So if you were 25% responsible for causing the accident, you would only recover 75% of the value of your losses.
Sometimes, MVA victims don’t want to sue the at-fault drivers who caused the accident because they worry about creating problems for these people. If you are worried about this, you don’t need to be. Almost all drivers have auto insurance in place that protects them from incurring any expenses in the lawsuit and protects them from paying any settlement monies. Their auto insurance company defends the lawsuit on their behalf and it makes all decisions about the lawsuit for them. The at-fault drivers have very little involvement in the lawsuit.
Another scenario where MVA victims don’t want to sue the at-fault driver is when the at-fault driver is their friend or family member. This is not a problem. Because the insurance company takes care of defending the action, the lawsuit does not hurt or disrupt the lives of the people being sued.
Sometimes, people are able to settle their Tort Claims early, before commencing a lawsuit, in circumstances where their long-term prognosis is known. How long it takes to know a person’s prognosis depends on the type and severity of their injuries. Once we know your prognosis, we can assess the value of your losses and future care needs for the rest of your life. This way, we can ensure that you and your family are fully compensated.
There is a 2-year limitation period in Ontario for commencing a lawsuit against an at-fault driver who caused an MVA. There are also important deadlines you need to be aware of immediately following an accident.
One of our lawyers would be happy to speak with you, free of charge, in order to learn if you have a case, to assess the potential value of your case, and to assist you with accessing the resources and help that you need now, before your case settles.