Car Accident Lawsuits in Canadian Provinces: Exploring Legal Procedures and Rights
With 1,066,180 kilometres of road as of 2018, Canada is the second largest country in the world. Due to the vast infrastructure, most people drive in the country, which is why there were 26.2 million registered vehicles in 2021.
This also means that car accidents are inevitable. In 2021, there were 108,018 incidents resulting in minor to severe injuries. Statistically, that’s not a very high number, but being involved in an accident can be life changing, especially for the 8,185 people who sustained serious injuries.
If you were involved in a car accident and suffered serious injuries, what should you do? Your instinct might be to call a car accident lawyer. However, there is a process you must follow and obligations that you must meet.
While the rules may vary from one province to another, there are a few common principles that you need to follow. Below, we’ve listed a guide to the legal procedures and your rights regarding car accident lawsuits across Canadian provinces.
| Key Takeaways
|
Your Legal Obligations
Whether a car accident involves property damage, injury, or death, it generally has legal implications. If you’re involved in a car accident, one way to safeguard your rights is by making sure that you meet your obligations.
Stay put
You should never leave the scene of an accident. If you are rear-ended, you might need to drive a bit farther before you can stop. That’s okay. The point of impact to where you finally end up stopping is the scene of the accident. Stay where you are until all the legal formalities are over.
Fleeing the scene of an accident is a crime in Canada under section 320.16 (1) of the Criminal Code. It may also be an offence under provincial legislation, such as under section 200 of Ontario’s Highway Traffic Act.
Section 69(1) of Alberta’s Traffic Safety Act stipulates the following:
“Where an accident in which a vehicle is involved occurs on a highway, the driver or other person in charge of any vehicle that was directly or indirectly involved in the accident shall
(a) remain at the scene of the accident or, if the person has left the scene of the accident, immediately return to the scene of the accident unless otherwise directed by a peace officer.”
Most provinces and territories will have similar language for dealing with car accidents in Canada.
Render assistance
Another general duty of persons involved in an accident is to make sure that everyone is safe. Check for injuries and call for an ambulance when necessary.
You shouldn’t move an injured person unless you can do so safely or it’s absolutely required. For example, if you’re a doctor and can render professional medical assistance, or the injured party is in a burning car, you can perhaps move the injured person.
It’s very important to warn oncoming traffic in order to prevent more accidents. If available, put on hazard lights or set out reflective triangles a few meters from the scene of the accident.
Report the collision
You must report a car collision, but not necessarily to the police. The police will come only if the incident involves a hit-and-run, cyclist, pedestrian, injury, death, or property damage of a certain amount. In Ontario and Alberta, the threshold for property damage is over $2,000. For everywhere else, including Quebec, it’s $1,000.
There are exceptions to the property damage threshold, such as property damage to a third party, like someone’s lawn or a guardrail.
You must also call the police if the accident involves a crime, such as drunk driving or transporting dangerous goods. The police will also respond to accidents between 11 pm and 6 am, when any vehicle is not drivable.
When you call the police, you may have to wait for them to arrive at the scene unless they tell you to go to a Collision Reporting Centre. In either case, the police will generate an accident report, which you can use for insurance claims or a car accident lawsuit.
For accidents that only result in vehicular damage, you must bring the vehicle to a Collision Reporting Centre within 24 hours. However, you have up to 48 hours if the accident happens on the weekend and the centre is closed.
Make sure to exchange information with the other parties involved in the accident, including getting their names and insurance information.
At the centre, your vehicle will undergo inspection and the damage will be documented. The centre will also help you fill out a police report, and they’ll send it to your insurance company unless you request otherwise.
Inform the insurance company
You should always report an accident to the insurance company. Canadian drivers must always carry proof of insurance, so the contact information should be at hand.
While it’s best to report any accident as soon as possible, you must do so within 72 hours. Carry a soft copy of the Incident Report Form sample from the Insurance Bureau of Canada with you. It can help you collect the critical details you need, such as names, contact information, vehicle ownership, and insurance details.
Keep in mind that any accident you report to your insurance company will be counted against you if you’re even partially at fault. This means that even if you pay for everything yourself, your monthly premium will likely increase. This is why most people prefer not to report minor accidents to their insurance company.
You must nevertheless collect the at-fault driver’s insurance information if you’re the injured party. Your insurance company will require it for your claim.
If, however, you’re the one at fault and you didn’t report it to your insurer, chances are that the other party will. This can land you in some trouble, as your insurance company might cancel your policy or refuse to renew it.
What To Do if the At-Fault Driver Has No Insurance
Though driving without car insurance isn’t a federal offence in Canada, it’s an offence under provincial legislation. For example, under section 2 of Ontario’s Compulsory Automobile Insurance Act, every driver is required to have insurance. If you’re driving a motor vehicle without insurance, there are significant penalties, such as fines and licence suspensions.
However, if you’re in a car accident and no one has insurance, you may still be able to get compensation for your losses. Some provinces have programs to deal with injuries involving uninsured motorists. Since, however, driving without insurance is an offence, these programs are a last resort.
Ontario’s Motor Vehicle Accident Claims Fund is one such program. If you’re eligible, you can claim losses for injuries, deaths, property damage, and funeral costs. You can receive up to $200,000 in benefits, as well as legal costs, if you sue the at-fault party.
Suppose, however, that the at-fault driver has no insurance or that they flee the scene of the accident. If you have insurance, you may still be eligible for special programs even if the at-fault driver is uninsured.
Regardless of fault, you can get compensation through your insurance provider under the Statutory Accident Benefits Schedule (SABS) in Ontario. These include income replacement, non-earner, caregiver, medical and rehabilitation, attendant care, death and funeral, and other benefits. Moreover, availing of SABS doesn’t preclude you from filing a car accident lawsuit in Canada.
If you’re in Alberta, you have access to a program for Motor Vehicle Accident Claims (MVAC). If your insurance doesn’t cover any losses, you can get compensation of up to $200,000 for bodily injuries.
However, unlike SABS, you must not be at fault for the accident to qualify for MVAC. You must also initiate a personal injury lawsuit against all liable parties within two years of the incident. Filing an MVAC claim can be complex, so it’s best to retain a personal injury lawyer.
Car Accident Lawsuits in Canadian Provinces
An insurance claim is the most common way to get compensation for car accidents in Canada. It’s often the only way to get compensation if the accident doesn’t involve death or serious injury.
However, there are cases when an insurance claim or access to SABS and MVAC will not cover all your losses. This is where filing a lawsuit is the best way to get compensation, and the following steps are crucial:
Gather evidence
In case of injury, property damage, or death, you should document the following, which will help your car accident lawyer build a strong case:
- Details of the other vehicle, such as the licence plate, make, model, and year
- The licence and contact information of the other driver
- Other driver’s insurance details, including the insurance policy number
- Names and contact information of witnesses
- Any video or photographic evidence you can find, such as dashcam footage
Be ready to provide your information to the police and any other party involved in the accident. However, don’t admit fault or make any statements to imply that you’re liable in any way. Moreover, don’t accept any payment or settlements or sign a release before talking to your lawyer.
Get medical attention
Even if you feel alright, it’s important to consult a doctor immediately after an accident. This is because you may not see any signs of injuries until years after the accident. Furthermore, if you consult a doctor, you’ll also get a medical report, which is an important piece of evidence in your lawsuit.
Contact a car accident lawyer
If you think that the other driver was at fault and you want to seek compensation, the first thing you need to know is how fault is determined. In Ontario, insurance companies rely on the Fault Determination Rules to verify the degree of responsibility. Other provinces may have different rules.
In any case, because personal injury law is so complex, you must find a lawyer in your province to handle your case. It’s easy to make a mistake that can ruin your chances of receiving compensation for your injuries. An experienced personal injury lawyer knows what to do and can help you get the compensation you deserve.
While lawyers are expensive, don’t let that stop you. Most lawyers will provide a free consultation to determine if you have a good chance of winning.
They may also offer to work on a contingency fee basis. This means that you won’t have to pay them if you don’t win the case. However, you may still have to pay court filing fees, which are generally nominal.
Get ready for a fight
Canadian law typically requires you to notify the other party that you’ll bring formal proceedings within 120 days of the accident. This means that you shouldn’t waste any time finding a lawyer to represent you.
In most cases, the at-fault party and their insurance company will deny liability. You want a competent lawyer who can respond to motions and all other legal obstacles that they might throw your way.
However, most car accident lawsuits don’t make it to a trial. Insurance companies may offer to settle the matter rather than go through the expensive litigation process. Your lawyer can determine when a settlement offer is acceptable and advise you accordingly.
If you don’t want to settle or the offer is unreasonable, your lawyer can tell you about the claims you can make to seek compensation for your injuries and losses.
What can you claim?
The aftermath of a car accident can have multiple physical, emotional, and financial consequences. You can typically sue the at-fault driver and other liable parties for compensation for pecuniary and non-pecuniary damages. This is above and beyond any payment you may receive from your insurance company.
In 1978, the Supreme Court of Canada imposed a cap on non-pecuniary damages, including pain and suffering. The $100,000 cap resulted from rulings in three cases: Andrews v Grand & Toy Alberta Ltd., Thornton v School District No. 57 (Prince George) et al., and Arnold v Teno.
Most provincial courts allow for inflation, and the cap currently stands at around $400,000. There is no cap for pecuniary damages, such as medical expenses, given they are actual financial losses incurred by the plaintiff.
Medical treatment and rehabilitation
Insurance companies in Canada generally cover medical expenses resulting from a car accident. However, when the injuries are serious or result in temporary or permanent disability, your insurance may not cover all your healthcare costs. In that case, you can ask for compensation to bridge the gap for the costs of surgery, doctor’s visits, rehabilitation, and attendant care. The damages you can ask for will depend on the severity of your injuries.
Loss of income and earning ability
Getting hurt in a car accident typically means taking time off from work, which will affect your earning ability. You can claim present and future loss of income and lost earnings. Your injuries don’t need to be severe or permanent. You might only need to show that your injuries have and likely will result in these losses.
Caregiver and home maintenance costs
If you were a caregiver at the time of the accident, and your injuries have prevented you from doing your work, you can request the court to include this in your award for damages. You may also want to request housekeeping and maintenance costs, which you would ordinarily do yourself, but can’t do anymore because of your injuries.
Pain and suffering
The bulk of non-pecuniary damages you can claim is for pain and suffering. This is a general term describing any physical and psychological harm you may have suffered, such as emotional distress, loss of companionship, impairment of life, and loss of guidance.
Any reduction in the plaintiff’s quality of life due to a car accident may be the basis of a financial claim. In the case of wrongful death, surviving family members may rely on section 61(1) of the Family Law Act to seek compensation for these losses.
Limitation Periods
One of the most important things a personal injury lawyer does is file an insurance claim and a lawsuit in a timely manner. It may not be as straightforward as you think.
Filing an insurance claim
Filing an insurance claim for car accidents is often provider-specific. For example, most insurers in Ontario limit the applicable time limit to seven days. However, some providers may require you to report an accident within 72 hours. Check your policy for the time limit to make sure that you file a claim in a timely manner so that you can get compensation for your injuries.
Provinces may also have time limits by which you must submit an insurance claim. In Ontario, it’s 30 days, and in Alberta and other provinces, it’s 90 days.
Filing a car accident lawsuit
Pursuing a civil action in Canada is subject to provincial and municipal laws on limitation periods, which are often called the statute of limitations. You must typically file a car accident lawsuit within two years. While Nova Scotia previously allowed lawsuits to be filed within 3 years, changes in the law have now brought it down to two years for civil claims.
What does this mean? This means that you may lose the right to claim compensation or bring formal proceedings if you don’t file a notice of claim and a lawsuit within the limitation period.
There may also be different time limits for filing a notice of claim. For example, Ontario requires plaintiffs to give notice to the defendant within 120 days of an accident. Other provinces, including Ontario, may allow extensions based on discovery, which means that the plaintiff became aware of their personal injury at a time after the accident.
Section 4 of Ontario’s Limitations Act says, “A proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”
Section 15 further sets an “ultimate” limitation period of 15 years. This means that no civil action may be commenced after 15 years, regardless of when the injuries were discovered.
Whatever the case may be, trying to get an extension because of discovery adds another layer to your burden of proof. Therefore, it’s best to file a car accident lawsuit as soon as possible after the event.
This urgency is especially important when the liable party is a government entity. For example, if a public bus hits your vehicle since the municipality owns and operates the bus, you must file a notice of claim and lawsuit within 3 to 10 days and begin the case within 3 months. Moreover, this limitation period may vary across cities and provinces.
Victims of hit-and-run accidents may also have less time to file a civil claim. Under Alberta’s MVAC program, you have 90 days to file a notice of claim when the at-fault party’s identity is unknown.
Did you know?
Ontario allows insurance companies a statutory deductible for non-pecuniary damages in a personal injury claim. The rules for determining the deductible are described in section 267.2(2) of the Insurance Act.
Get Help With Car Accident Lawsuits in Canadian Provinces
Car accident lawsuits across Canada generally follow the same process and protect the same rights. However, federal and provincial laws governing civil actions are complex, and it’s easy to make mistakes when claiming compensation for your losses.
Suppose you were in a car accident in Toronto that wasn’t your fault, and you sustained significant financial losses. You may recover your losses by filing an insurance claim and suing the liable parties. Diamond & Diamond Lawyers can make sure that you follow the proper process so that your rights are protected and that you get the compensation you deserve.
You might not have much time. Book a free consultation today.