1. How do I know if I can or should make a claim for compensation?

If you suffer injury as a result of an accident, often times you will have the right to make a claim against the person(s) or entities that caused or contributed to your injuries. This is known as the "tort" claim. It is not always clear when you should be pursuing a tort claim and you should seek the advice of a personal injury lawyer who can examine this issue.

A claim for financial compensation can be made for injuries suffered in a variety of situations and circumstances. In most cases, your claim will be covered by an insurance company from which you will be entitled to compensation. Therefore, you should not be concerned that you are pursuing the individual wrongdoer for your compensation. Such circumstances include:

  • motor vehicle accidents;
  • pedestrian accidents;
  • motorcycle accidents;
  • bicycle accidents;
  • ATV accidents;
  • snowmobile accidents;
  • bus accidents;
  • train accidents;
  • boating accidents;
  • airplane accidents;
  • slip and falls;
  • medical malpractice;
  • defective products; and
  • assaults.

It is recommended that you consult a knowledgeable Toronto personal injury lawyer at Goodman Halioua LLP to determine if your circumstances are such that you are entitled to advance a claim for compensation. The Toronto accident lawyers at Goodman Halioua LLP will be able to guide you based on their expertise in the field, but do so in a compassionate manner as we understand the difficulties associated with sustaining severe injury.

2. Can I start my claim for financial compensation at any time?

There are "limitation periods" in Ontario which require commencing a lawsuit before a specified date, after which your claim may be prejudiced. In most circumstances, the limitation period will be 2 years from the date you knew or ought to have known of the events giving rise to your claim for financial compensation. In the event of a car accident that results in injury, you must commence a claim prior to the 2 year anniversary of the accident. However, in the case of a claim arising from medical malpractice, the injured person will often not know of the alleged negligence until after the treatment is provided (sometimes years later). In such cases, it is very difficult to determine when the limitation period expired and this becomes a legal question involving the application of "discoverability".  It is strongly recommended that you immediately consult a Toronto personal injury lawyer at Goodman Halioua LLP if you have questions about a potential limitation period you may be facing.

3. How much can I get from the insurance company?

The level of financial compensation you may obtain in a tort claim depends on a number of factors. Prior to being entitled to any compensation, you must be able to establish that fault or "liability" lies with the parties you are claiming against. In some cases, you will need to share in the fault, which is known as "contributory negligence".  While this does not prevent you from advancing your claim in a successful fashion, it will serve to reduce the financial compensation to which you are entitled.

To be successful in a tort claim, you do not need to prove that one person is completely at fault. It can be the combined negligence of more than one person and you will still be successful. Further, the law in Ontario provides for "joint and several negligence", which means that where one party is held 99% liable and the other is 1% liable, you are still entitled to recover your total damages from the party that is only 1% liable.  This is important in instances where the party found 99% liable does not have insurance.

In a tort claim, financial compensation may be available to the injured person for pain and suffering, loss of income, future care, housekeeping assistance and other out of pocket expenses. There may also be claims for family members under the Family Law Act for the loss of guidance, care and companionship. There are many types of damages available in a tort lawsuit, all of which will depend on the specific facts of your case. Consult a Toronto personal injury lawyer at Goodman Halioua LLP to learn more about your rights.

4. Will lawyer fees eat up my entire claim?

After you or a loved one has suffered serious injuries or illness, you are already under a great degree of financial and emotional stress. A personal injury lawyer is supposed to help ease your burden, not make it heavier. The Toronto personal injury lawyers at Goodman Halioua LLP do not require you to provide any financial contribution towards your case*. Goodman Halioua LLP only receives compensation for their tireless advocacy on your behalf when your case is successfully resolved, either by settlement or Judgment of the Court, where necessary. At your free, no-obligation initial consultation with Goodman Halioua LLP Personal Injury Lawyers we will explain our fee arrangement.

*Note: where your claim is for medical malpractice, these are very complex cases which require an initial investigation and obtaining an expert medical opinion, in most cases. Accordingly, in these cases we will require some type of financial contribution from the client. Please contact our medical malpractice lawyers to learn about your options.

5. What if my injuries were suffered in a car accident?

The insurance legislation in Ontario prescribes the circumstances where a tort claim can be commenced for pain and suffering, loss of income, future care and other types of damages where the injuries arise from an accident involving a car, motorcycle, bicycle, bus, train, ATV or snowmobile. The legislation in Ontario sets out a definition of the type and severity of injury or injuries that you must have suffered prior to having the right to commence a lawsuit. This is commonly referred to as the “threshold”. If you cannot meet the threshold, you will not be entitled to any damages for pain and suffering, amongst other things.

In addition, there is a deductible applied to damages in the context of a tort claim for injuries that arose out of a motor vehicle accident.  Currently, the legislation in Ontario mandates that the first $36,905.40 of any award of damages for pain and suffering that does not exceed $123,016.99, be deducted from the portion of your total compensation attributable to pain and suffering. Importantly, the deductible and threshold are indexed for inflation and will increase in January of each year. Similarly, a $18,452.70 deductible is applied to claims under the Family Law Act, unless the claim exceeds $61,507.99. The deductible and monetary threshold applying to claims under the Family Law Act are also indexed for inflation and will increase in January of each year. Claims made under the Family Law Act for a death resulting from a motor vehicle accident are not subject to the deductible.

The legislation pertaining to car insurance in Ontario is complex and always changing. It is recommended that you consult a motor vehicle accident lawyer at Goodman Halioua LLP to assist you in navigating this difficult and constantly evolving area of the law. The Toronto car accident lawyers at Goodman Halioua LLP specialize in this area and constantly monitor and remain apprised of the changes to the auto insurance legislation in Ontario. Our Toronto auto accident lawyers will be able to explain how the law will apply to the circumstances of your particular case and help you determine the best approach.

6. What if I was at fault for the accident?

Where the accident involved a car, motorcycle, bicycle, ATV, train, public bus, or snowmobile, you will be entitled to certain benefits even if you were at fault for the accident. These benefits are called accident benefits or “no-fault benefits” and are mandated under the Statutory Accident Benefits Schedule (“SABS”), which is made under the Insurance Act. The SABS frequently undergo legislative revision, with the most recent changes being implemented on September 1, 2010. As a result, consultation with a Toronto personal injury lawyer at Goodman Halioua LLP is recommended to determine your entitlement to accident benefits and, in some instances, access to benefits from other sources.

7. Does everyone automatically get the same benefits under the accident benefits regime?

No. Due to the recent amendments to the SABS, when you are injured in a car accident you may fall into one of three categories used to determine the type and level of benefits which may be available to you. These categories are as follows:

  1. Catastrophic Impairment;
  2. Non-catastrophic Impairment; and
  3. Minor Injury Guidelines.

The first category is “catastrophic impairment”.  To be accepted as catastrophically impaired, your injuries must meet a predetermined threshold of physical and/or psychological injury.  If you are deemed catastrophically impaired, you are entitled to the highest level and widest range of available benefits.

The second category is composed of those persons who have sustained severe injuries but have not reached the level of catastrophic impairment. The types of benefits available under this category are reduced, as are the level of benefits and the duration for which they are available for the injured person.

The final category is known as the Minor Injury Guidelines (the "MIG"). This category is new and was introduced as part of the changes to the SABS that came into effect in September 2010. A person who sustains an impairment that is found to be predominantly a minor injury may be subject to the MIG. Minor injuries include sprains, strains, whiplash, contusions, abrasions, lacerations, subluxation and partial thickness tears, amongst others.

If you are relegated to the MIG, do not despair, as there are ways in which you can get out of it in appropriate cases. This can be achieved by providing compelling medical evidence, along with a health practitioner’s opinion, demonstrating that the injured person has a pre-existing medical condition that will prevent the injured person from achieving maximum recovery from the minor injury if the injured person remains under the MIG.

8. What types of accident benefits can I get?

The benefits available to you under the Statutory Accident Benefits Schedule include:

  • Medical and Rehabilitation Benefits;
  • Attendant Care Benefits;
  • Housekeeping and Home Maintenance Benefits;
  • Caregiver Benefits;
  • Income Replacement Benefits;
  • Non-Earner Benefits; and
  • Lost expenses.

Medical and Rehabilitation Benefits

Medical benefits are intended to cover reasonable and necessary expenses incurred by the injured person as a result of the motor vehicle accident for:

  • Medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;
  • Chiropractic, psychological, occupational therapy and physiotherapy services;
  • Medication;
  • Prescription eyewear;
  • Dentures and other dental devices;
  • Hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices; and
  • Transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant.

If you are catastrophically impaired, you are entitled to $1,000,000.00 (combined limit with attendant care benefits), which amount is available for life. If you are non-catastrophically impaired, your medical and rehabilitation benefits will be capped at $65,000.00 (combined limit with attendant care benefits), available for a maximum of five years after the accident. Under the Minor Injury Guidelines, your available limits for medical and rehabilitation benefits are capped at $3,500.00.

Attendant Care Benefits

Attendant care benefits are intended to pay for all reasonable and necessary expenses incurred by or on behalf of the injured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility. Attendant care benefits are not available under the Minor Injury Guidelines.

If you have sustained a catastrophic impairment, attendant care benefits shall not exceed $6,000.00 per month, to a lifetime maximum of $1,000,000.00 (combined limit with medical and rehabilitation benefits). If your impairment is non-catastrophic, the maximum monthly benefit is capped at $3,000.00 per month and is available for five years following the accident or to a maximum total of $65,000.00 (combined limit with medical and rehabilitation benefits), whichever is exceeded first.

Despite the classification of your injury, you may not always be entitled to attendant care benefits. An assessment by a qualified occupational therapist or nurse may be required. An accident benefits lawyer at Goodman Halioua LLP will assist you in arranging for these and other necessary assessments to ensure that you receive your full entitlement and the maximum benefits possible.

Housekeeping and Home Maintenance Benefits

Housekeeping and home maintenance benefits are intended to cover reasonable and necessary additional expenses incurred by or on behalf of the injured person. These benefits will only be awarded where the accident results in a substantial inability to perform the housekeeping and home maintenance services that the injured person normally performed before the accident. These benefits are only available if you have sustained a catastrophic impairment, in which case they are available up to $100.00 per week, for life.

Caregiver Benefits

A caregiver benefit is available where the injured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.  The benefit will only be available if, at the time of the accident, the injured person was residing with the person in need of care and the injured person was the primary caregiver for the person in need of care and was not paid for such caregiving activities.  The person in need of care can be a minor or an elderly parent, among others.

These benefits are only available to catastrophically impaired claimants. The caregiver benefit is $250.00 per week for the first person in need of care and an additional $50.00 per week for each additional person in need of care. Caregiver benefits are available for two years following the accident. You will only continue to receive caregiver benefits after the two-year anniversary of your accident if you are suffering a complete inability to carry on a normal life.

The test to determine whether you are entitled to a caregiver benefit beyond the two-year anniversary of your accident is often rigorously fought by the insurance companies. Consult an accident benefits lawyer at Goodman Halioua LLP to fully understand your rights and ensure your entitlement is protected.

Income Replacement Benefits

Benefits to replace lost income are available up to a maximum of $400.00 per week. This applies regardless of the classification of your injury. You are entitled to income replacement benefits if you sustained an impairment as a result of the accident and any one of the following circumstances apply:

  1. You were employed at the time of the accident and, within 2 years following the accident, you suffer a substantial inability to perform the essential tasks of that employment;
  2. You were not employed at the time of the accident but you held employment for at least 26 weeks during the 52 weeks prior to the accident or were receiving employment insurance benefits at the time of the accident;
  3. You were not employed at the time of the accident but were at least 16 years of age or was excused from attending school under the Education Act at the time of the accident and, as a result of and within two years after the accident, you suffer a substantial inability to perform the essential tasks of the employment in which you spent the most time during the 52 weeks prior to the accident;
  4. You were self-employed at the time of the accident and suffered, due to and within two years of the accident, a substantial inability to perform the essential tasks of his or her self-employment.

Income replacement benefits are not payable for the first week following the accident. After the two-year anniversary of your accident, to remain eligible for income replacement benefits, you must demonstrate that you suffer a complete inability to engage in any employment or self-employment for which you are reasonably suited by your education, training or experience. The insurance company will often deny your income replacement benefits after the two-year anniversary of your accident claiming that you do not suffer a complete inability to engage in some employment or self-employment. This may be so even when you cannot return to your pre-accident employment.

Consultation with a Toronto accident benefits lawyer at Goodman Halioua LLP will ensure that you are made aware of your options and whether you have a case for income replacement benefits beyond the two-year mark.

Non-Earner Benefits

A non-earner benefit is available where the injured person suffers a complete inability to carry on a normal life due to and within two years of the accident and one of the following circumstances apply:

  • The injured person does not qualify for income replacement benefits;
  • The injured person was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident; or
  • The injured person completed his or her education less than one year prior to the accident and was not employed or self-employed after completing his or her education and before the accident, in a capacity reflecting his or her education and training.

The non-earner benefit is payable at the rate of $185.00 per week during the two years following the accident. A non-earner benefit is not available for the first 4 weeks following the accident and to anyone under the age of 18. Also, you will not be entitled to a non-earner benefit if you elect to receive an income replacement benefit or a caregiver benefit, if eligible for either.

Lost Expenses

The SABS provides benefits, other than those listed above, which deal with reimbursing expenses incurred by the injured party or a family member as a result of the car accident. These expenses include:

  • Expenses of visitors incurred due to visiting the injured person during their rehabilitation and recovery;
  • Transportation expenses;
  • Certain items damaged in the accident; and,
  • Lost educational expenses of the injured person.

The information provided above is not exhaustive. The type and level of benefits are case-specific, as is the determination of the appropriate category of benefits. Do not allow the insurance company to make this decision without obtaining a full and complete understanding of your rights. To learn more, please contact one of our accident benefits lawyers who will be able to assist you and guide you through this complicated process.