The roadways in our cities and towns are becoming increasingly busy not only with cars, buses, bicycles and motorcycles but also pedestrians. The population growth in urban areas, both within the Greater Toronto Area and outside of it, has greatly increased the vehicular and pedestrian traffic on our roadways. As a result, there has been a concerning increase in the number of pedestrians injured and killed each year in Ontario. In fact, in 2009 over 4500 pedestrians were injured as a result of motor vehicle accidents and 114 died in Ontario*.

Anytime you are injured in a motor vehicle accident, whether you were a driver, passenger, cyclist or a pedestrian, you have two sets of rights. These rights are referred to as accident benefits (or “no-fault benefits”) and a tort claim. Accident benefits are payable immediately to ensure quick access to necessary treatment and care, regardless of who is at fault for the accident. You may also have a right to sue the at-fault driver for your pain and suffering, loss of income, future care needs, housekeeping assistance and other out of pocket expenses against the at-fault driver’s insurance company.

Survivors of a pedestrian-car accident are often left with severe brain, spinal cord, or orthopaedic injuries. These injuries alter the victim’s ability to conduct his or her regular activities of daily living for the rest of their life. It will also likely leave the person unable to work for a period of time, if not their entire lifetime. The injured person will have substantial future medical and attendant care needs. The effects of these severe injuries are not only felt by the injured person but also his or her family members. A pedestrian accident impacts the entire family.

The cause of a pedestrian-car accident is not always clear. Was it the result of a driver not paying attention? Did poor signage cause the accident? There are numerous possibilities. The at-fault driver may also not have insurance or may be underinsured. In some cases, the injured pedestrian may be the victim of a hit and run where the identity of the at-fault driver is unknown. Nevertheless, the injured pedestrian can still make a claim against the uninsured/underinsured motorist provision of their own insurance policy or, if necessary, the publicly funded Motor Vehicle Accident Claims Fund.

The Toronto personal injury lawyers at Goodman Halioua LLP understand the significant and life-altering impact of injuries resulting from a pedestrian-car accident. We are also aware of the complexity of these cases in determining whether negligence caused or contributed to the accident occurrence. Our lawyers will thoroughly investigate the cause of the accident and develop a successful strategy to ensure maximum financial compensation is obtained from the insurance company. Contact us at (416) 367-4642 or toll-free at 1-855-GHPI-LAW for your free, no obligation consultation.

*Source: Ontario Road Safety Annual Report, 2009.

Accident Benefits

You should retain a lawyer to assist you with your claim for accident benefits without delay. There are certain time restrictions that you must meet to maintain your entitlement to accident benefits. Missing a deadline may prejudice your ability to obtain necessary accident benefits from the insurance company.

The applicable time requirements include:

  • You are to notify the insurance company of your claim for accident benefits within 7 days of your accident; and,
  • You have 30 days from the date of receiving the Application for Accident Benefits from the insurance company to complete, sign and return the Application to the insurance company.

Failure to comply with the above-mentioned timelines may result in an inability to claim benefits from the insurance company.

The insurance company may not provide you with the benefit, or the level of benefit, to which you are entitled. Further, there are circumstances where you must elect which benefits to receive. This is often a complicated process requiring the assistance of a Toronto car accident lawyer who can assist you in understanding these issues, your options and entitlements under the law. It is crucial that you do not make any election without first fully understanding your rights and entitlements.

A car accident lawyer at Goodman Halioua LLP can help you navigate through this critical but often complicated process to ensure that the insurance company does not take advantage of you.  We will make certain that the insurance company fulfills their obligations to you.

If you or a loved one has been involved in a car accident, regardless of whether you were a driver, passenger, cyclist or pedestrian at the time of the accident, you are entitled to accident benefits. If you have auto insurance, you are entitled to submit this claim to your insurance company. If you do not have car insurance, you are entitled to claim from the insurance company for the driver that struck you or any other vehicle involved in the accident. If there is no insurance available, you are entitled to claim from the publicly funded “Motor Vehicle Accident Claims Fund”.

Accident Benefits or “no-fault benefits” are provided under the Statutory Accident Benefits Schedule (“SABS”), which is made under the Insurance Act. The SABS frequently undergoes legislative revision, with the most recent changes being implemented on September 1, 2010.

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.

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.

Med-Rehab 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 in medical and rehabilitation benefits, which amount is available for life. If you are non-catastrophically impaired, your medical and rehabilitation benefits will be capped at $50,000.00, available for a maximum of ten 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. If your impairment is non-catastrophic, the maximum monthly benefit is capped at $3,000.00 per month and is available for only two years following the accident or to a maximum total of $36,000.00, 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 26 weeks following the accident and to anyone under the age of 16. 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.

After the two-year anniversary of your accident, you will only remain entitled to a non-earner benefit if you continue to suffer a complete inability to carry on a normal life. At that time, the non-earner benefit will increase to $320.00 per week.

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;
  • Funeral 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.

The Toronto accident benefits lawyers at Goodman Halioua LLP will work with you to ensure that your rights are protected and that you receive the maximum benefits.

Tort Claim

Accident Benefits are not designed to be compensatory in nature. Accordingly, you may have the right to sue the at-fault driver involved in your accident. If you have the right to sue, you must initiate your tort lawsuit within certain deadlines imposed by the law.

In the event of a motor vehicle accident, you ordinarily have two years from the date of the accident within which to commence a lawsuit. This may change in certain circumstances. You should consult a car accident lawyer at Goodman Halioua LLP to ensure your right to sue is preserved.

A tort claim is an action alleging that a civil wrong has been committed. The types of damages that may be available to the injured person include monetary awards 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, which will depend on the specific facts of your case.

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. 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 where your injuries were the result of a motor vehicle accident. This is commonly referred to as the “threshold”.

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 $30,000.00 of any award of damages for pain and suffering that does not exceed $100,000.00, be deducted from the portion of your total compensation attributable to pain and suffering. Similarly, a $15,000.00 deductible is applied to claims under the Family Law Act, unless the claim exceeds $50,000.00. Recently, the legislation in Ontario was amended to reflect that claims made under the Family Law Act for a death resulting from a motor vehicle accident would not be subject to the $15,000.00 deductible.

The legislation pertaining to auto 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 law in the area of auto insurance legislation in Ontario. We will be able to explain how the law will apply to the circumstances of your particular case and help you determine the best approach to ensure maximum financial recovery.