Motor Vehicle Accident Claim

YOUR MOTOR VEHICLE ACCIDENT CLAIM

The purpose of this memorandum is to provide you with some important general information, whether or not we are retained to prosecute a claim for injuries sustained by you or a family member in a motor vehicle accident. Please also see our memo #35 as to changes in the Insurance Act effective October 1, 2003.

1. Limitation

The limitation period under the Highway Traffic Act for commencing a claim is the two year period after the accident. An action by you for damages for personal injuries will probably be barred if you commence it on or after the second anniversary of the accident. There are some circumstances in which the limitation can be avoided, but no-one should delay commencing an action in reliance on them.

There are some other time periods of which you should be aware contained in Section 258.3 of the Insurance Act. The most important of these is the requirement to serve notice of your intention to claim on the potential defendants, i.e. the driver and owner of the other cars, within 120 days of the accident. Failure to do so will probably not prevent your claim, but makes it more expensive later to proceed, because a court order authorizing the claim must be obtained.

2. Statutory Accident Benefits (SAB)

Your own insurer is required to pay accident benefits. You should by now have the application forms and be following through with your application for such benefits, which include loss of income, medical, rehabilitation, and homemaker benefits for the period during which you are unable to carry out your normal work and household activities. The loss of income benefits are not payable for the 7 days after the accident, and are on a scale of 80% of your net pay. Other insurance benefits, like employment disability and sick benefits, must be used up first. One of our lawyers is experienced in dealing with disputes about SAB.

3. Property Damage

It is generally not worth your while to involve lawyers in assisting you in your claim for damage to your vehicle. Your own insurer should of course be involved here. There is an arbitration procedure available if you are not happy with the insurer’s settlement proposal.

4. Limitations on Damages

You are entitled to claim against the third party all of your economic loss arising out of the accident, which usually entails lost income, but can include heads of damage like lost earning capacity or shortened working life. During the period before trial of your court action, you can only obtain 80% of your net income (i.e. if you received SAB, then you get nothing more). This obviously encourages early commencement of litigation, which has pluses and minuses. If we are retained, this issue should be considered in our discussions.

Damages for pain and suffering are subject to two impediments. The first impediment is that a claim for such damages is not allowed unless you have suffered permanent and serious disfigurement or a "permanent serious impairment of an important physical, mental or psychological function". The second impediment is that there is a deductible amount of approximately $15,000 against any damages awarded for pain and suffering.

5. Our Services

If there is a possibility of a law suit against the third party, then you are well advised to hire us to complete some searches and deliver certain information to the potential defendants and their insurers within the first 3 or 4 months after the accident, i.e., to fulfil the requirements of Section 258.3 of the Insurance Act and Regulations thereunder. Both Bill Comery and Greg McConnell of our firm are experienced in personal injury litigation, including motor vehicle accident claims. Do not hesitate to call them if you have any questions.

Thank you for consulting us with respect to this incident.

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Law Offices of Fleury, Comery LLP
215 Morrish Road, Suite 104, Scarborough, Ontario, M1C 1E9
Office: (416) 282-5754 Fax: (416) 282-9906
E-Mail: thefirm@fleurcom.on.ca

Updated: January 2007