Written by Michael Sniderman
If you are injured in a motor vehicle accident in Ontario and want to sue the at-fault driver, there are two questions that you should keep in mind:
1) Are your injuries permanent and serious?
One of the first things a lawyer will want to know if you’ve been in a motor vehicle accident is whether your injuries are both permanent and serious. This is because of the threshold that exists in Ontario, which states that in order to be compensated for your pain and suffering, the injuries you have suffered as a result of the accident must have caused either:
(a) Permanent serious disfigurement; or
(b) Permanent serious impairment of an important physical, mental or psychological function.
This threshold comes from Section 267.5 of Ontario’s Insurance Act, R.S.O. 1990, c. I.8 and it means that if you only have a scratch on your arm or broke a nail, a judge will be unlikely to so much as lay an eye on your case.
On the other hand, if your injuries have prevented you from returning to the activities of your normal, pre-accident life and are unlikely to substantially improve in the future, you may meet the threshold and should keep reading.
2) Is it worth it?
Ideally, it would always be worth it to sue the at-fault driver, as he or she has caused pain and suffering in your life that should be compensated. However, Ontario has a statutory “deductible” of $36,540 on claims against at-fault drivers and vehicle owners, which applies for claims up to $121,799, as per Section 267.5 of the Insurance Act (although please note that these figures are current to December 31, 2015 and are increased each January 1st with inflation.)
This means that if your claim is greater than $121,799, the deductible will not apply and you will be able to enjoy your award in its entirety. On the other hand, if a judge deems your pain and suffering to be worth less than $121,799, you will never see the first $36,540, as it will be deducted from your total award. With this in mind, if you have a case worth $40,000, the best you could hope to receive is $3,460, and that’s without even considering the industry standard 33% contingency fee that your lawyer will have likely earned.
Using the same example, if a judge looks at your case but thinks it’s worth $36,000 instead of the $40,000 you have claimed, you will end up with nothing but empty pockets and may also be required to pay the defendant’s legal fees. In that situation, you might have been better off putting your energy toward recovery instead of spending years toiling in the litigation process.
If you think you have a case that answers “yes” to both of the questions above, feel free to contact one of our personal injury lawyers.
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