Getting injured in an accident is never fun. You may have to worry about your injuries, insurance premiums, the costs associated with fixing your car, going to treatment, transportation, and what feels like a million other things. Then to add on to that stress, you may have also now become involved in a lawsuit as a result of the incident.
Lawsuits are confusing and complicated. Car accident lawsuits can be especially complex since there are usually two separate ‘lawsuits’ going on at the same time – your tort and Accident Benefits (“AB”) claims. This blog touches on AB claims but will talk mostly about tort claims and what you can expect from them.
Accident Benefits (“AB Claims”)
Ontario has a ‘no-fault’ insurance system designed to help victims of motor vehicle collisions achieve recovery from the physical and psychological injuries they have suffered as a result of a motor vehicle collision.
This system’s main principle is that, even if you are 100% at fault for the accident and your injuries, you are still entitled to some form of assistance to help you recover from your injuries in the form of Accident Benefits as outlined in the Insurance Actand the Statutory Accident Benefits Schedule regulation enacted under that Act.
These benefits can help pay for medical treatment, like physiotherapy, massage, and psychological counseling, among many other forms of assistance. They can also help you financially if you are unable to work, by providing income replacement benefits to those who were working before the accident and stopped working because of it, or non-earner benefits to those who were not working at the time of the accident. These are only a few examples of the benefits you may be entitled to from AB.
Accident Benefits are only available to victims of motor vehicle collisions, and not for other types of accidents that result in injuries.
What is a Tort Claim?
The tort claim is the civil lawsuit you may become involved in if you are involved in a motor vehicle collision or any other incident where you suffered an injury or loss as a result of the fault of someone else – including car accidents, slip and falls, dog bite incidents, and medical negligence, etc.
If you were involved in a motor vehicle collision, you would likely have both a tort claim and an AB claim, however if it is the other types of accidents, then you would likely only have a tort claim.
A tort claim is a claim against the other individual responsible for the negligence which caused your injuries. This can include the other driver that failed to follow the rules of the road – causing a collision, the property owner who forgot to salt his/her walkway or to warn and/or remove a danger to visitors such as a spill on the floor, or any other person who is responsible in law for your injuries.
The steps involved in a tort claim are as follows:
- Pre-Claim Phase:
This is when you retain a lawyer, discuss the facts of your case, and collect all the information you can before starting a lawsuit. This includes finding the names and addresses of the parties responsible for your injuries, and sending them formal notice of your intention to start a claim – there may be very short legal deadlines (“limitation periods”) as to when a notice letter has to be given to a party – as short as 10 days. Failure to do so within the time periods can jeopardize your case.
- The Pleadings Phase:
- This phase begins with the issuing and filing of a “Statement of Claim” which sets out what the incident was and what you are asking for. This Statement of Claim must be issued and filed with the court in the jurisdiction related to the incident generally within two years of the date that the loss or injury was discovered. There are many limitations and exceptions to this general time period and it is important to consult a lawyer because failure to comply with these limitation periods can result in your entire case being dismissed.
- The Statement of Claim has to be “served” on the defendants within generally 6 months of it being issued. This involves ensuring that the defendant received the claim and is aware of what you are claiming.
- The defendants will have to reply to your Statement of Claim with a Statement of Defence. They must do so within 20 days after being served with the claim. Again, there are many limitations and exceptions to this rule. If a defendant does not respond in this time frame, they can be ‘noted in default’ which means that the plaintiff can ask the court to note that they haven’t responded and then the court can make judgement against the defendant in their absence.
- The Discovery Phase:
- Generally, the first step is to look for all evidence you have related to the case, and to enclose them in an “Affidavit of Documents” which is provided to the other parties in the lawsuit.
- The second step, is to participate in an “Examination for Discovery”. This is when you will be questioned by the other lawyer about anything related to the incident. Your lawyer will be present during this questioning and can refuse inappropriate questions, but generally, you have to answer the questions yourself, not your lawyer. Your lawyer will also have a chance to question the defendants in the same manner.
- The third step involves continued discovery and productions. At your Examination for Discovery, you will notice that your lawyer will often give “undertakings” in response to the other lawyer’s request for certain information. This is a promise to attempt to provide the information requested to the best of your ability. The parties will continue to search for more evidence and provide it to each other.
- The Mediation Phase:
In some jurisdictions, this phase is mandatory, while in others, it is just optional. This phase involves having all the parties attend a “mediation”. A mediation is a meeting with all the parties in the presence of a mediator, whose job is to facilitate and encourage the parties to “settle” the case. Settling means that all the parties will agree to stop the lawsuit, often in exchange for a sum of money. The vast majority of all lawsuits end in a settlement.
- The Pre-Trial Phase:
If the case still has not settled by this time, the pre-trial phase is meant to help the parties prepare for a trial. The pre-trial is a meeting with all the parties in front of a judge. The Pre-Trial is when the parties will get a chance to narrow the issues to be dealt with at trial. This judge will not be the judge at trial.
- The Trial:
This is the final step of the lawsuit where the lawyers will argue in front of a judge or jury to convince them of their own client’s case. This often results in a judgement in favour of one party of the other.
Some Trial judgments are appealed to higher courts, which can review the decision made in the lower court. The highest court of appeal in Canada is the Supreme Court of Canada.
While those are the general steps in a tort lawsuit, the actual events that take place vary from case to case. Different cases may settle at different points in this process. There are also “motions” which can occur at almost any time in the process after the Statement of Claim is issued. A motion is when a party asks the court to make an Order about a wide list of things in the lawsuit, ranging from asking for an exception to dismissing or giving a final “summary” judgment on a case altogether.
As mentioned earlier, settlements are the most common way lawsuits are resolved.
This means most lawsuits never go to trial and are resolved without a court judgment. This is because going to trial is costly and risky. You may take your case to trial and win but the costs associated with doing so, including lawyer fees and other costs such as disbursements, you may end up netting less than you would have had you just settled out of court.
As for risk, no matter how confident you are in your case, there is always a chance that the adjudicator will disagree and have a different view of the facts and the correct law. This means that you may end up losing at trial and getting nothing and on top of that be responsible for paying the legal costs of the other party – a cost that can easily rack up in tens of thousands of dollars or more.
Who Pays for What?
A common question many people who are involved in a lawsuit have is: If we are successful at trial or in a settlement, does this mean that the person we are suing will pay out of their own pocket?
The answer to this question a lot of times depends on whether the defendant is insured or not. In most cases, it is the insurer of the defendant that has a duty to defend them in the lawsuit and pay, usually up to the insurance policy limits, the judgment or settlement that may result from a lawsuit. This is also that case where the defendant has property or other types of insurance.
In Ontario motor vehicle cases where the defendant is not insured, there is a Motor Vehicle Accident Claims Fund that may be available to victims to provide compensation for their injuries and losses.
If you are looking to start a lawsuit for an injury or loss you have suffered and need help navigating this complicated process, please contact our team at JEWELL RADIMISIS JORGE LLP for a free initial consultation at (800) 715-1082.