Tort Civil Litigation Lawyer

Tort Civil Litigation Lawyer

Effective January 1, 2020, the amount for claims for civil actions under the simplified procedure has increased from $100,000.00 to $200,000.00. More importantly, parties to this new simplified procedure action cannot deliver a Jury Notice in most circumstances. In this procedure counsel must litigate matters within tight timelines, which includes a time set Trial format. In civil actions involving motor vehicle accidents, mediations can be required anywhere in Ontario pursuant to section 258.6 of the Insurance Act. The Mediation allows the plaintiff to determine whether to resolve issues or prepare for Trial. It is expected that Pre-Trial Conferences will be held within 180 days from the delivery of a Notice of Readiness for Pre-Trial Conference. Costs recovery is limited to $50,000.00 plus HST, which is not effected by Offers to Settle under rule 49. The Plaintiff’s Affidavit should be focused on documentary evidence. Experts will be needed to be retained that will assist the Court. Counsels should agree to a Trial Management Plan at least 30 days before Pretrial Conference. The registrar will put the action on the trial list after pretrial conference is finished. Unlike juries, judges are aware of the deductible that applies to motor vehicle accidents in Ontario. 

The law in Ontario allows for the victims of negligence to be restored back to their pre-accident level of functioning and enjoyment of life. 

As a client, if you become a victim of a major vehicle collision and there is minimal negligence on your part, then you can fight for damages for all you’ve lost due to the collision. 

As a victim it should not be your responsibility to deal with the hassle of the financial hardships of the injury. Your medical fees, rehabilitation and any other coverage that you require should be given to you by the opposing side. General damages include compensation for pain and suffering and loss of enjoyment of life. However, there is a maximum amount established by the Supreme Court of Canada, nowadays the estimated figure is around $350,000.00 in general damages. Pain and suffering damages: these compensate you for the change in your quality of life, taking into account the change to your health, your pain levels, the activities you cannot do anymore, how your emotional health and relationships are impacted, etc. In car accident claims, there is no recovery for general damages unless the claim meets a “threshold” – permanent and serious impairment or disfigurement. 

This is reimbursed for the adjustments you have had to deal with since you’ve suffered from the collision. For example (your mental health, social relationships have been affected). Also, the money you’ve spent yourself; this reimburses you for costs you’ve had to endure because of the collision like having to see your family physician, parking fees, physiotherapy costs, medication, and destruction of employment earnings. This is a livelihood that has disappeared or will be gone due to the collision. As a victim, you have a right to every penny regarding imminent earnings that will not be forthcoming or to a figure that is largely recoverable for what you have lost in your chance to capture earnings in the years to come or to be vying in the ever-evolving employment environment. 

It is your right to receive reparation for being unable to undertake your day to day household duties or lawn work in the days that have passed as for the remainder of your days, as an acceptable figure to employ staff to do this work should your trauma disallow you from performing these duties yourself. Subsequently, concerning medical care, it is your right to receive reparation for full medical assistance you will require for the rest of your life due to the trauma you have suffered. As a client, if you’re severely hurt, your given the absolute legal right to seek legal action against the opposing individual that is responsible for your ongoing hardships and the daily trauma you have been enduring. Out of pocket expenses: this compensates you for money you have already spent due to the accident or your injuries such as parking expenses to see your doctor, physiotherapy costs, pain medication, etc. Loss of employment or business income: this is income you’ve lost or will lose because of the accident or your injuries. You are also entitled to all future income loss, or an amount to account for the real and substantial possibility of losses to your ability to earn income in the future or be competitive in an open job market. Housekeeping losses: you are entitled to compensation for your inability to do your housekeeping chores in the past and for the remainder of your life, including a reasonable amount to hire people to do these chores for you if your injuries prevent you from doing them. You are entitled to compensation for all medical care you will need for the remainder of your life as a result of your injuries. Economic Losses: Recovery of lost income and loss of earning ability is limited to 70 per cent of your gross income loss, beginning 7 days after the accident until trial. After the trial date, recovery will be based on 100 per cent of your gross income loss and loss of earning capacity. Amounts received in the form of accident benefits from other sources, such as workplace disability plans, will be subtracted from any such awards or settlements. The defendant’s insurance company has the right to information about your insurer and claim for accident benefits, and your medical treatment as a result of the accident. You may also be required to undergo an examination by the defendant’s health professional. A failure to comply with these procedural and disclosure steps may result in a cost penalty against you. 

Compensation you may receive for pain and suffering is subject to around $37,000.00 deductible. It is very important to remember that any court action must be started within 2 years from the date of the accident. However, this is subject to a discovery rule. To be able to sue for pain and suffering and health-care expenses, the injury must result in death, permanent serious disfigurement, or permanent serious impairment of an important physical, mental or psychological function. In addition, family members may sue for the loss of companionship, care and guidance they have suffered as a result of injuries to you under the Family Law Act. These claims are subject to around $18,000.00 deductible. However, the deductible will not apply to Family Law Act claims for fatal occurrences. Ontario has a “loser pays” system, meaning that the loser pays a part of the winner’s legal costs. If you settle your case or are successful at trial, then you have won your case.


Who Should You Sue? 


Insured Motorist 

An insured motorist, under section 224 of the Insurance Act, is defined as a person insured by a contract and every person eligible to receive statutory accident benefits under that contract. If you were injured in a motor vehicle accident, you would normally sue the at-fault insured motorist and recover damages from their insurance company. 


Uninsured Motorist  

An uninsured motorist, under section 264 of the Insurance Act is defined as when neither the owner nor driver of the vehicle has bodily injury and/or property damage liability insurance. In the case where an insured person is in a motor vehicle accident and the at-fault party does not have insurance, then the insured person may recover damages from their own insurance company. 


Underinsured Motorist 

Underinsured automobile coverage is available in the case that the at-fault party’s coverage is lower than the claimant’s own coverage or the $200,000 limit for identified motorists. The claimant’s damages must be over the available limit of coverage for underinsured coverage to be available. Underinsured coverage is an optional coverage that is provided only if the 44R Family Protection Coverage is purchased. It is becoming a more common coverage in Ontario. If the underinsured coverage is available to the claimant, then they may recover damages from their own insurance company. 


Unidentified Motorist 

An unidentified motorist, under section 265 of the Insurance Act, is defined as when neither the owner nor the driver of the vehicle can be properly identified. The Ontario Automobile Policy requires insurance companies to provide up to $200,000 of coverage for unidentified motorists. For example, if you have been in a motor vehicle accident with an unidentifiable driver or a stolen car, you can receive up to $200,000 from your insurance company for damages. However, you must take all reasonable steps to identify the motorist before trying to recover damages from your own insurance company.  


When Should You Sue? 


General Limitation Period 

Generally, under section 4 the Limitations Act, you have 2 years from the date the cause of action was discovered to sue the other party. The two-year limitation applies in Ontario to most claims resulting from a motor vehicle accident. There are, however, some exceptions. 


Uninsured Motorist  

For uninsured automobile coverage, Regulation 676 section 6(2) of the Insurance Act states that the insured claimant needs to give the insurance company notice of the claim within 30 days of the accident or as soon as practicable after the accident. Under section 6(3), the insured claimant also needs to give the insurance company all proof of the damages and loss. Under section 8(2), the insured claimant must file their claim against their insurance company within one year of the accident for damage to their automobile or its contents. Under section 8(3), the insured claimant must file their claim against their insurance company within 2 years of the accident for bodily injury or death. 


Underinsured Motorist 

For underinsured automobile coverage, OPCF 44R sets out the limitation period. Under section 17, the insured claimant may commence a claim within 12 months of when they knew or ought to have known that the at-fault party’s insurance would not be enough to cover them. Notably, however, this limitation period does not bar the insured claimant from brining an action within 2 years of the accident. 


Unidentified Motorist 

For unidentified automobile coverage, section 3 of Regulation 676 applies. Section 3(2) states that the insured claimant must report the accident to the police with 24 hours of the accident or as practicable after the accident. Section 3(3) states that the insured claimant needs to give the insurance company a written statement with the details of the accident within 30 days of the accident or as soon as practicable after the accident. According to section 3(4), the details of the written statement need to include if the unidentified motorist was at-fault in the accident, if the claimant suffered bodily injury or death, and if any property was damaged. Section 3(5) also states that the insured claimant needs to make their automobile available for inspection by the insurance company. 

Call Sanjeev Gupta of Gupta Law Firm at 416-999-6665 for help pursuing a civil litigation action in the Ontario Superior Court of Justice.