Personal Injury Claims in Ontario: What You Need to Know
After a lull in 2020 and 2021, personal injury claims in Ontario are rising again. If you or a family member have recently suffered an injury, you may wonder what your rights are and what options are available. Here’s what you need to know about personal injury claims and what to expect if you take action following an injury. It’s important that you seek legal representation as soon as possible to ensure your rights are upheld and you get any compensation to which you’re entitled.
The Right to Sue for Personal Injury Claims
A personal injury is damage or harm to your body or mind caused by another individual or an organization, like a company that manufactured a defective product. Personal injury claims are part of Canadian tort law, and as such, your having been wronged permits you to pursue a lawsuit, should you desire to do so. Tort law in Canada is governed by both national and provincial laws, as well as tribal laws in some locations.
Victims of personal injury, including those hurt through negligence, are entitled to file a personal injury claim for financial compensation. In fact, proving negligence is a key element of your legal case and an area your lawyer will focus on.
In Ontario, personal injury claims often result from many of the same types of incidents. These include:
- Motor vehicle accidents
- Bicycle and pedestrian accidents
- Medical malpractice
- Dog attacks and bites
- Slip-and-fall accidents
- Food poisoning
- Negligent care of vulnerable people
- Defective products and faulty equipment
- Sports injuries
- Workplace illness and accidents
In these cases, the victim is usually not at fault for the injury. Rather, someone else either intentionally or negligently caused the injury. In the worst instances, the victim dies, and the family of the deceased decides to pursue a personal injury claim.
The decision to file a lawsuit often stems from the serious or long-term nature of the injuries involved. These include:
- Disfigurement or amputation
- Traumatic brain injury
- Spinal cord injury
- Permanent disability
The accident victims in these situations frequently have had their lives turned upside down. They may not be able to continue in their chosen career or enjoy activities in which they previously participated.
Gathering Evidence in Personal Injury Claims
In order to prove negligence and receive compensation in a personal injury case, you must have evidence. Your lawyer will gather evidence for you, but you can help by documenting as much as possible on your end.
What kinds of evidence is helpful?
- Police reports
- Accident scene photos or videos
- Car mechanic reports
- Accounts of eyewitnesses
- Medical records
- Expert witness opinions
- Accounting receipts or bills
- Insurance documents
Don’t get rid of anything related to your accident or injury, especially photos on your mobile phone or communications from the defendant. When you visit a doctor or specialist, have them document everything in writing for your record, and ask them to photograph any visual evidence of injury, like bruises, deformities, burns, etc.
Negotiating with Insurance Companies
If you or a loved one have had a personal injury, it’s wise to understand your options and the legal process from the start. In each instance, it’s also smart to have a personal injury lawyer representing you, especially if you are still recovering from an accident or have been left with injuries that affect your ability to function as before.
For most people, negotiation is the first step in trying to settle a personal injury case, and it’s usually the most straightforward. With this option, you and the other party try to arrive at a compensation amount that is agreeable to you both.
Your personal injury lawyer can handle the back-and-forth of the negotiations for you. Normally, that involves dealing with an insurance company. Your lawyer will ask for a certain amount for damages, and the insurance company will usually counter with a lower offer.
Insurance companies are notorious for wanting to pay as little as possible in personal injury cases. Therefore, it’s crucial to have a personal injury lawyer working with you to help you maximize your settlement.
The Personal Injury Claims Process
If you are not able to come to an agreement via negotiation, a lawsuit is often the next step. However, in Ontario, you must first attempt to settle the matter using mediation.
A mediator is a neutral third party who can help you and the liable parties reach an agreeable settlement. In most instances, you would be represented by your lawyer in mediation, while the other party would have a lawyer or insurance adjuster present. Prior to beginning, both parties agree to follow a specific set of alternative dispute resolution (ADR) rules.
Usually, offers and counter-offers pass back and forth until an agreement is reached on compensation. It’s not uncommon for multiple mediation sessions to be required before an acceptable solution is found. If an agreement cannot be reached in mediation, you have the right to a trial as the next step.
When engaging a personal injury lawyer, it’s important to find someone who also works as a trial lawyer in case you wind up going to court after a failed mediation attempt. You must be within the statute of limitations — generally two years in Ontario from the time the injury occurred or was discovered — in order to file a lawsuit in civil court. There is no statute of limitations for criminal cases should the government at any point decide the case constitutes a criminal one.
Before you proceed with discovery (evidence) and go to court, your lawyer will file a statement of claim denoting your injuries and who you believe is the responsible party, as well as what you are seeking in compensation and why. The liable parties will then reply with a statement of defence, typically offering denials or defences of their actions.
Your lawyer will have to establish all four of these facts in a trial:
- The defendant (the party who injured you) had a duty of care to you, the plaintiff. This might be a duty to drive responsibly at all times, for example.
- The defendant violated or breached their duty of care either accidentally or intentionally. For instance, the defendant drove under the influence of alcohol and was driving in the wrong direction on the highway.
- You, the plaintiff, suffered an injury resulting from the defendant’s breach of duty of care, e.g., a spinal cord injury when the defendant hit your vehicle.
- There is causation between your injury and the breach of duty of care. In the example used above, the injury would not have occurred had the defendant not been driving to endanger others.
Evidence, as discussed above, may be submitted to support your claim and the amount you are requesting in compensation. You and the defendant, as well as other witnesses, may be called on to give further evidence.
Personal Injury Compensation and Damages
There are two types of compensation that may apply in any given personal injury scenario:
- Pecuniary damages – quantifiable damages, to cover the costs of medical expenses, lost income, and litigation expenses
- Compensatory or general damages – compensation that is more difficult to quantify, such as for pain and suffering
Pecuniary damages are easier to calculate because they’re reimbursement for items for which you have receipts or invoices. They are then further adjusted by a rate set forth by the Ontario Rules of Civil Procedure.
Compensatory damages, on the other hand, are harder to figure. They are usually calculated based on the seriousness of the injury and how radically it has affected the victim’s life, as well as on previous cases of a similar nature (aka common law). Is the victim no longer able to play sports? Has their appearance been significantly altered? Have they suffered psychological damage, like post-traumatic stress disorder (PTSD)?
Have there been some very high damages awarded in Ontario courts for personal injury cases? Yes, there have been, including:
- MacNeil v. Bryan et al – C$18.4 million
- Marcoccia v. Gill et al – C$16.9 million
- Sandhu v. Wellington Place Apartments et al – C$14.2 million
Limits in Personal Injury Lawsuits
It’s important to remember that there is a time limit involved in filing a personal injury lawsuit. The statute of limitation is two years from either the time you were injured or the time you discovered an injury.
Perhaps you have been using a product that has a harmful chemical in it for several years. You may have begun feeling ill a year ago but only confirmed what caused the illness last month. Therefore, the countdown for the statute of limitations began last month, not a year ago.
You should be aware that non-pecuniary damages (general damages) are capped in Ontario. While the amount adjusts roughly every year or two for inflation, it’s currently under half a million Canadian dollars. Furthermore, you may be assessed a statutory deductible that reduces your compensation if it is below a certain threshold.
There are instances where the victim played a role in their injury. This is known as contributory negligence. For example, you may have knowingly used a defective item that caused you injury. While the defect was the primary cause of your injury, your participation in the injury may reduce the amount of compensation you are entitled to.
Negotiation, mediation, and litigation in a personal injury case can take a long time, and there may be many nuances in your personal injury lawsuit for which an experienced personal injury lawyer will be essential. What does a personal injury lawyer do?
- Assist with determining what amount of compensation is appropriate
- Help you negotiate with the other party after a personal injury
- Represent you in mediation sessions prior to litigation
- Represent you in a trial if you file a lawsuit
- Manage paperwork, forms, and fees related to the above
- Gather evidence for a court trial, including eyewitnesses and expert witnesses
Having a seasoned lawyer on your side not only helps you achieve the best possible outcome no matter which option you choose following an injury; it also lets you recover and get your life back on track to the degree possible.
Contact Allan Rouben, a Toronto Expert in Personal Injury Law
Have you or a family member endured a personal injury? Don’t let the statute of limitations run out, and don’t feel you need to settle for less than you’re entitled to by law. Allan Rouben is an experienced Toronto personal injury lawyer who can help you recover what’s owed to you. Your first consultation is absolutely free to see where you stand. Call Allan’s legal team today at 416-360-5444 or reach out online to schedule your appointment.