How car accident tort settlements work in Ontario

How Car Accident Tort Settlements Work in Ontario

Fact scenario: Mrs. A is a 63 year old woman living in Toronto, Ontario, and has just been involved in a serious car accident. She was rear- ended while driving along Highway 401 causing her vehicle to be thrown into the guardrail. She suffered a fractured hip and leg, concussion symptoms, and whiplash.

She comes to a law firm wondering what her legal options are and what the process for filing a claim is.

As mentioned in an earlier article, claims for car vehicle accidents can fall either into the accident benefit (AB) category or the tort claim, or both. Because of Ontario’s driver insurance scheme, everyone is entitled to some basic accident benefits through their own auto insurer.

Accident benefits and tort claims settlements in Ontario are often claimed together. In Mrs. A’s case, she and her family are rightly concerned that there will be some long-lasting limitations as a result of her accident.

The first step in dealing with the insurance company involves reviewing the insurance contract to see what extent of benefits may be available to Mrs. A, and also making the proper filings to receive all reasonably necessary accident benefits to which she is entitled. If successful, she will receive compensation for “reasonable and necessary” medical treatment and rehabilitation costs, help with care as well as some basic benefits for compensation of lost income. Most accident benefits policies only cover up to $400/week in in income replacement benefits which is why it is important to have an experienced lawyer to help you recovery any shortfall in lost income and future losses by pursuing your rights for all losses through a tort claim against the at fault motorist.

During this process, the insurance company and the law firm will work on getting records and assessments on the state of the injury and damages claimed. Let’s say that the medical records and expert assessments indicate that Mrs. A will suffer from difficulties with mobility due to the injuries to her leg and is diagnosed with chronic pain. After these assessments, the insurance company will pay out benefits which are commensurate to these injuries and her need for ongoing care.

It is important to hire a law firm to also do help you obtain any necessary second opinions or responding assessments, especially if you feel that the insurance company’s records are inaccurate or too limited. The legal team at Grillo Law can help you find leading medical experts qualified by the courts that can fairly review and report on your case.

Canadian Tort Law

Tort law forms a very important part of the Canadian legal system. It has at its foundation the compensation of injured parties for harm caused to them intentionally or unintentionally by another.

Tort law in Canada was inherited from English Tort laws. Judges over the years have built up the Tort law as we know it today. Because the law is based on precedence, it has changed over the years and continues to develop each year.

Personal injury is dealt with under Tort law. Under this law anyone who has caused you loss or damage liable and you can sue them for restitution.

Canadian Tort Law is divided into two segments, intentional Tort and Unintentional Tort.

Intentional tort is the most serious as it is a deliberate act aimed at causing harm to another. These acts will often result in criminal charges. To claim intentional tort, you must prove that the defendant purposely committed the act that gave rise to the loss.

It happens fairly frequently that the perpetrators of intentional tort cannot pay the compensation award. If this so, then victims can claim from regional or provincial victim compensation funds.

An unintentional Tort occurs as a result of negligence and if you’re making such a claim you need only prove that the defendant failed in his or her duty of care. These types of claims include claims for motor vehicle accidents, slip and fall accidents and product liability claims.

Both intentional and unintentional Tort claims may include personal injury and damage to property.

What is a Tort claim?

Tortum is a Latin word meaning “wrong”. A Tort claim, therefore, is a claim for compensation for a wrong that has been committed by one person to another. When you raise a Tort claim you seek financial compensation for your losses.

Torts include:

• Recklessness
• Negligence
• Assault
• Trespass
• Product liability
• Defamation
• Fraud
• Sexual assault
• Intentionally inflicting emotional distress

Tort claims are civil claims. Torts are not necessarily crimes, and while a wrongful act may be criminal, Tort claims remain totally separate from the criminal justice system.

If, for example, you were assaulted the criminal legal system might take action and sentence your assailant to imprisonment or a fine, but there would be no compensation paid to you. If you require compensation, you would have to put in a Tort claim through civil proceedings. In putting in your claim you could use the criminal conviction as supporting evidence.

We use a Tort claim to redress civil injustices that have resulted in physical, psychological, financial or reputational harm.

Tort law may be compared to contractual law, where one party sues another for breach of contract. The difference is that the obligation in contractual law is by common agreement, whereas the liability in Tort claims are state imposed.

Tort claims fall under one of two categories

• Intentional Tort claims
• Unintentional Tort claims

Both types of Tort claim can include damages to property as well as personal injury. They also frequently involve malfunctioning products or services.

What is a Settlement?

What is a settlement? At some point, both the insurance company and the injured plaintiff will want to agree on a settlement, or a lump sum payment that resolves the current claim. The law in Ontario says that you must wait one year before settling your accident benefits claim.

Many insurers are hesitant to settle their claims, because they want to see the plaintiff use their benefits and assess on that behalf to have a clearer understanding of the diagnosis, prognosis for recovery. Insurers may agree to longer term benefits or be more inclined to compensate you for a variety of factors, especially if they do not want to have to specially medically manage your recovery and claim. In the case of settlement, the insurance company would pay out up to the remainder of the available benefits in your policy in exchange for a release.

Tort Claim Settlements in Ontario

Tort claims are claims or law suits against the at-fault motorist and their insurer. A tort claim settlements in Ontario is available to you if you have sustained serious and permanent injuries. As well, any shortfall in the benefits provided by your accident benefits insurer along with any expenses and costs incurred from the accident can be recovered as part of the tort claim. If you have additional needs above and beyond what the basic insurance will cover, you may have grounds for a tort claim and should speak to a lawyer.

Tort claims can cover a variety of heads not covered under accident benefits claim including:

• Pain and suffering
• Loss of income
• Loss of competitive advantage
• Loss of opportunities
• Delayed entry into work
• Loss of handyman/working capacity
• Loss of guidance
• Care and companionship
• Loss of interdependent relationship
• Housekeeping expenses
• Medical care and expenses.

Efforts to Settle

A lawyer will advise you on the best legal direction for you. It is best for you and your medical practitioner and treatment providers to determine the optimal treatment and recovery scheme for you.

When a settlement is made, you must also sign a release. The release is consideration for the settlement cheque and essentially releases the insurance company forever, from further payout and/ or further legal liability or claims related to the current injury. In return you will get a lump sum payment. Settlement of an accident benefits claim will cover the remainder of your policy up to 5 years for your accident, unless your injuries are deemed catastrophic. Settlement of your tort claim is meant to cover your for all loses for the remainder of your life.

Some exceptions apply, where there is further aggravation of the injury (related to the initial tort), or where another claim is made against a new tortfeasor. For more information on this, please speak to a legal expert.
The process of recovering damages can be long and therefore it is important to have an experienced and dedicated legal team on your side, with ample resources to advocate on your behalf and facilitate an early and just resolution. Further, a strong firm will have established relationships with insurers and claims managers and strong references to leading experts and specialists who can help prove your claim. Here at Grillo Law we have over 30 years of experience and a proven track record in achieving the best results for our clients.

Types of Tort Claims

Tort claims are claims for compensation brought by a person who has suffered injury against another who has caused the loss. These are civil claims that cover all types of loss that do not include breach of contract. Tort law covers many of our daily interactions and circumstances. It includes product liability, vicarious liability and professional liability amongst others.

In Canada there are four types of Tort law, intentional and unintentional, strict liability and economic torts.

Intentional Tort Claims

An intentional tort claim is for losses incurred through the purposeful actions of another. Sexual assault, defamation of character and fraud all fall under this definition.

Quite often an intentional act that causes loss to another will result in criminal action because many of these acts are quite serious. While criminal charges may have the effect of punishing the offending person, it won’t compensate the injured for the losses incurred.

It is in the civil courts that you must pursue compensation through a Tort claim.

Unintentional Tort Claims

Unintentional Torts result from negligence. In our daily lives, each of us has the responsibility of ensuring that those around us are kept as safe as possible. We have a duty of care to our fellow citizens. If we fail to meet that duty, we can be found negligent in a Canadian court of law.

Here the courts use the measure of the reasonable person. If someone suffers loss or injury because of action you carried out or failed to carry out, the court will decide on whether a reasonable person would have acted any differently.

One of the most common unintentional tort claims involves car accidents. No driver deliberately rams their car into yours, but when they do, the accident is often the result of negligence. If you suffer an injury in the accident, you have every right to make an unintentional Tort claim.

Product liability and most personal injury claims fall under this section of the law.

To make a successful unintentional Tort claim you will have to prove that the claimant failed to meet the following;

• Duty of care – a reasonable person should have realized that the other could be harmed
• Standard of care – what would a reasonable person do under similar circumstances?
• Causation – did the act or omission cause the harm?
• Remoteness – should the defendant have reasonably foreseen that the actions might cause the harm?

You can also claim for damage to property under both intention and unintentional Tort claims

Strict Liability Torts

Under strict liability the tortfeasor or bad-acting party is held automatically at fault. Strict liability torts are quite rare. They may include injuries caused by one’s pet. One derivative of strict liability is vicarious liability. This is where an employer is liable for the torts committed by its employees, during the course of their employment. Vicarious liability is frequently pleaded in negligence claims against institutions.

Economic Torts

Economic torts protect trade. They seek to regulate economic and competitive activity. They include such torts as trade libel, conspiracy and negligent misrepresentation.

Settling Tort Claim in Ontario

Prior to suing a tortfeasor, you must know the full extent of the pain and suffering you endured. It is also imperative that you know how this pain and suffering is going to impact your future. This will give you an idea of the amount of compensation you should seek. Generally, a plaintiff can sue a tortfeasor for many issues such as vehicle damages, medical treatment bills, any possible permanent disability, lost wages, psychological pain, and other forms of damages.

It is important to mention that you have two years to file your tort claim, which is why it would be unwise to pursue a claim if you are unprepared. Consider hiring an experienced lawyer with a wealth of knowledge regarding personal injury law. An experienced lawyer could mean the difference between getting the amount of compensation you deserve and getting nothing.

Gathering the facts and all pieces of relevant evidence is important, and the success of your case depends on it. This is the main reason you should acquire and preserve information related to your case. You can begin by taking pictures of the accident scene (if possible) and preserve evidence of your medical records and bills. Your lawyer will use these documents as part of the evidence to fight for your right to fair compensation.

What Is the Process for My Legal Claim?

Let’s say Mrs. A chooses to file a tort claim for further damage. What would the process look like?

1. Pleadings
   The legal claim or law suit is commenced when our firm helps Mrs. A file a Statement of Claim with the appropriate court. These will also be served (delivered) to the defendant party. In response, the defendant will deliver a Statement of Defence.
2. Discovery (Documents)
   At this point, the parties will exchange evidence and documents. Grillo Law, with Mrs. A’s permission, would file all medical and financial documents in order to prove her injuries, her prognosis, and the financial losses she suffered as a result.
3. Examination for Discovery
   The defendant’s lawyer may question you on the accident and your injuries. Grillo Law will have worked with Mrs. A to properly prepare her for questioning and will be present throughout the whole process. At this point, we may also cross examine the defendant.
4. Mediation
   At this point, cases proceed to mediation, where the parties meet with a neutral third party to try to reach a mutually agreeable settlement. Many cases settle at this point and if appropriate, mediation can result in the best results while avoiding further costs of trial.
5. Pre- Trial Conference
   Let’s say that the settlement of terms are unreasonable and insufficient for Mrs. A’s injuries. If this were the case Grillo Law may recommend that the case go to a pre- trial conference stage and trial. The parties meet with a judge who tries to help them reach a settlement. The purpose of this conference is to clearly set out the positions and issues of each party. The judge also reviews the case and sets out some expectations for trial.
6. Trial
   While cases rarely proceed to the trial stage, there remains the possibility that some unique cases will proceed to this stage. At this step, Mrs. A’s case will be determined before a judge in the courts on a balance of probabilities. Grillo Law as a team of experienced trial lawyers who will be ready to advocate for you.

Costs Consequences of Failing to Accept a Reasonable Offer to Settle

It is recommended to follow your lawyer’s counsel regarding settlement offers. Sometimes, failure to accept settlement offers could mean you will receive a lower award at a court trial. In this case, you may be responsible for part of the defendant’s legal expenses. This doesn’t mean you should accept every settlement offer, no matter how low it is. Your lawyer will help you calculate the average amount of compensation you should be asking for and whether or not the settlement offer is reasonable. If the settlement offer is reasonable, it is in your best interest to accept it.

In a recent case (Magnone v. Dawson), Ms. Magnone (the plaintiff) sustained injuries in an accident where the accused admitted fault for the incident. Before the court trial, the insurance company offered to settle the claim for $135,000 for the victim’s lost income, pain & suffering, and contribution to part of her legal fees. The plaintiff declined this settlement offer and decided to take the matter to court.

However, the jury awarded a much less amount of compensation at a court trial. As a result, the judge ordered that the plaintiff should pay a hundred thousand dollars ($100,000) which was part of the insurance company’s legal fees for having to handle the matter at the court.

How Can Grillo Law Help You?

It is highly recommended to choose an experienced law firm like Grillo Law, as we can advocate on your behalf and arrive at a settlement that is right for you and your family. We will help you navigate through the legal process every step of the way and retain any necessary experts to prove your claim. We will not charge any legal fees unless you get paid.

Do not hesitate to call us today!