Car Accident Injury Claim in Ontario - Avanessy and Giordano LLP. (2024)

When it comes to car accident injuries, how long does a claim take to settle?

Whether it’s you or a loved one who has been injured, there are certainly a lot of questions concerning accident lawsuit settlement.

The average period for car accident settlement in Ontario may take from a few months up to a few years.

The time frame varies because each case is different. However, the average period for most personal injury claims is 1.5 – 2.5 years. In cases of more complex factual or procedural circ*mstances, it may even take longer to reach a resolution.

There are four considerations that may affect the timeline of your car accident injury claim settlement:

1. Type of Injury: Fractures and other injuries that may be simpler to assess may make it easier to assess your claim’s value. Injuries that are not as complex or serious have a predictable recovery time, as well as any long-term effects that the injury might cause.

1. Return to Work: If you have already returned to work after being injured or were not working/employed at the time of the injury, it may be easier to settle your case more quickly. This is because there would be no need to analyze the total loss of income caused by the injury.

1. Permanent Injuries: Ontario’s Insurance Act only allows the injured to file charges for pain and suffering due to a car accident if the injured has permanent injuries. A lot of injuries take longer to observe and may, thus, lengthen the case.

1. Having a Lawyer: It’s better to have a lawyer early on. In most cases, injured parties should have a lawyer involved soon after the accident. Doing so increases the chances of settling directly with an insurance company.

Step 1 – Understanding Different Types of Claims

There are two different types of claims that can be filed by injured parties or their family:

Lawsuit

If the injured party is not the one at fault for the collision, a lawsuit can be filed against the driver at fault. The grounds for filing a car accident lawsuit successfully are:

• Proving that the other party did something illegal or untoward (driving under the influence, texting while driving, etc.)
• Proving that the other party failed to do something they should have done, such as stopping at a red light

Proving that the party at fault’s irresponsible actions caused the victim to have serious and permanent injuries is the first step in filing a successful injury lawsuit. If the vehicle of the at-fault driver is borrowed, the owner of the vehicle will likely (also) be responsible for the collision and liable for damages.

Accident Benefits

An injured person, regardless of their culpability in the collision, is entitled to accident benefits. In a car accident injury, the person’s insurance company is considered their accident benefits carrier.

Passengers or pedestrians who do not have insurance, however, may still be entitled to benefits from alternative insurance companies (e.g. the at-fault driver’s insurance policy, their spouse’s insurance policy, etc.). Accident benefits may include the following:

• Weekly Disability Benefit: This includes benefits for non-earners and those who lost a source of income due to the injury
• Medical Benefit: This includes medical costs such as treatment and rehabilitation
• Attendant Care Benefit: Benefits for those who require the services of a caregiver due to their injuries

The eligibility of each person is determined in part by the extent of their injuries, and their activities before the injury. Filing a successful accident benefits claim entails proving that a person suffered injuries resulting from a car accident.

Again, it doesn’t matter who is at fault, as even at-fault drivers can file a successful application for accident benefits. Other benefits include assistance in taking care of the self, children, or house during their recovery period.

In cases where a collision caused death, the deceased person’s loved ones may be eligible for death and funeral benefits. In cases where loved ones suffer severe emotional distress due to their loved one’s injury or death, they may be entitled to counseling benefits through their insurance company.

Step 2 – Meeting with Ontario Car Accident Injury Lawyer

Officially seeking the counsel of a personal injury lawyer will allow injury victims to obtain information and details about the accident. The personal injury lawyer will need all sorts of information and documents, such as:

• Nature and type of injuries
• Police reports
• Medical reports
• Eye witness accounts
• Photos and surveillance footage
• Insurance companies involved
• Medical treatments needed
• Tests and diagnoses needed
• Prognosis of the injury
• Scheduled medical follow-ups
• Employment status before the accident
• Health conditions before the accident

All of the information above will help a personal injury lawyer determine their client’s eligibility for accident benefits, or if they have ample grounds to file a lawsuit. During this stage, should the injury lawyer agree to represent the client, release forms will be signed. Release forms are necessary so that the lawyer can act on their client’s behalf and directly correspond to relevant parties to obtain insurance, medical, tax, employment, and police records.

In cases wherein the injuries and details of the accident are straightforward, the lawyer can easily identify and anticipate liability issues as well as advise as to the legal theory on damages, based on the facts as of the time of the meeting. The initial meeting can last for only around 30 to 45 mins. In more complicated cases, however, meetings could last for several hours as the lawyer and client hash out important details.

At such stage, the personal injury lawyer will have to be put on retainer. Arrangements for an accident benefits claim can start while the client’s injuries are monitored. When needed, the case may progress into a lawsuit.

Step 3 – Settlement Negotiation

It is important to wait until injuries are fully healed or significantly better before settling. Most insurance companies put pressure on claimants to settle on a full and final basis even before the injured party has recovered from their injuries.

This is why in most car accident cases, policyholders are discouraged by their insurance companies from getting a personal injury lawyer. Needless to say, they prefer to negotiate settlements with the policyholder rather than with their lawyer.

Without legal counsel, insurance companies may get away with paying a person less than what their claim is worth.

The role of a personal injury lawyer is assigning a fair and realistic amount for any income losses and needs due to the injury. This amount will be based on the client’s diagnosis and prognosis from medical experts, treatment providers, and specialists assessing the personal injury victim.

Step 4 – Your Personal Injury Lawyer Investigates the Accident

Your personal injury lawyer will then investigate the accident. This includes examining and evaluating pertinent information, such as medical evidence. Investigation efforts include visiting the scene of the accident, speaking to eyewitnesses, evaluating the vehicle/s, and consulting with car accident experts to reconstruct the accident.

In a lawsuit, the plaintiff is the injured person seeking compensation. On the other hand, the defendant is the person against whom the lawsuit is filed. In an accid8ent-benefits claim process, however, the injured person seeking benefits is called the insured, while the insurance company is called the accident benefits insurer/carrier/provider.

Step 5 – Collecting Evidence from the First Emergency Hospital Visit and Every Time Following Until the Case is Won

Eligibility for compensation via a lawsuit or accident benefits depends on providing proof of the injuries caused by the accident. As such, the injuries must be documented to have caused damage, loss, or trauma to the plaintiff/insured. The personal injury ensures that enough evidence is gathered from various sources to prove the client’s rights to damages in a lawsuit or accident benefits.

This role includes collecting medical evidence starting with the first visit to the emergency room on the day of the accident, as well as all consecutive doctor visits. All medical procedures will likewise be documented until the case is resolved. This includes tests, x-rays, scans, surgeries, doctor visits, rehabilitation, therapy, medications, and other medical procedures.

Likewise, reports from eyewitnesses, police, and even photos and social media posts will be included in the evidence file. Specialists like expert witnesses and reconstruction specialists will also be consulted to better understand and support the case.

Insurance companies, on the other hand, may try to deny the extent of the damages or injuries sustained directly as a result of the subject accident. In a similar manner that your lawyer is gathering evidence, the insurance company may likewise cite a pre-existing condition or illness in your medical history to try and minimize the damages sustained a direct result of the subject accident/dispute causation in throughout the process of defending the claim.

Both parties will continue to gather relevant evidence until the settlement of the claim.

Step 6 – Applying for Accident Benefits

Notifying your insurance company of your collision is the first step in applying for accident benefits. Take note that this step ought to be done within seven days from the day of the collision. During the conversation with your insurer, you’ll have to provide basic information regarding the accident. Afterwards, the insurance company will send an application package for you to complete and submit.

The application package typically consists of forms, such as the following:

• Application for Accident Benefits: To provide basic information concerning the collision and injuries sustained by the insured
• Disability Certificate: To be filled out by a treatment facility or care provider to describe the injuries and difficulties that the insured has
• Permission to Disclose Health Information: To grant the insurance company access to medical records
• Employer’s Statement: To inform the insurance company about the insured’s job status before the car accident. More than one Employer’s Statement may be submitted for persons with more than one job before the accident.
• Expense Form: To allow the injured party or their family to claim for costs made out-of-pocket due to the accident, such as ambulance bills, parking fees to visit the hospital, etc.
• Form to Claim Death and Funeral Benefits: To allow the loved ones of the insured to file for funeral and death accident benefits

Note that filling out these forms should be done carefully and accurately as they will affect the outcome of the claim. As such, it’s recommended to involve your lawyer when completing them.

Step 7 – Filing the Lawsuit

The pleading stage marks the first stage of filing a lawsuit, and it begins with preparing the plaintiff’s Statement of Claim. This document will be prepared by the plaintiff’s personal injury lawyer. It will contain references to the pieces of evidence collected pertaining to the injury.

Under Ontario law, it is required that this legal document be filed with the court and delivered to the defendant by hand (personal service). This document formally advises the following parties of the intent to claim damages:

• The driver at fault
• The owner of the vehicle driven by the driver at fault
• The driver and/or owner’s insurance company

The document typically outlines the following:

• The details of the accident
• Reference to some proof that the at-fault driver’s negligence caused the accident
• The nature and extent of the victim’s injuries
• The monetary amount of the damages sought
• Pain and disability caused by the accident
• Necessary medical procedures, medications, and other remedies
• Needs for care, counseling, rehabilitation, and assistive devices

Step 8 – Counter Claim

Upon receiving the Statement of Claim, the defendant and their insurance company are mandated to respond within 20 days of having been served the document. The defense lawyer may request an extension, extending the submission of the Statement of Defense by six months.

The defendant’s response document is called the Statement of Defense. Typically, the document contains the defendant’s denial of all claims indicated in the Statement of Claim. This includes denying the responsibility for causing the accident, the plaintiff’s injuries, and capacity to work. For this reason, the plaintiff must have sufficient evidence that will support everything they claimed in the Statement of Claim.

Step 9 – Independent Medical Examinations

The three types of independent medical examinations are:

• Medical examinations scheduled by the personal injury lawyer for the insured/plaintiff
• Medical examinations scheduled by the accident benefits carrier or insurance company
• Medical examinations scheduled by the defense lawyer

Medical Examinations Requested by the Injury Lawyer

As the injured party, your lawyer will need medical reports by medical experts to substantiate your claims and prove the extent of the injuries sustained, as well as disability, if any. These medical experts are authorized to provide a diagnosis and prognosis, both of which will be used to support the plaintiff’s case. The experts can also comment on the following to prove the seriousness of the injuries:

• The cause of the plaintiff’s sustained injuries
• The impact of these injuries on the plaintiff’s ability to work
• The impact of the injuries on the plaintiff’s capacity to care for themselves, their loved ones, and their home
• The effect of the injury on the plaintiff’s ability to enjoy their usual activities of daily living before the car accident (e.g. bathing, housework, recreational pursuits, etc.)

Medical Examinations Requested by the Insurer

Attending these independent medical examinations is mandatory, as they are necessary for the insurer to determine eligibility for benefits sought by the insured. An expert may be called on to assess, for example, the insured’s capacity to work in the event of an income replacement benefits claim.

These examinations are scheduled and typically take place near the insured’s area of residence or in a nearby city. Should some assessments require the insured to travel outside of their area, the insurer will cover the travel expenses and provide travel accommodation.

Medical Examinations Requested by the Defendant

It is also mandatory for the plaintiff to attend the independent medical examinations scheduled by defense. In this case, medical experts will be consulted and will be asked to comment on the plaintiff’s injuries and disabilities.

These examinations are likewise scheduled and usually take place in the same city where the plaintiff resides, or somewhere close by. Should the defense schedules examinations that are relatively farther from the plaintiff’s residence, the plaintiff’s lawyer may do the following:

• Reject the defense’s request
• Ask the defense to cover the plaintiff’s transportation and accommodation expenses

Take note that ideally, these independent medical exams are conducted by medical practitioners who are unbiased and do not take any sides. However, since they are chosen by each party (lawyer, insurer, defense), there is also a strong possibility that the results of these examinations may not be as ‘independent’ or unbiased as one would expect.

In some cases, specialists are hand-picked by the insurer or the defense because they are aware of the person’s biases or opinions. Personal injury lawyers should always remind their clients to be wary, as these medical practitioners may not share the same goals as the plaintiff/insured.

Typically, an insurance or defense medical expert is tasked to do the following:

• Examine and scrutinize the extent of the injury
• Gather information that will help the insurer or defendant to deny the claim or disprove allegations
• Provide information that will be used for cross-examination
• Determine if the plaintiff is malingering or exaggerating

As such, the result of these examinations will typically be in the favor of the defense or the insurer. However, this is a common occurrence and is something that a personal injury lawyer can help their client prepare for.

Here are some tips for handling independent medical examinations successfully:

• Always ask your lawyer if you are unsure about anything or have any concerns before attending the examination.
• Be honest in your account of what transpired on the day of the accident. Be as consistent as possible, because the accident benefits carrier will be looking for any inconsistencies in your story to challenge your credibility.
• Don’t sign anything during the defense or insurance assessments without consulting your lawyer first. Be wary of examiners that conduct so-so assessments and ask you to sign that the examination has been thorough and fair.
• Remember that you always have the right to tell the examiner that you wish to consult with your lawyer first. This applies to answering questions and signing documents or forms that you may be unsure of.

Especially in cases where circ*mstances of the accident are more complex, there may be numerous assessments and experts involved, including:

• Forensic Accountants
• Neurologists
• Occupational Therapists
• Pain Specialists
• Psychiatrists and Psychologists

As such, one must communicate with their lawyer regularly regarding their concerns, limitations and preferences in attending these assessments, as they may be quite overwhelming.

Step 10 – Discovery Stage of the Personal Injury Case

The Discovery Stage in the lawsuit begins when the Affidavit of Documents is served. This is the responsibility of the plaintiff’s lawyer. It typically contains all of the relevant documents, except those that might be privileged. The Affidavit of Documents is a documents brief that must be served to defense within ten days of the completion of pleadings.

On the other hand, the defendant ought to prepare an Affidavit of Documents that contains evidence, documents, and facts that support the case of the defense. This, in turn, is served to the plaintiff.

After both sides have exchanged their affidavits, they can now proceed to the next step – Examinations for Discovery. This stage typically takes place a year to a year and a half after the start of the claim. During these Examinations, both sides continue building and supporting the information that they have provided thus far into the litigation process. Both parties are sworn to tell the truth and are questioned by each side’s opposing lawyer about pertinent matters.

Everything stated during the Examination for Discovery is recorded and transcribed by a court reporter and is considered admissible in court, should the claim ever reach a trial stage.

Step 11 – Examination Under Oath

In an Examination Under Oath, the insured is sworn to tell the truth and questioned by a lawyer. The lawyer questioning the insured represents the insurer/accident benefits carrier. As such, all questions pertain to eligibility for accident benefits.

Step 12 – Mediation

Lawsuit Mediation

The next litigation step is the Mediation. Mediation is technically a meeting between two sides (plaintiff and defendant), presided by an impartial third-party whose goal is to help the two parties come to a timely resolution (“the mediator”). It is assumed that after pleadings and discovery, both parties will have understood each side better and will be better able to come to an agreement by identifying areas of agreement while also compromising some of their positions.

As such, the process of mediation gives both sides the chance to negotiate settlements and solutions that are found to be mutually agreeable. Mediation typically takes less than a day up to an entire day, depending on the number of parties involved and the complexity of the issues in dispute. The good news is that a lot of claims are successfully settled during this stage.

However, should both parties fail to settle or come to an agreement, the dispute will then have to progress to pre-trial or arbitration.

Accident Benefits Claim Mediation

In the event that the insurance company denies the eligibility for a benefit the insured has applied for, the insured and his or her lawyer may appeal the denial and file an Application for Mediation. Such an application will be filed with the Financial Services Commission of Ontario.

Similar to mediation in a lawsuit, both parties may come to an agreement to settle. They may choose to address the denied benefit alone or settle on the entire accident benefits claim. Typically, during full settlements, the accident benefits carrier will provide the insured with a lump sum of money. The lump sum, when received, will be equivalent to the insured giving up their right to claim accident benefits in relation to the subject collision.

In the event that the Mediation is unsuccessful, the lawyer may file a Statement of Claim or an Application for Arbitration. If an Application for Arbitration is filed, the claim will then have to proceed to a Pre-Hearing.

Step 13 – Pre-Trial

Claims go to pre-trial in instances where a lawsuit is not settled post-discoveries, at the mediation stage or through informal negotiation afterwards. Some jurisdictions do not mandate mediations and if the plaintiff does not request one pursuant to the Insurance Act, pre-trial may take place as the next stage after the completion of discoveries. Pre-trials occur before an actual trial and are conducted by a judge. The master or judge is selected by the courts. Their goal is to clarify important issues before the trial. These issues include procedural issues regarding witnesses, juries, translators, experts, etc. Both parties’ readiness for trial will also be examined and addressed.

As such, the goal of pre-trial is to ensure that proceedings run smoothly once the lawsuit goes to court. Lastly, the pre-trial judge will make a final attempt to mediate between the two parties and encourage a settlement that is mutually agreeable.

Step 14 – Pre-Hearing in an Arbitration Proceeding Followed by Settlement in the Proceeding

Should both parties in an accident benefits claim fail to settle during mediation, then the claim will proceed to a Pre-Hearing. Pre-Hearing comes before Arbitration. Similar to a Pre-Trial, the goal of a Pre-Hearing arbitrator is to clear up issues and take one last chance to mediate and encourage an agreeable settlement.

In the event that a settlement of the denied accident benefits is still not achieved during Pre-Hearing, the arbitrator will then schedule a Settlement Conference. This Settlement Conference will occur before the Arbitration and proceeds similarly to a Mediation.

Step 15 – Settlement

If the plaintiff’s lawyer is able to provide adequate documents to support the plaintiff’s allegations, there is still a good chance of achieving a favorable settlement. In this case, there would be no further need to proceed to a trial.

Step 16 – Trial/Arbitration

One of the final steps in a personal injury claim is proceeding to Trial or Arbitration. It requires a great deal of organization, documentation, and preparation on the part of the plaintiff’s lawyer. Some of the tasks that the plaintiff’s lawyer must prepare or accomplish are:

• Preparing a trial/arbitration strategy
• Formulating an opening argument and closing statement
• Preparations for cross-examinations, including eyewitnesses, defense witnesses, and medical experts
• Preparing witnesses (the plaintiff, eyewitnesses, family, colleagues, etc.)
• Establishing the plaintiff’s credibility
• Countering claims of malingering and exaggeration of injuries against the plaintiff
• Cross-examination of the defendants/ accident benefits carrier adjuster
• Preparing demonstrative evidence for the jury, such as:
  • Reconstructions of the accident
  • “Day in the life” videos
  • Cost projections for life care
• Consulting experts for expert testimonies

Once the Trial or Arbitration is concluded, a verdict will then be given by the judge.

Final Step – Compensation

Finally, when either a lawsuit or accident benefits claim reaches its conclusion, the plaintiff or insured may receive compensation awards. In a personal injury case, awards are intended to serve as compensation for losses and to aid the plaintiff throughout her recovery.

In a benefits claim, they are intended to provide the insured with the benefits they are rightfully entitled to.