Am I Liable if My Child Takes My Car and Causes an Accident?

implied consent

If you own a car that is involved in a motor vehicle accident, you may be held financially responsible for third-party damages even if you were not the driver. Under the Ontario Highway Traffic Act, the owner of a registered vehicle is “liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle.”

However, an owner may escape liability if the person driving the vehicle had possession “without the owner’s consent.”

In some cases, ascertaining the owner’s consent is a relatively simple matter. For example, if someone steals your car and gets into an accident, you are clearly not responsible for the damages.

But what if someone living in your house “borrows” your car without telling you first and is subsequently involved in an accident? Put another way, is there such a thing as implied consent for purposes of Ontario law?

Two recent decisions from the Ontario Superior Court of Justice address this question. By pure coincidence, both cases involve scenarios in which a son used his mother’s car and, in the course of operating the vehicle, negligently caused an accident.

Michaud-Shields v. Gough: When is Consent “Implied”?

In the first case, Michaud-Shields v. Gough, the son took his mother’s truck while she was away from the house. The son did not have permission to use the truck, and in fact did not possess a valid driver’s license. Nevertheless, he proceeded to drive the truck while under the influence of alcohol and caused an accident with a second vehicle, which the plaintiff was driving.

Ontario police subsequently charged the son with impaired driving and other criminal offences. Police asked the mother if she wished to press her own charges against the son for “stealing” the truck, but she declined to do so.

The truck actually belonged to the son at one point, when he was still a licensed driver. But several years after the son’s license was suspended, he transferred title to the mother. The mother used the truck and insured it in her own name.

Based on the evidence presented to the Superior Court, at no point did she allow her son to use his former truck, based primarily on the fact he was not a licensed driver.

The Arguments in Court

The plaintiff filed a personal injury lawsuit against a number of parties, including the son, the mother, and the plaintiff’s own uninsured motorist insurance carrier. The insurance company brought a motion for summary judgment in Superior Court, seeking a declaration that the son “was operating the subject truck with the implied consent” of the mother.

Essentially, if the son was driving the truck with implied consent, the mother (and her insurance carrier) would be liable for the plaintiff’s potential damages; otherwise, since the son lacks insurance of his own, the plaintiff’s carrier would be on the hook for any judgment.

Unfortunately for the insurer, Justice Chris de Sa denied the motion for summary judgment. While the judge agreed that “permission to the use the vehicle need not be express” for purposes of assigning liability under the Highway Traffic Act, the undisputed evidence here did not support a finding of any kind of permission.

The insurance company argued the judge should infer implied consent because the mother “did nothing to prevent Justin’s access or use to the vehicle, and she did not expressly forbid him to drive the vehicle while she was away.”

Justice de Sa said this “interpretation” of the law “is far too broad.” The mother did not grant consent simply by leaving her car in the driveway while she went away for the weekend. By that logic, the judge said an owner would give implied consent to a car thief if they do not take affirmative steps to prevent the theft.

Leigh v. Clement: A Question of “Possession”

The facts of the second case, Leigh v. Clement, are remarkably similar to the first. Here, an adult son was living with his mother. His driver’s license was previously suspended. The mother owned a vehicle but did not allow her son to drive it due the suspension. However, the mother did occasionally allow one of her son’s friends to use her car to give him a ride.

One day, the son took his mother’s car–without her express consent–and got into an accident. The driver of the other vehicle then sued the mother for damages. The plaintiff’s insurance company also filed a cross-claim against the mother.

This time it was the mother who moved for summary judgment. Justice R. Dan Cornell of the Superior Court granted this motion. Unlike the prior case where the court focused on the question of implied consent, here Justice Cornell framed the issue as “whether the owner granted possession of the vehicle to another person.”

By law, courts presume that an owner granted possession to the driver. So the burden of proof was on the mother here to disprove this.

But as it turned out, Justice Cornell said there was really no debate–the mother never gave possession to the son. Indeed, she was asleep at the time her son took the car. The son admitted his mother never gave him possession of the car. For her part, the mother said she was unaware of any instance (prior to the accident) in which her son took the car.

While the mother did allow her son’s friend to use the car, in those instances Justice Cornell said she gave possession to the friend, not the son. Accordingly, the mother was not liable for her son’s car accident.

Need Help Sorting Out a Car Accident? Call Preszler Law Today

Sorting out who is liable for an auto accident is often more complicated than you might think. A number of parties may be involved with driving, maintaining, owning, and insuring a given vehicle. This is why it is important to work with an experienced Toronto personal injury lawyer who is experienced in dealing with car accidents. Call Preszler Law Firm to schedule a free, no-obligation consultation with one of our lawyers today.

When is a Cohabitant a Spouse for Ontario Auto Insurance Purposes?

Are cohabitants spouses for Ontario auto insurance?

The Canadian family is changing. According to Statistics Canada, in 1991, 42% of Canadians were married, and 5.5% were cohabiting with another person as a couple. By 2017, the percentage of Canadians who were married had fallen to less than 39%, and the percentage who were cohabiting had jumped to almost 10%.

Social shifts like these don’t always match up with what existing law provides for. As a result, individuals, government agencies, and other organizations can sometimes find themselves dealing with unexpected circumstances without clear legal guidance. An Ontario family law lawyer could probably come up with dozens of examples of this problem in action.

But recently, the line between cohabitants and spouses came up in a court case that is closer to the areas in which we practice. That case, called Royal & Sun Alliance v. Desjardins/Certas, turned in significant part on whether a live-in girlfriend was a “spouse” covered by her boyfriend’s auto insurance policy.

Article at a Glance

  • The Ontario Insurance Act specifies which insurer is responsible for accident benefits owed to a person injured in an automobile accident.
  • An insured person’s spouse can make a claim for statutory accident benefits against his or her spouse’s auto insurance policy.
  • Unmarried couples who live together may qualify as spouses for auto insurance purposes if they meet certain requirements detailed in the Insurance Act and the Statutory Accident Benefits Schedule.

Background: Priority of Coverage for Statutory Accident Benefits

Understanding the issues in Royal & Sun Alliance requires a bit of background knowledge about Ontario’s automobile insurance system. As we’ve discussed before, automobile insurance in Ontario has two basic components: no-fault statutory accident benefits (SABs) and tort coverage:

  • When an Ontarian is injured in a motor vehicle collision, he or she normally files a SABs claim with his or her own insurance carrier, regardless of who was at fault in causing the collision.
  • If the other driver was at fault in causing the accident, then the injured person will have a tort claim against him or her, and the other driver’s insurance will pay for the injured person’s damages.

But sometimes, a person injured in an automobile accident will be uninsured. As a result, the Insurance Act includes a rule of priority for which insurance policy is liable for SABs. For a person injured while in a car, section 268(2)(1) specifies that the following insurer is liable for SABs:

  1. The insurance company that insures an automobile owned by the injured person.
  2. The insurance company that covers the automobile the injured person was riding in at the time of the accident.
  3. The insurance company for any other automobile involved in the accident.
  4. The Motor Vehicle Accident Claims Fund (MVACF).

For a non-occupant—like a pedestrian—the priority rules (found in section 268(2)(2)) are a bit different. In that case, responsibility for SABs belongs to:

  1. The insurance company that insures an automobile owned by the injured person.
  2. The insurance company that covers the automobile that struck the injured person.
  3. The insurance company for any other automobile involved in the accident.
  4. The MVACF.

The Royal & Sun Alliance case involved that second scenario: a non-occupant injured in a motor vehicle accident.

Royal & Sun Alliance v. Desjardins/Certas: Are Cohabitants Spouses?

In February 2014, Helen Halliday was struck by a car in the parking lot at her workplace. She filed an accident benefits claim with Royal & Sun Alliance (RSA), the insurer of her live-in boyfriend, David Zorony, claiming that she was his spouse. In Ontario, an insured person’s spouse is covered by that persons’ auto insurance.

RSA paid those benefits to Halliday, but sought reimbursement from Desjardins/Certas, the insurance company that insured the driver who struck her. RSA’s argument was that Halliday and Zorony were merely cohabitants, not spouses, and so she wasn’t covered by his insurance. As a result, under the Insurance Act’s priority rules, Desjardins/Certas should be on the hook for her accident benefits.

The question for the Superior Court of Justice, then, was whether Halliday was Zorony’s spouse at the time of the accident. The Insurance Act defines “spouse” for auto insurance purposes to mean either of two persons who:

  • Are married to each other;
  • Have entered into a void or voidable marriage in good faith; or
  • Have lived together in a conjugal relationship outside marriage either continuously for a period of at least three years or in a relationship of some permanence if they are the parents of a child.

Zorony and Halliday did not meet either of the first two alternatives, and they did not have a child together. Consequently, Halliday could only be Zorony’s spouse for SABs purposes if the two had “lived together in a conjugal relationship . . . continuously for a period of not less than three years.”

In this case, the couple had only lived together for about one year at the time of the accident.

The Arbitrator’s Error

But that didn’t stop the arbitrator whose decision the Superior Court of Justice was reviewing from finding that Halliday and Zorony satisfied the definition of “spouse.” The arbitrator reasoned that the three-year limitation was not as strict as it sounds.

In making that determination, the arbitrator relied on prior cases interpreting a similar definition of “spouse” found in the Family Law Act used in defining spousal support obligations.

But as the Superior Court of Justice explained in reversing the arbitrator’s decision, although the language used in the Family Law Act and Insurance Act may be similar, the policies underlying the acts are different. So, although it may be appropriate to interpret “spouse” flexibly for purposes of spousal support under the Family Law Act, the same considerations do not apply to the issue of statutory accident benefits under the Insurance Act.

In short, to be a “spouse” under the Insurance Act requires closer conformity to the statute’s definition than is required in Family Law Act support cases. RSA was right, according to the Court: although Halliday and Zorony were cohabitants, they were not spouses, so Desjardins/Certas was responsible for her statutory accident benefits.

Getting Help with Statutory Accident Benefits in Ontario

Luckily for Halliday, in Royal & Sun Alliance her entitlement to statutory accident benefits was not in question. The only issue was which of two insurers would ultimately be responsible for paying those benefits.

But in many other SABs cases in Ontario, an insurance company will try to deny a claim entirely or limit the amount to which an injured person is entitled. In such cases, the assistance of an experienced accident benefits lawyer is critical to an injured person’s financial recovery.

Preszler Law Firm is an Ontario personal injury firm with nearly 60 years of experience helping injured Ontarians hold negligent drivers and their insurance companies responsible. In that time, we have helped countless clients obtain the statutory accident benefits or other compensation to which the law entitles them.

If you’ve been injured in an automobile accident in Ontario, contact us today for a free consultation about how we can help you on the road to recovery.

How do Costs Work in a Personal Injury Lawsuit Involving Multiple Defendants?

Sanderson order

Like most Canadian provinces, Ontario follows a “loser-pays” rule in civil litigation. This means that as a general rule, the prevailing party in a lawsuit can seek reimbursement of a portion of the costs associated with the litigation from the losing party. Ultimately, if the parties fail to agree on costs, a judge makes the final determination.

But what happens in cases in which a single plaintiff sues multiple defendants, and only some of the defendants are found liable for the plaintiff’s injuries?

For example, say you are injured in a three-car accident. You sue two drivers for damages, but the jury decides only one of them was responsible. Can the innocent driver seek costs against you?

The short answer is “yes.” But the longer–and more complicated–answer is that you can also ask the court for what is known as a Sanderson or Bullock order. The basic idea behind these orders is that the losing defendant pays some or all of the winning defendant’s costs.

(The reason for two different types of orders is somewhat technical: a Sanderson order directs the unsuccessful defendant to pay the successful defendant directly, while a Bullock order reimburses the plaintiff for paying the successful defendant’s costs.)

Article at a Glance

  • In Ontario, the person who loses a lawsuit must generally reimburse the prevailing party for his or her litigation costs.
  • When a plaintiff sues multiple defendants, not all of whom are found liable, the plaintiff may be required to reimburse the non-liable defendants for their costs.
  • A plaintiff can ask the court to require the liable defendants to pay part of the other defendants’ costs using a Sanderson or Bullock order, but it’s up to the court whether to do so.

Bukshtynov v. McMaster University

A judge is not required to issue a Sanderson or Bullock order. Depending on the nature of the case, and the plaintiff’s conduct during the litigation, the judge may determine it is appropriate to hold the plaintiff solely responsible for the successful defendant’s costs.

For example, an Ontario Superior Court justice recently denied a Sanderson order requested by the plaintiffs in a personal injury case arising from an unusual pedestrian accident.

What Happened in Bukshtynov?

The lead plaintiff was a doctoral student at McMaster University. One morning in December 2011, the plaintiff was running on the university’s indoor track. Other people were also using the track, including several track club runners. One of the runners, who was “proceeding at a high rate of speed” according to court records, collided with the plaintiff.

The accident resulted in a serious shoulder injury for the plaintiff, which required surgery. Even with treatment, however, the plaintiff suffers from ongoing pain in his shoulder and a “reduced range of motion.”

He subsequently sued a number of parties for damages, including McMaster University, the track club runner, the track club itself, and the track club’s coach. The plaintiff’s spouse and minor daughter also claimed Family Law Act damages.

The parties attempted to settle before trial. The plaintiffs asked for approximately $1.2 million in damages plus costs. The defendants collectively offered a significantly lower amount, about $180,000. The plaintiffs decided to take their chances at trial.

After a 13-day trial, the jury determined as follows:

  • The running club and its coach were 60% liable for the accident;
  • The plaintiff was 40% “contributorily negligent” for the accident; and
  • The university and the runner were not liable at all.

The jury further awarded just under $102,000 in damages, which was less than the defence offered in settlement talks.

Judge Denies Sanderson Order

The successful defendants–the university and the runner–were entitled to recover costs. The plaintiff asked the judge for a Sanderson order directing the running club and the coach to pay the costs. The judge said that was “not fair and reasonable” and denied the plaintiff’s request.

The judge cited a number of factors supporting his decision:

  • The defendants never tried to blame one another for the plaintiff’s accident; rather, they presented a “unified” front.
  • The unsuccessful defendants did nothing that “caused the successful defendant to be added as a party.”
  • These were not separate causes of action. Indeed, the “two actions were intertwined,” as the plaintiff alleged the negligence of all of the parties contributed to a single event, i.e. his accident.
  • The plaintiff has the ability to pay the successful defendant’s costs.

This last point raised another issue. Many personal injury plaintiffs choose to purchase after-the-event (ATE) insurance to guarantee costs in the event of a loss. In fact, when the university brought a pre-trial motion for security of costs–due to the fact the plaintiff was living in the United States by then–the plaintiff agreed to purchase ATE insurance.

He apparently failed to pay the premium, however, which led the judge to issue a separate order directing the plaintiff to pay approximately $86,000 to the court directly as security.

Having denied the request for the Sanderson order, the judge proceeded to determine costs. With respect to the runner, the judge directed the plaintiff to pay $69,156 in costs. The university received an additional $95,000 in costs. This will be offset by the $86,000 previously paid to the court as security. Separately, the unsuccessful defendants must pay the plaintiff $43,000 in costs.

Get Honest, Accurate Legal Advice from an Ontario Pedestrian Accident Lawyer

The judge did not go easy on the plaintiff when it came to costs. In part, this was because the judge said the plaintiff was “stubborn” in his refusal to settle and his insistence on going to trial, which resulted in a “Pyrrhic victory” before the jury.

The judge was further displeased by the plaintiff’s “bizarre and nonsensical” decision not to pay for ATE insurance. As the court noted, for a single $1,500 premium the plaintiff “would have had some piece of mind” and avoided paying more than $80,000 of his own money as security.

The need for ATE insurance is just one of many issues you must consider before bringing a personal injury claim in Ontario. An experienced Toronto pedestrian accident lawyer can advise you on the best course of action and guide you through the legal process. At Preszler Law Firm, we take our obligations to our clients seriously.

While no lawyer can guarantee you a successful outcome, we promise to provide you with honest, accurate legal advice and to zealously represent your interests. Call us today to schedule a free, no-obligation consultation.

Source:

CanLii

What is Alternative Dispute Resolution in Ontario?

Alternative Dispute Resolution in Ontario

During 2016, more than 70,000 new civil lawsuits were filed in the Ontario Superior Court of Justice (SCJ). The SCJ is the provincial court that hears all civil proceedings in Ontario. But, although 70,000 lawsuits may sound like a lot, that figure pales in comparison to the number of legal disputes addressed by forms of alternative dispute resolution in the province each year.

“Alternative dispute resolution,” or “ADR,” is the technical term for any method of resolving a legal dispute outside of court. Many parties prefer ADR to litigation, because the less-formal procedures available outside of court can save time and expense and give the parties greater control over the dispute-resolution process.

This post briefly introduces the three types of ADR most commonly used in Ontario and considers the potential advantages offered by such processes. However, it bears keeping in mind that there is no one “best” mechanism for dispute resolution. Whether ADR or court proceedings are better in any particular case depends on the facts and circumstances of that case.

Article at a Glance

  • In general, when people speak of ADR, they are referring to negotiation, mediation, or arbitration, although other forms of ADR exist.
  • The various forms of ADR can often offer advantages over traditional litigation, but aren’t always the best strategy.
  • Whether your case is better suited to trial or ADR depends on a number of factors, which a lawyer can help you analyze.

Types of Alternative Dispute Resolution

The term “alternative dispute resolution” refers to any number of out-of-court procedures for resolving conflicts. It can even refer to, for example, flipping a coin. But when lawyers and judges use the term, they are usually referring to one of three types of ADR: negotiation, mediation, or arbitration.

Negotiation

Negotiation is one of the simplest and most straightforward forms of ADR: The parties discuss their conflict with one another to try to come to an agreement about what to do. They may do this directly or through intermediaries, such as lawyers.

In fact, in a personal injury claim, negotiating with the defendant or his or her insurance company is usually one of the first steps a personal injury lawyer will undertake. If your lawyer and the lawyer for the defence can come to an agreement on the terms of a settlement (with your approval), you can avoid appearing in court.

Because of its simplicity, negotiation is typically the least expensive form of dispute resolution.

Mediation

In mediation, the parties to the dispute ask for the help of a neutral, trusted outsider (the mediator) in resolving their disagreement. The role of the mediator is to facilitate communication between the parties and urge them towards a mutually agreeable resolution. The mediator may do so by, for example, highlighting the risk of going to trial or noting the weaknesses in each party’s case (like the presence of a pre-existing injury).

The mediator does not “decide” the dispute or make an award of damages. He or she is just there to help the parties communicate and move towards settlement.

In Ontario, the parties to many civil lawsuits are required to complete mediation before the court will set the case for trial. For example, under the Ontario Rules of Civil Procedure, the parties to civil litigation filed in Toronto, Ottawa, or Essex County must normally submit their dispute to mediation before trial.

Mediation is generally more expensive than negotiation, because the parties will need to pay the mediator for his or her services, in addition to paying their own lawyers.

Arbitration

Arbitration is similar to mediation in that it involves a neutral third party. But arbitration is a more complicated form of alternative dispute resolution than the previous two. In many ways, arbitration resembles a trial in court, but it is presided over by one or more private arbitrators instead of a judge. But, like a judge, the arbitrator can make an award of damages and costs.

The rules under which an arbitration proceeds, including rules of procedure and rules of evidence, can often be determined by the agreement of the parties. In general, the parties may also determine whether an arbitrator’s award will be binding or non-binding. If the parties agree that the award is binding, then further review by a court is limited.

Arbitration tends to be the most expensive form of ADR, because it is more formal and complex than other types.

The Potential Advantages of Alternative Dispute Resolution

The different forms of ADR offer several potential advantages over litigating a claim in court. Those advantages include:

  • Faster resolution: Court cases can take many years to resolve. Just consider some of the case studies we routinely discuss on this blog: We often describe court decisions that have been recently released, but that relate to events that took place five or more years ago. ADR can often resolve disputes much more quickly than that.
  • Less expensive procedures: In part because court cases take so long, and in part because they tend to be more formal and complicated than ADR, litigating a case also tends to be more expensive than settling it through negotiation, mediation, or arbitration.
  • Greater control by the parties: The rules of procedure that govern in court are what they are, whether the parties would prefer they be different or not. But the rules that apply in an ADR proceeding can be determined by the parties’ agreement, meaning the entire process can be customized to suit the parties’ needs and desires.
  • Confidentiality: Court records are public records, meaning that the details of a dispute and its resolution are open to the public once litigated. In contrast, ADR is a private process, and the parties can agree to keep their dispute and dealings confidential.

Keep in mind, however, that these are merely potential advantages of ADR. They do not always materialize in real-world disputes. If ADR procedures fail, for example, they may simply increase the cost and length of resolving a legal claim.

Is Alternative Dispute Resolution Right for Your Case?

Alternative dispute resolution is an important part of modern law in Ontario. In many cases, it can help resolve disputes faster and at less expense—but not always. Which dispute-resolution strategy is optimal in any given case will depend on a number of factors. You should consult an experienced personal injury lawyer for help understanding those factors and developing a plan customized to your case.

Preszler Law Firm is a personal injury firm in Ontario that helps guide injured plaintiffs through the process of making a personal injury claim. Our lawyers are experienced at resolving disputes both in and out of court, and can help you determine which strategy is best in your case. If you’ve been injured by another person’s negligence, contact us today for a free, no-obligation consultation, where we can discuss your legal options in more detail.

 

Ontario Judges Chastise SLASTO Executive Chair for “Reviewing” Accident Benefits Decision

Licence Appeal Tribunal

If you are involved in any kind of litigation or contested judicial proceeding, you want to know that the person deciding your case will act fairly and impartially according to the law. This is especially important in car accident cases in which an injured driver or passenger seeks statutory accident benefits.

Statutory benefits are a key feature of Ontario’s “no-fault” insurance system. If your insurance company denies your accident benefits, you have the right to file an application with the Licence Appeal Tribunal (LAT). An LAT adjudicator will then hold a hearing and determine whether or not you are lawfully entitled to the statutory benefits.

Article at a Glance

  • Disputes over statutory accident benefits can be brought before the Licence Appeal Tribunal for resolution.
  • The Licence Appeal Tribunal’s adjudicator is supposed to make an independent determination of the facts in the case in rendering his or her decision.
  • In Shuttleworth, the Ontario Superior Court of Justice overturned an adjudicator’s determination that an injured plaintiff had not suffered a “catastrophic impairment,” because that determination was not made independently, but under direction of the executive chair of SLASTO, the Tribunal’s parent agency.

Shuttleworth v. Licence Appeal Tribunal

This past June, it came to light in an Ontario Superior Court decision that LAT’s arbitrators may not be acting independently, as the law requires. Apparently, LAT maintained an unwritten policy allowing officials from the tribunal’s parent agency–Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO)–to review and possibly change adjudicators’ decisions.

Although the Superior Court did not rule directly on the propriety of SLASTO’s actions, it did order a new hearing in the case presented.

Collision Leads to Dispute With Insurance Company

The case itself began with a head-on car collision that occurred in September of 2012. The applicant in this case was a passenger in one of the vehicles. There was no question that the applicant sustained injuries as a result of the accident. Indeed, the applicant’s insurance company granted her application for statutory accident benefits.

However, there was disagreement as to whether the applicant suffered a “catastrophic impairment.” This is important because of how the Statutory Accident Benefits Schedule (SABS) works. Normally, an insured person is limited to $50,000 in “medical and rehabilitation benefits” and $36,000 in “attendant care benefits” under SABS (depending on the date of the accident and insurance policy).

However, these limits increase to $1 million if the insured person’s injuries constitute a “catastrophic impairment,” which is defined by law as a “55 percent impairment of the whole person.”

There is a complex set of schedules used to calculate an applicant’s impairment rating. Here, the applicant and her insurance company hired expert assessors who came to different conclusions. The applicant’s assessors determined her accident-related impairments “met or exceeded” the 55% threshold.

Not surprisingly, the insurance company’s assessors found the applicant’s impairment was no more than 40%.

Proceedings Before the Licence Appeal Tribunal

Ultimately, the applicant brought a claim before the LAT to settle the issue. An adjudicator conducted a two-day hearing in September 2016. In April 2017, the adjudicator issued her decision. She found the applicant’s impairment rating was 51%–4% short of the catastrophic impairment threshold.

About two months later, the applicant’s personal injury lawyer received what was described as an “anonymous letter.” In the letter, the author said a “reliable source” informed him/her that the adjudicator’s “initial decision” in the applicant’s case “was that this was a catastrophic impairment.”

But this initial decision then “went up for review,” and SLASTO Executive Chair Linda Lamoureux personally “changed the decision to make the applicant not catastrophically injured.”

Although the Executive Chair has statutory authority to review adjudicator decisions on appeal, adjudicators are required to render their own decisions independently. So, it is understandable that this anonymous letter strongly suggested to the applicant (and her lawyer) that something was amiss.

The applicant’s lawyer subsequently filed a freedom of information (FOI) request with the LAT for all documents related to the adjudicator’s decision, including all “documents, emails, notes, letters, and all communications” between the adjudicator and Lamoureux between the date of the hearing and the final decision.

LAT disclosed two emails in response to this request. They indicated that the Executive Chair had, in fact, reviewed the adjudicator’s initial decision and offered her comments.

Based on this information, the applicant asked the Divisional Court of the Superior Court of Justice to “quash” the adjudicator’s decision and “order a rehearing or reconsideration without input from the executive chair.”

Court: SLASTO Improperly “Imposed” Review on Adjudicator

On June 20, 2018, a three-judge panel of the Divisional Court granted the applicant’s request.

First, the Court held the anonymous letter could be admitted into evidence. The LAT objected to this on the grounds the letter constituted “double hearsay.” But as the Court explained, the letter was not admissible for the “truth of its contents,” but rather “for the purpose of narrative.”

In other words, the letter does not establish that the executive chair changed the outcome of the case, but it does explain why the applicant “became concerned about the decision” and filed her FOI request seeking additional information.

Next, the Court noted that it was not necessarily illegal for the adjudicator to discuss a draft decision “with colleagues.” To the contrary, agencies may implement “institutional consultation procedures.”

But there are certain rules that must be followed with respect to such procedures:

  • First, they cannot be “imposed by a superior level of authority within the administrative hierarchy.” Instead, the adjudicator herself must request the consultation.
  • Second, the consultation must be “limited to questions of policy and law.” That is to say, the adjudicator may not engage in consultation with respect to the facts or evidence of a case.
  • Third, the adjudicator must always “remain free” to make whatever decision he or she feels is correct and “not be compelled to adopt the views expressed by other members of the administrative tribunal.”

The problem in this case, the Divisional Court said, was that LAT violated the first rule because review of the adjudicator’s initial decision “was imposed by the executive chair.” The adjudicator never asked the chair for her comments.

Instead, there was an “unwritten review process” in place at the time whereby the LAT’s legal department “sent the adjudicator’s draft decision to the executive chair for her review and comments.” This alone was enough to create “a reasonable apprehension of lack of independence” on the part of the adjudicator, thereby justifying a new hearing.

Speak with a Qualified Ontario Car Accident Lawyer Today

The LAT is still subject to the law. This includes the people responsible for enforcing and upholding the law. Especially in cases in which you are seeking statutory accident benefits, it is critical to ensure that the LAT decides your case in accordance with the law and not questionable “unwritten” procedures that compromise the independence of its adjudicators.

At Preszler Law Firm, our experienced Toronto personal injury lawyers can help ensure you are treated fairly by the LAT and the courts. Call us today to schedule a free, no-obligation consultation.

Source:

CanLII

How Much Can I Receive on Disability in Ontario?

Ontario disability amounts

In 2012, more than 1.6 million Ontarians over 15 years old reported having a disability. That figure represented 15.4% of Ontario’s over-15 population at that time. Disabilities often prevent a person from gainful employment, making it impossible for that person to support him- or herself.

Fortunately, a disabled worker  may be able to rely on one or more of three different types of Ontario disability benefits to help fill the financial gap left by an inability to work:

  • Canada Pension Plan (CPP) disability benefits;
  • Ontario Disability Support Program (ODSP); or
  • Private disability insurance.

Each of these types of benefits comes with different requirements and limitations, and the rules governing each can be highly technical and confusing. Below, we list basic information to provide a rough idea of the Ontario disability amounts provided by these three sources.

However, bear in mind that the amounts below are rough. There are many factors that can impact what amounts are available to a disabled Ontario worker, and these should be discussed with a knowledgeable Ontario disability lawyer if you believe you are not receiving all you are entitled to.

Article at a Glance

  • Ontario disability amounts vary based on source and a disabled worker’s individual circumstances.
  • The maximum monthly CPP disability benefit amount is $1,355.83, and the average is $958.03.
  • ODSP income supports vary widely in amount depending on a person’s family size and living arrangements.
  • Private disability insurance policies generally cover 60% to 70% of a person’s pre-disability income.

Canada Pension Plan Disability Benefits

The Canada Pension Plan is a social insurance program that provides income-replacement benefits upon disability, retirement, or death for Canadians who have contributed to it. The total amount of CPP disability benefits that a person will receive depends on his or her contributions to the program while working.

CPP disability benefits include two components. Every eligible person receives a basic monthly amount fixed at $485.20. The remaining amount is determined by how much a person has contributed to CPP and for how long he or she has made contributions.

For 2018, the maximum monthly disability benefit under the CPP is $1,355.83. The average benefit is less than that, however: $958.30.

Benefits for Dependent Children

In addition to benefits for a disabled worker, his or her dependent children, if any, may also qualify for children’s benefits. The children’s benefit is a fixed monthly amount of $244.64 during 2018, and is only available while the disabled worker is receiving CPP disability benefits.

To be eligible for the CPP disability children’s benefit, a child must be:

  • The disabled worker’s natural child;
  • A child adopted by the disabled worker when the child was younger than 21; or
  • A child in the disable worker’s custody and control under the age of 21.

In addition, to qualify as a dependent, the child must be younger than 18 or under 25 and attending a school or university on a full-time basis.

Ontario Disability Support Program

ODSP is a provincial program that provides income supports and employment supports for eligible disabled Ontarians. ODSP is a needs-based program, which means it is not tied to a person’s contributions in the way CPP benefits are.

How to Calculate ODSP Income Support Benefits

ODSP’s income supports are provided as monthly payments to program participants. They are meant to help pay for such things as food, clothing, and shelter. The amount of these payments depends on a person’s living arrangements.

For program participants who own or rent their own homes, ODSP income supports include a basic needs component and a shelter component. The monthly basic needs benefit as of September 1, 2018 is:

No dependantsOne minor dependantOne adult dependant (other than a spouse)Two minor dependantsOne minor and one adult dependantTwo adult dependants (other than a spouse)
Single person

$672

$815$1,041$815$1,041

$1,230

Married couple with one disabled spouse

$969

$969$1,157$969$1,157

$1,367

Married couple with two disabled spouses

$1,341

$1,341$1,529$1,341$1,529

$1,739

The amount of ODSP shelter allowance will be based on his or her actual costs for rent, mortgage payments, occupancy costs, taxes, utilities, heating costs, water, sewage, and insurance premiums for the home or its contents. However, the shelter allowance is limited to the following maximum amount:

Family sizeMaximum monthly shelter allowance
1$497
2$781
3$846
4$918
5$991
6+$1,026

The total amount of income supports available to a married couple both of whom qualify for the program is generally limited to a maximum of $1,971 per month. In addition, Ontarians who live north of the 50th parallel and are without year-round road access may qualify for the Remote Communities Allowance, an additional monthly amount.

If a participant does not own or rent his or her own home, but receives food and shelter from the same source (e.g., his or her parents), his or her income supports are subject to a separate calculation.

Other income support benefits, such as health benefits, may also be available.

Private Disability Insurance

Disability insurance is insurance that provides income replacement in the event of disability. In Ontario, disability insurance can be purchased by an individual, but is frequently provided by an employer.

Disability insurance policies vary significantly. As such, it is not possible to provide as much detail about their benefits as for the CPP and ODSP. However, the typical long-term disability insurance policy pays between 60% and 70% of a person’s pre-disability income.

Ontario Disability Amounts: Getting Help with Your Benefits

This article could be much longer. The rules governing CPP and ODSP eligibility and the calculations they use to determine a person’s monthly benefit are highly complex, taking into account many factors other than those listed here.

And insurance companies often try to pad their bottom lines by avoiding paying out disability claims on even the flimsiest of rationales, making private disability insurance another complex area of the law.

Ultimately, a brief article could never examine all the rules, sub-rules, exceptions, and caveats that determine a worker’s Ontario disability amounts under the CPP, ODSP, or disability insurance policies. To ensure you’re receiving all that you are entitled to, you need to work with an experienced disability lawyer in Ontario. Contact Preszler Law Firm today to schedule a free, no-obligation consultation and begin getting the benefits you deserve.

 

Does My Auto Accident Injury Qualify as a “Permanent Impairment”?

Permanent Impairment

In Ontario, a negligent driver is not automatically liable for the “pain and suffering” or other non-pecuniary damages sustained by a car accident victim. The Ontario Insurance Act expressly states a driver is not responsible for such damages unless one of two exceptions apply:

  • The first exception is for accidents in which the victim suffered a “permanent serious disfigurement.”
  • The second exception applies in cases of “permanent serious impairment of an important physical, mental or psychological function.”

A defendant in a personal injury lawsuit may bring what is known as a “threshold motion,” essentially a judicial declaration that the plaintiff’s injuries do not qualify for either of the exceptions contained in the Insurance Act, thus barring them from recovering any non-pecuniary damages.

Article at a Glance

  • An injury caused by a motor vehicle accident can give rise to pain and suffering and other non-pecuniary damages if it involves a permanent serious impairment of an important physical, mental, or psychological function.
  • The defendant in a case can challenge an award of non-pecuniary damages by filing a threshold motion–even after a jury returns its verdict.
  • Proving that an injury meets the threshold for non-pecuniary damages requires careful documentation of an injury and its impact on the plaintiff’s life and livelihood.

O’Brien v. O’Brien: Accident Leaves Driver Dead, Passenger with Severe Ankle Fracture

Here is a recent example of how Ontario courts deal with threshold motions. The plaintiff in this case was seriously injured while riding as a passenger in his uncle’s truck. At the time, the two men were returning home from a hunting trip in Thunder Bay. The plaintiff was asleep–and tragically, so was  his uncle.

The uncle fell asleep at the wheel, and the truck subsequently collided with another vehicle travelling in the opposite direction. The uncle died as a result of the crash.

As for the plaintiff, he sustained a serious left ankle fracture that required surgery. According to a medical expert who later testified in court, this particular type of ankle injury means the plaintiff is at higher risk for developing “ankle arthritis, subsequent surgery,” and other complications.

The accident also caused the plaintiff to suffer post-traumatic stress disorder (PTSD) and exacerbated a pre-existing lower back problem.

Court Denies Defence’s Threshold Motion

The plaintiff sued his uncle’s estate for damages. The Ontario Superior Court of Justice submitted the case to a jury. Because the defence admitted liability for causing the accident, the only contested issue was the amount of the plaintiff’s damages.

The jury returned a verdict of $50,000 in general damages, $30,000 for the plaintiff’s past loss of income, and approximately $6,000 for future care costs. The award of general damages was significantly lower than what the plaintiff sought, but slightly more than suggested by the defence.

Following the jury verdict, the defence filed a threshold motion, arguing that any damages for non-pecuniary loss should not be allowed because the plaintiff did not qualify for either of the statutory exceptions described in the Insurance Act. Justice Michael K. McKelvey of the Superior Court denied the threshold motion in a decision issued on July 31, 2018.

The main issue here, the Court explained, was the second exception–i.e., whether the plaintiff suffered a “permanent serious impairment of an important physical, mental or psychological function.”

Court: Injury Caused Permanent Impairment to Victim’s Employment . . .

Ontario insurance regulations provide the legal standards for defining such impairments. First, the impairment itself must “substantially interfere” with the victim’s ability to continue his or her pre-accident employment, pre-accident training for employment, or “usual activities of daily living.”

Second, the impairment must be “permanent,” which the regulations define as “continuous since the incident” and “expected not to substantially improve” according to the available medical evidence.

In this case, Justice McKelvey dismissed the plaintiff’s PTSD and aggravated lower back injury as permanent impairments since both were medically controllable. The Court therefore focused on the plaintiff’s ankle fracture. At trial, the plaintiff’s doctor testified the fracture caused a “fixed flexion deformity” in the plaintiff’s ankle.

In practical terms, this means the plaintiff now has an “abnormal gait” and is limited in his “ability to do heavy activities,” climb stairs, and walk on uneven surfaces. Furthermore, the plaintiff’s condition is medically expected to deteriorate over time, which will likely force him to leave his current job within the next five years.

Given all this, Justice McKelvey concluded the plaintiff sustained a permanent impairment. But the Insurance Act requires further proof that such an impairment interferes with the plaintiff’s employment or daily living. With respect to employment, the Court concluded such interference existed.

In doing so, the judge said he disagreed with the jury, whose verdict “does suggest that in its view [the plaintiff’s] employment prospects were not affected in a significant way by the motor vehicle accident.”

To the contrary, Justice McKelvey again pointed to the doctor’s testimony that the plaintiff would eventually need to “transition to another more sedentary position as the condition of his ankle deteriorates over time.” The defence argued that the plaintiff could not pass a threshold motion based on a “future inability to continue working.” The judge disagreed, noting there was no Ontario case law supporting the defence’s argument.

. . . But Not Daily Living

However, the Court agreed with the defence that the plaintiff’s ankle injury did not constitute a permanent impairment as far as his “usual activities of daily living” were concerned. On this point, the plaintiff’s main claim was that his ability to hunt and fish–two of his primary recreation activities prior to the accident–were significantly limited due to his ankle injury.

Although Justice McKelvey acknowledged these limitations, he also pointed out the hunting season is only about three weeks per year, which did not qualify it as a daily activity.

Contact Preszler Law Firm if You Have Been Injured in an Ontario Auto Accident

Cases like this one illustrate the importance of carefully documenting all of your accident-related injuries and how they affect your daily ability to work and live your life.

Many people are reluctant to gather such evidence because they fear people will think they are a “complainer” or exaggerating their injuries. In fact, the judge in this case noted that witnesses described the plaintiff as “not a complainer,” and someone who made every effort to overcome his accident-related injuries.

But it is also not in your best interest to underplay or minimize legitimate injuries and limitations.

If you have been in an auto accident and require legal advice on the appropriate next steps, contact the personal injury lawyers at Preszler Law Firm to schedule a free, no-obligation consultation.

Source:

CanLII

Transport Truck Crashes in Ontario Increase in 2018

Truck Crashes Ontario

According to the Ontario Provincial Police (OPP), between January 1 and July 9, 2017, Ontario roads patrolled by the OPP saw 24 fatal accidents involving transport trucks. During the same period this year, that number rose to 33, representing a 38% increase. Overall, truck crashes in Ontario have accounted for 11% of all traffic collisions in the province this year.

In response to this troubling trend, the OPP conducted Operation Safe Trucking between July 15 and 21. During that six-day period, almost 2,500 charges were laid and 120 unsafe commercial motor vehicles were taken off the road, highlighting the continuing risks posed by dangerous trucks and negligent truck drivers.

We’ve discussed truck accidents in the past, but given these new figures provided by the OPP, we thought this would be a good time to review some of the basics of truck accidents in Ontario.

Article at a Glance

  • Transport truck accidents are usually the fault of the truck driver, and are often caused by driver inattention, defective equipment or improper maintenance, or impaired driving.
  • Drivers on Ontario roads should keep a few safety tips in mind when driving in traffic that includes commercial motor vehicles like transport trucks.
  • Truck accident claims have some similarities with other types of automobile accidents, but tend to be even more complex.

Common Causes of Transport Truck Crashes in Ontario

OPP data show that transport truck drivers are at fault in 65% of transport truck collisions in Ontario. Some of the most common causes giving rise to that statistic include:

Inattentive Driving

When drivers are not paying attention to the road, they put themselves and others at risk. This is especially true for truck drivers, whose vehicles weigh significantly more than most of the other vehicles around them.

Driver inattention can itself have several causes, including:

  • Texting or talking on a cell phone;
  • Talking to a passenger;
  • In-truck entertainment, such as music or movies;
  • Eating while driving;
  • Distracting objects or events outside of the truck; and
  • Driving drowsy.

To combat the last of those, Ontario law limits the amount of time that transport truck drivers can remain on the road without resting. And truck drivers must maintain a driving log that records how long they drive each day.

Unfortunately, those limits on driving often come up against truckers’ desire to please their bosses and trucking companies’ desire for ever-greater profits. As a result, drivers often drive more than they’re supposed to and keep inaccurate or otherwise inadequate records.

Defective Trucks and Improper Maintenance

Equipment defects are another common cause of truck crashes in Ontario. According to 2014 accident statistics, vehicle defects were present in 4% of all fatal large truck collisions that year.

As with fatigued driving, Ontario law tries to protect travelers against defective trucks by imposing certain requirements on truckers and the transportation industry regarding how often trucks must be inspected.

But, also like drowsy driving, these requirements are often viewed by trucking companies as a hindrance to profits, and so aren’t always complied with. This makes large transport trucks too often a deadly accident waiting to happen.

Impaired Driving

Finally, truck accidents can also be caused by driver impairment, such as impairment resulting from alcohol, marijuana, or even prescription drugs.

To help protect Ontarians against the effects of impaired truck drivers, since July 1, Ontario law has prohibited drivers from having any level of alcohol, marijuana, or certain other drugs in their system while operating a commercial vehicle such as transport trucks.

Safe Driving Around Transport Trucks

Just because transport truck crashes are most often caused by the truck driver doesn’t mean drivers of other vehicles don’t also have a responsibility to drive safely around large commercial trucks. To help protect yourself, your family, and the traffic around you against the risk of a truck accident, keep the following safety tips in mind:

  • Be aware of truck traffic. Driver attentiveness is a two-way street. Be mindful of the truck traffic around you. Large trucks create strong wind turbulence when driven on the highway, and that turbulence can make it difficult to control your vehicle. Be especially vigilant for trucks that have pulled off to the side of the road, as the driver may be walking around the truck.
  • Merge carefully. Large trucks cannot brake or otherwise manoeuvre as quickly as smaller vehicles. Truck drivers need to maintain greater distance from the vehicles in front of them to be able to drive safely. If you merge into a lane too close to a transport truck, you can reduce the driver’s ability to respond to an emergency or slowed traffic.
  • Don’t drive in blind spots. Trucks have large blind spots on both sides of the cab and just behind the trailer. If you drive in a truck’s blind spot, the driver of the truck cannot see you or take precautions to avoid a collision when slowing down or changing lanes. Remember, if you can’t see the driver’s face in his or her sideview mirrors, the driver can’t see you.

Your Rights Following a Transport Truck Collision

In some ways, your rights following a transport truck accident are the same as your rights in any motor vehicle accident in Ontario. As we’ve discussed before, you have the right to apply for statutory accident benefits for your injuries regardless of who was at fault in the accident. And if the truck driver was at fault, you can pursue a tort claim against the driver and the company he or she works for.

But truck cases are more complex than your typical car accident. The fact that both the driver and the company he or she works for can be held liable is one source of that complexity. Safety regulations and the records they require are another. These and other complicating factors are why it’s important to work with a lawyer experienced in handling truck accident cases.

At Preszler Law Firm, we have decades of experience representing Ontarians injured in transport truck crashes. Our lawyers understand the special factors that make trucking cases so complex and work diligently to bring such cases to a swift and satisfactory conclusion. If you’ve been injured in a truck accident, contact us today for a free consultation to discuss your case.

How Does Uninsured Motorist Coverage Work in Ontario?

Uninsured Motorist in Ontario

Every Ontario driver is required to carry auto insurance. Unfortunately, many drivers ignore this mandate. Or if they do have insurance, it is insufficient to compensate a motor vehicle accident victim for the full amount of his or her injuries. So what does the victim do in such circumstances?

Generally, the victim would turn to his or her own auto insurance policy. The Ontario Insurance Act requires all auto insurance contracts to include uninsured motorist coverage. As the name suggests, an “uninsured” motorist is a driver who lacks sufficient insurance (or the driver in a hit-and-run collision). By carrying uninsured motorist coverage, a driver is effectively insured against the risk of being injured by a driver who fails to follow the law.

If you are injured in an accident and have reason to believe the negligent driver is uninsured or underinsured, you will need to inform your insurance company. Indeed, in such cases the insurance company effectively steps into the shoes of the defendant and becomes a party to the underlying personal injury claim.

Of course, many insurance companies will deny their own responsibility in such cases and may even attempt to prove the negligent drivers actually carried valid insurance at the time of the accident.

Article at a Glance

  • Ontario auto insurance policies provide coverage in the event a negligent driver is uninsured, underinsured, or unknown (as in a hit-and-run).
  • To avoid paying out on an uninsured motorist claim, an insurance company may try to prove that the negligent driver was, in fact, insured at the time of the accident.
  • Insurance companies’ denials are subject to review by courts.

Harte v. Lavrov: Manitoba Insurer May be on the Hook for Ontario Car Accident

An Ontario Superior Court judge recently considered such a case. This lawsuit began with an auto accident in October 2008. The plaintiff was rear-ended by another vehicle. She subsequently sued the driver and his brother, who owned the vehicle. The brother failed to respond to the lawsuit, but the driver remains a party.

The plaintiff later amended her lawsuit to name her own insurance carrier, Guarantee Company of North America, as an additional defendant. The plaintiff said that based on her information, the driver and his brother “were uninsured or underinsured at the time of the accident.”

Guarantee denied this, however, and insisted the brother carried a valid auto policy issued by Manitoba Public Insurance (MPI). This led Guarantee to bring a third-party claim against MPI–effectively, a demand that Manitoba compensate Guarantee for any losses it sustains in connection with the plaintiff’s personal injury claim.

For its part, MPI argued the brother’s policy “was suspended at the time of the accident” due to non-payment of premiums. Furthermore, the brother was in breach of the policy’s residency requirement. MPI also noted that Ontario has a two-year statute of limitations that Guarantee failed to meet in filing its third-party claim.

Guarantee eventually reached a financial settlement with the plaintiff. As part of this agreement, the plaintiff “assigned” her rights in the accident lawsuit to Guarantee. This allowed Guarantee to turn around and seek damages from MPI.

Questions for the Court

All of the parties asked Justice Richard A. Lococo to answer three basic questions: First, was the brother insured by MPI at the time of the accident? Second, if so, was MPI required to “defend and indemnify” the brothers for causing the accident? And third, was Guarantee’s third-party claim against MPI barred by Ontario’s statute of limitations?

Justice Lococo answered the first two questions “yes,” and reserved final judgment on the third question.

Insurance Not Validly Revoked for Non-Payment

As noted above, MPI said there were two reasons the brother’s insurance policy was no longer in force when the accident occurred: He failed to pay his premium and he had moved to Ontario without registering his vehicle with the province. This automatically “revoked” the policy under Manitoba law, which requires a valid owner’s certificate as a condition of insurance.

Guarantee replied that MPI actually failed to follow Manitoba law when it revoked the brother’s insurance for non-payment. Furthermore, as an “out-of-province” insurer (from Ontario’s perspective), MPI was required to cover its insured vehicles when operating in Ontario. It therefore could not cite the brother’s failure to register as grounds for denying coverage.

Justice Lococo concluded that while MPI was “entitled” to revoke the brother’s policy for non-payment under Manitoba law, it was required to provide written notice of the suspension “without delay.” Here, MPI said the suspension took effect on October 4, 2008, but it did not provide the written notice prior to October 17, 2008, which was the day of the accident.

Therefore, the Court held that MPI could not rely on the brother’s non-payment to deny coverage for the accident.

MPI Can’t Deny Coverage Just Because the Defendant Failed to Register in Ontario

Similarly, Justice Lococo agreed with Guarantee that the brother’s failure to register his vehicle after moving from Manitoba to Ontario did not constitute grounds to deny coverage. There was no dispute that the brother did not register his vehicle, which is required by Ontario law. There was also no question that a failure to register is valid grounds for revoking an insurance policy under Manitoba law.

The problem here, the judge noted, is that there is “no equivalent Ontario provision that automatically denies insurance coverage with respect to an Ontario vehicle being operated in a jurisdiction outside Ontario if the vehicle is not properly registered in that jurisdiction.”

The main reason for this difference is that Manitoba has a public auto insurance system, while Ontario does not. In any case, the judge explained, it would be inconsistent to permit MPI the right to deny coverage under a legal “defence” that would not be permitted if the shoe were on the other foot–i.e., if an Ontario insurance company attempted to deny coverage in a similar Manitoba accident.

To sum up, the owner of the vehicle that caused the plaintiff’s accident was insured by MPI, and MPI is therefore required to “defend and indemnify” the brothers for any damages arising from the accident.

Learn more: Injury Claims Without Insurance in Ontario: Can it be Done?

Get Help Dealing with Uninsured Motorist Claims From a Qualified Ontario Car Accident Lawyer

As you can see, auto insurance is complicated, especially when multiple insurers are involved (none of which accept liability). That is why it is so critical to contact a qualified Toronto personal injury lawyer as soon as possible after a car accident.

The last thing you want to do while recovering from your injuries is try and sort out insurance coverage. At Preszler Law Firm, we can take that burden off your hands. Call us today to schedule a free, no-obligation consultation.

Source:

CanLII.org

The Role of Homeowner’s Insurance in a Personal Injury Claim

Homeowner's Insurance in a Personal Injury Claim

If you’re injured in a car accident in Ontario for which another person was at fault, you may already realize that you are entitled to Statutory Accident Benefits under your own auto insurance policy and third-party liability coverage under the at-fault driver’s policy. But what happens if you have a personal injury claim against another person that has nothing to do with automobiles? What kind of insurance coverage exists in such cases?

The answer depends on the circumstances of your case, but one possibility may surprise you: Ontarians are often protected against third-party liability claims through their homeowner’s insurance policy.

That’s right: In addition to protecting your home and personal property against damage and theft, your home insurance also protects you against personal liability, even for your conduct outside the home.

Article at a Glance

  • Homeowner’s insurance covers not only damage to your home and personal property, but also your liability for others’ personal injury claims against you.
  • A defendant’s homeowner’s insurance can be an important source of recovery for those injured by him or her.
  • Read your homeowner’s insurance policy carefully to understand what kind of third-party liability coverage it provides.

What’s Covered by Homeowner’s Insurance?

The Insurance Bureau of Canada, an industry association for insurance companies, classifies homeowner’s insurance policies into four categories depending on the level or type of coverage provided for a person’s home and personal property:

  • Comprehensive insurance. Comprehensive insurance covers your home and the personal property within it against all risks of direct physical loss. (Despite its name, comprehensive insurance doesn’t literally cover anything and everything. You still need to read your policy to determine what coverage is excluded.)
  • Broad insurance. Broad insurance is like comprehensive insurance for your home, but only covers your personal property against named perils.
  • Basic insurance. Basic insurance protects your home and personal property only against the perils named in your policy.
  • No Frills. Finally, a no-frills policy may be available for homes that don’t satisfy the ordinary standards for homeowner’s insurance (e.g., because of a physical defect.)

But different insurers, and different insurance policies, provide different coverage. You should carefully review your insurance policy, including its coverage and exclusion provisions, to determine how the policy protects you.

Homeowner’s Insurance and Personal Liability Coverage

Most people are not surprised to learn that their homeowner’s policy covers personal injuries that occur inside their home (like those subject to the Occupiers’ Liability Act). But what many homeowners do not realize is that the personal liability coverage of homeowner’s insurance policies also applies outside the home.

For example, imagine you are on vacation and someone injures him- or herself by tripping over your poorly placed suitcase. Or suppose you run into somebody at the park and knock him or her over. Or what if your dog bites someone after slipping away from you on a walk? Your homeowner’s insurance policy may protect you in each of these circumstances.

Of course, as with property coverage, the precise details of your coverage for personal liability depend on the wording of your policy. Some policies are more generous than others, either because the insurance company genuinely values its customers or (what is more likely) because it didn’t think through its wording.

Homeowner’s Insurance for Workplace Accidents?

That brings us to an interesting recent case: Aviva Insurance Co. v. Intact Insurance Co. This case explores when a homeowner’s policy could apply to an accident that occurred in the workplace—albeit, after hours when nobody is working.

In Aviva, Sanjay Patel was having a “jam session” with musician friends at his engineering firm after hours. One friend, Stephen Novak, fell off of a ladder and was injured. Novak issued a statement of claim naming Patel, his engineering firm, and the company that owned the building (which was also owned by Patel) as defendants.

There were three insurance policies potentially liable to pay for Novak’s injuries:

  • Royal Sun Alliance (RSA) provided commercial liability coverage for Patel’s engineering firm.
  • Aviva insured the company that owned the building where Patel’s firm was located.
  • Intact was Patel’s homeowner’s insurance company.

RSA and Aviva jointly paid for Patel’s defense. Intact’s policy said that its coverage would be “excess” coverage if another insurance policy applied. Excess insurers generally don’t participate in defending a claim or pay out until the primary insurance coverage is exhausted. So, seeing two other insurers handle Patel’s defence, Intact decided it didn’t need to.

RSA and Aviva settled with Novak following mediation, agreeing that the building owner, engineering firm, and Patel were each 1/3 liable for Novak’s total damages. Intact refused to participate in the mediation and to pay for Patel’s 1/3 personal liability. As a result, Aviva and RSA paid for that in addition to their own shares, and Aviva sought reimbursement from Intact.

After analyzing the policy language of all three insurance policies, the court sided with Aviva. Intact’s excess-insurance provision only applied if another policy provided the same coverage, but neither RSA nor Aviva did so. Those policies were commercial policies that covered Patel in his corporate capacity; only Intact provided coverage in his personal capacity.

The Importance of Homeowner’s Insurance in a Personal Injury Claim

Homeowner’s insurance can play a crucial role in Ontario tort claims—both by protecting the insured against significant personal liability and making sure that an injured third party can obtain compensation for his or her injuries.

But as the Aviva case demonstrates, it isn’t always obvious what policies apply in a case. Sometimes it takes some creative thinking and a careful investigation to determine what your options are.

If you’ve been injured as the result of another person’s negligence, whether in an automobile accident or otherwise, contact the experienced personal injury lawyers of Preszler Law Firm for a free consultation. We will investigate your claim, help you determine what insurance policies may be available to compensate you, and pursue justice in and out of court.