If you are not the at-fault driver in your accident you will be able to sue the at-fault driver in Small Claims court, Rule 76 Simplified Procedure or in the Superior Court of Justice ordinary procedure, depending on what the damages you sustained may be worth.
Damages for claims up to $25,000 should be commenced in Small Claims Court. Claims worth in the range of $25,001 to $100,000 should be commenced in the Superior Court of Justice under Rule 76 – Simplified Procedure of the Rules of Civil Procedure. Claims worth above $100,000 are commenced in the Ontario Superior Court of Justice under ordinary procedure. Claims should be commenced in the region where the accident occurred.
It is important to note that the tort claim is not usually commenced immediately after the accident. This is to ensure that the court submitted claim is up to date and encompasses all the heads of damages which you may be entitled to. But there is a 2-year limitation period and the claim must be commenced within 2 years from the date of the accident.
At our firm, we take into consideration a number of factors such as the severity of your injuries and the permanent impact that it will have on your life when drafting the claim. Each case is unique and will therefore will have its own merits.
Below are the various heads of damages, under which you can make a claim against the at-fault driver and owner:
Pain and Suffering
• Threshold Test: In order for the plaintiff to meet the threshold test, he or she must have suffered a permanent serious disfigurement or a permanent serious impairment of an important physical, mental, or psychological function.
• In Ontario, the maximum compensation that an individual can receive for pain and suffering is $350,000. In order to be entitled to this amount, your injuries must meet the definition of being a paraplegic or quadriplegic.
• You may be entitled to 70% of your lost income as a result of the accident.
• Loss of Competitive Advantage or Economic Loss
• You may seek damages for future loss of income, loss off opportunity etc.
• For example, if before the accident you were working overtime, but as a result of the accident you can no longer work, or you cannot work in the same capacity as you did before the accident then you could qualify for this
• You may have had a job opportunity or were enrolled in school at the time of the accident and were unable to accept or complete school and have fallen behind then you may again be entitled to these types of damages.
• You may be entitled to hire a friend, family member, relative or professional to assist in housekeeping tasks
• Please provide your lawyer with the documentation of all invoices paid
Future Cost of Care
• The injuries you sustained in the accident, may require you to seek medical and rehabilitation benefits not covered by OHIP for the remainder of your life
• You are entitled to medical/rehabilitation benefits from your Accident Benefits carrier in the amount of $65,000 for 5 years from the date of your accident; that is if your injuries fall outside the Minor Injury Guideline (MIG).
• It may be likely that this amount from your Accident Benefits carrier may not be sufficient to pay for your medical and rehabilitation benefits and as a result you can seek damages from the party at fault for your damages in excess of the amount you receive from your Accident Benefits carrier.
Loss of Caregiving Ability
• Prior to the accident, you may have been responsible for taking care of dependants such as young children or elderly parents.
• As a result of the accident, and the injuries sustained, you may be unable to provide care to a loved one in the same capacity as before the accident.
• If you are now required to hire someone to assist with caregiving activities that you did prior to the accident, then you may then be able to seek damages under this category.
• Please note you will require evidence to substantiate these types of claims. You must keep track of all invoices, dates of attendances, type of assistance provided etc. to be successful in these types of claims.
• We recommend documenting all entries with the date, time and activity performed along with the name and contact information of the person completing the services.