Winning a car accident case in Ontario is difficult.
It’s not enough to have been involved in a car accident, and that accident is not your fault.
A Plaintiff also has to establish injuries/damages. The Plaintiff must also establish that his/her damages are related to the subject car accident. This is called causation.
At the end of the day, these are called personal injury cases for a reason. There must be an injury, otherwise there will be no compensation.
What makes things particularly difficult in Ontario, is that regardless of fault, the injuries are subject to two giant legal hurdles meant to defeat the Plaintiff’s case and limits their recovery.
The first hurdle is the threshold. Your injuries need to defined as a serious and permanent impairment of an important bodily function. If the injuries are not permanent, then you get zero. If the injuries are not deemed serious, then you get zero. If the injury just lasted 8 months, and then you made a full or close to full recovery, the you get zero.
All of this seems unfair; and I agree with you if you feel this way.
The second hurdle is the deductible. The insurer is entitled to a secret credit on all damages for pain and suffering. The first $38,818.97 of your award vanishes! It’s credited directly to the insurer. Is that fair? No it’s not, but this is the laws that personal injury lawyers have to work with for car accident cases in Ontario.
What’s even more disturbing is that if it’s a jury trial, your personal injury lawyer cannot mention the concept of the threshold or deductible to the jury. If your personal injury lawyer mentions these concepts, the defendant insurer will likely move for a mistrial and seek their legal costs.
So, what does it take to win a car accident case in Ontario? What are judges, juries and insurers looking for in a Plaintiff? Here are a few quick tips in no particular order from Goldfinger Injury Lawyers:
- The credibility of the Plaintiff matters a lot! Many injuries are subjective. Those injuries won’t show up on any objective medical test like a CT Scan, X-Ray or MRI. A Plaintiff can complain all they want about pain, depression, sadndess, anxiety, stiffness, loss of focus, loss of memory, loss of concentration. But if the Plaintiff is not believed by a Judge, Jury or Insurer, those complaints will fall on deaf ears. In order to establish credibility, it’s important to tell the truth and not be caught in any sort of lie or in a situation that would characterize a Plaintiff as someone who is willing to say/do anything to get what they want. A good example is the vacation example. An injured Plaintiff suggests they get terrible headaches, and cannot sit/stand for prolonged periods of time. Yet they are shown on surveillance waiting in a customs line for 2+ hours, and taking a long flight overseas for a fancy European vacation. This narrative does not bode well for a Plaintiff trying to establish a chronic pain case. How do you think a jury would react to these findings? The jury will likely think that the Plaintiff is a liar and this will be reflected in their decision.
- Show the Jury the Pain you are feeling with medication and regular treatment! It’s not enough for an injured Plaintiff to take the stand and say that they are in pain. Of course a Plaintiff is going to say that they are in pain. They stand everything to lose/gain as it’s their trial. Actions speak louder than words. This means that an injured Plaintiff needs to take action and actively do something about their pain. That means going to the doctor, keeping your appointments, taking medication, and engaging in some form of active treatment or therapy. Doing nothing will likely get you nothing; especially in a chronic pain case. Missing appointments will send the wrong message as well. With respect to medication, a lot of clients don’t like taking medication. Our lawyers understand. But this does not mean that you can’t try the medication to see if it works, or try a natural remedy. There are plenty of doctors out there who are prescribing cannabis and CBD for the treatment of chronic pain.
- Apply for disability outside of car insurance! If you are injured in a serious accident, and your injuries have rendered you disabled, then you should apply for some form of disability benefit. If you have access to private disability insurance through a company like Great West Life, Manulife, Sunlife, Desjardins etc. then you should apply for those benefits. These benefits can cover things like Short Term Disability, Long Term Disability or Mortgage Disability. These benefits can and will make a meaningful difference on your life, and in terms of showing the car insurer that you are disabled. Unemployment Insurance Disability is available to everyone if they were working prior to the car accident. Canada Pension Disability is available as well if you’ve made enough contributions in to the plan. Keep in mind that Canada Pension is NOT just an old age pension. It also has a disability component. For people who were not working, there is ODSP and Ontario Works which can be applied for. People can also apply to Revenue Canada for a disability tax credit. Your car insurance will pay either an Income Replacement Benefit under a standard auto policy of just $400/week max. Or, you may be eligible for a Non-Earner Benefit of just $185/week for up to 2 years. But, as you can see detailed above, there are other income sources which should be explored by someone who has been rendered disabled as a result of a car accident.
- Listen to your personal injury lawyer! Your personal injury lawyer has your best interests in mind. If your lawyer is taking your case on a contingency fee basis, that means that your interests are aligned. The more money your lawyer gets for his/her client, the more money the lawyer gets to recover in fees. Your personal injury lawyer has likely seen cases like yours before countless times. It’s likely the client’s first time dealing with this type of litigation. Listening to your personal injury lawyer’s advice is a good starting point towards building a successful case.
