Toronto Injury Lawyer Blog
Every single client that personal injury lawyer Brian Goldfinger has met believes that his/her case is worth at the very least, $1,000,000 (if not more).
But why stop at $1,000,000?
Why not $2,000,000?
Or $3,000,000?
How about $10,000,000?
Better yet, let’s make it $50,000,000 plus three Ferraris, a life time supply of groceries and a lakefront Muskoka cottage.
There are no limits to our imaginations and expectations for our respective cases.
But unfortunately, there are limitations at law for how much you can receive in your personal injury case, along with what exactly you can claim for.
When clients here about these limitations (essentially how the law works in Ontario), they are left disappointed and thinking that “the law sucks“. I agree. The law does suck. And it sucks especially hard for innocent car accident victims who did NOTHING WRONG, except for being in the wrong place, at the wrong time and suffering a serious injury as a result of the negligence of another individual.
When reading this installment of the Toronto Injury Lawyer Blog, please keep this in mind. All the law can do is try to make you whole, to compensate you “fairly” for your injuries. The law only in very rare cases punishes defendants with punitive or aggravated damages. Defendants are entitled to more protections under the law than innocent plaintiffs. We see these protections in the form of caps on general damages, secret credits called “deductibles“, medico-legal thresholds to hit in order to recover compensation along with damage set offs or credits for at fault defendants.
Car accident laws in Ontario have been drafted, crafted, carefully thought out and manipulated by large deep pocketed insurance companies to reduce their risk and exposure in cases like yours. The lower their risk and exposure, the more profitable these insurance companies can be.
The Ontario government for many years has caved in to insurance company demands with respect to the laws, in particular for car accident claims. The thinking was that the more insurers saved, the easier they would be able to pass along these savings to the consumer to reduce car insurance rates to make everyone happy. But ask yourself, over the past decade have your car insurance rates decreased? Likely not. But the benefits you’re eligible to receive have been slashed significantly. The end result is that Ontario consumers are paying MORE for car insurance, but getting LESS coverage and benefits under their plans.
So if there are so many barriers to recovery in Ontario, what does a $1,000,000 case look like?
Liability in these case is generally uncontested, or if it’s contested, it must go in the way of the Plaintiff. A Plaintiff can have a million dollars worth of damages, but if they cannot establish liability against a Defendant, then the case will be lost or without value.
The at fault Defendant needs to have adequate insurance coverage to pay out on a seven figure claim. In the event of an auto accident with no coverage, the Ontario Motor Vehicle Accident Claims Fund will only pay up to $200,000. That same $200,000 limit applies where a Defendant failed to co-operate with his/her insurer or there are other coverage limitations contained in the policy. A Plaintiff can succeed in getting an award in excess of the policy limits, but if there is no insurance coverage beyond the limits, collecting against even a very wealthy Defendant can be tricky.
A claim for general damages along CANNOT be a $1,000,000 claim in Canada. The Supreme Court of Canada set a cap on general damages from coast to coast know as the “Trilogy” ( (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 (SCC) [Andrews]; Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267 (SCC) [Thornton]; and Arnold v. Teno, [1978] 2 S.C.R. 287 (SCC) [Arnold]) This cap today sits at around $387,464 (depending on who you ask)
That means that the very MOST you can get for your pain and suffering is $387,464. That’s it! This is well under $1,000,000. And if a claim for pain and suffering is all you got going for your case, then your case is very limited.
Cases valued at $1,000,000 or over generally have one, or two of these common elements:
- A past and future income loss claim and/or
- A past and future care cost claim
In order to establish a past and future income loss claim, the Plaintiff needs to show that s/he held down gainful employment prior to the accident, and reported an income on his/her tax returns. If you don’t report your income on your tax returns, you won’t be able to claim it (with few exceptions) in open court. If you didn’t report it, you can’t claim it. If you didn’t make money before the accident, weren’t in school or actively search for a job, it’s a difficult argument for your lawyer to make that you would have earned money in the workforce but for the car accident. Not impossible, but tricky nonetheless.
Million dollar cases will also have a significant past and future care cost component. This can come in many different forms. Care for active care and treatment (physio, chiro, social work, counselling etc.). It may also come in the form of past and future attendant care,. Think of needing a personal support worker or nurse to assist with meal prep, clean up, clothing, toileting, transfers etc. Future care costs can also come in the form of home modifications and vehicle modifications or other transportation solutions as well. These care costs can add up and add up fast. When past and future care are live issues in personal injury cases, the dollars attributable for the claims can rise quickly. This also means that the plaintiff is very seriously injured such that s/he has lost their ability to engage in their activities of daily living independently. The greater the dollar amounts which are discussed between the parties usually means the more significant the injury.
It’s very rare to see a $1,000,000 personal injury case not have a significant contribution to one of, if not both of these headings. Basing a case on general damages for pain and suffering alone simply won’t get a Plaintiff as close as they want to that $1,000,000 threshold in Canada given the way the laws are structured. It becomes even more stringent when we consider the various sets offs, credits and other barriers to recovery there are for Plaintiffs in car accident cases in Ontario.
