Accident Injury Claims

Updated by Patrick Brown LLB, March 23, 2007

The summary below applies to accidents that happen after October 1, 2003. The legislation is referred to by lawyers as Bill 198.

When a cyclist is involved in an accident involving a motor vehicle and is injured are they entitled to compensation?

Yes. They are entitled to claim what are known as no-fault accident benefits and they are also entitled to pursue a potential legal action against the negligent driver. Many individuals think that no fault means they can not sue. That is not true. Depending on who is at fault for an accident an injured cyclist can claim both no fault benefits and commence a law suit.

No-fault accident benefits

You are entitled to no-fault accident benefits regardless of who is at fault in the accident.

Who do you claim no-fault accident benefits from?

  • If you have an automobile policy or are a driver on someone’s policy, you can claim accident benefits through that policy, even if you weren’t in that car at the time.
  • If you don’t have a car, and aren’t listed as a driver on a policy, but are riding in a car at the time of the accident, you claim under the owner’s policy.
  • If you don’t have a car and weren’t riding in a car at the time (i.e., cyclist or pedestrian) you claim through the policy of the owner of the car that was involved in the collision with you. If that car didn’t have valid insurance on it, or didn’t remain at the scene (hit and run), you may claim Accident Benefits through any other car involved in the accident that did have valid insurance.
  • If none of the above situations apply, for example in a hit and run accident between a cyclist and a car, you must claim through the “last resort,” which is the Motor Vehicle Accident Claims Fund. This is administered by the provincial government, and the claims are handled for them through an independent adjusting firm. Legally, if you have nowhere else to claim Accident Benefits, you are entitled to the same benefits through the MVAC Fund.

The address of the fund is:

Motor Vehicle Accident Claims Fund
P.O. Box 85, 5160 Yonge St.
Toronto ON M2N 6L9
(416) 250-1422
1-800-268-7188

If you must claim through the fund, contact them as soon as possible to advise them. Before they will set up a claim for you, they will need something in writing from you that states you are not the owner of a vehicle and are not otherwise entitled to claim for Accident Benefits through an insurance policy.

How to Claim Accident Benefits

No fault accident benefits are claimed in addition to a lawsuit if you decide to pursue one.

Accident Benefits coverage is provided by law under every automobile insurance policy in Ontario. Because the regulations (Statutory Accident Benefits Schedule or SABS) are provincially mandated, the coverage provided is standard among insurance companies.

When making a claim for accident benefits, you must first notify the insurance company within 7 days or as soon as practical after the accident occurred.

The insurance company will then send you an Application package which you must complete within 30 days after receiving the forms and return them to the insurance company. No benefits will be payable until you complete the application and if it is outside the 30 days you will have to provide a reasonable explanation. If you have a private insurance policy or an employment benefits package, you should apply for these benefits as well since accident benefits only pay for what is not covered under these types of plans. Please remember however that the insurance company paying the accident benefits does not have a legal right to collect from you a statement, written or recorded, about the accident. You do have to provide them with reasonable information relevant to the benefits being claimed. Since a written or recorded statement taken by the insurance company may be used against you or produced in your law suit, it is recommended that you do not give one.

Detailed instructions are on the Application Form and the timelines are also listed. The Application will include a Disability Certificate that must be completed in order to qualify for a number of benefits. The Disability Certificate, which is prepared by a health practitioner, must be submitted within 10 days of the Application. This is a very short timeline and you should explain to your doctor or health practitioner the importance of completing the form in a timely manner.

In order to receive medical and rehabilitation treatment, a health professional will be required to prepare, sign and submit a Treatment Plan. A Treatment Plan is a prescribed form that must be used. An insurer can refuse to pay for treatment unless a treatment plan is submitted. In cases involving certain soft tissue injuries there are Pre Approved Framework Guidelines that may apply and a fixed package of benefits is provided without the need of submitting treatment plans.

If you require an aide or attendant to help you, attendant care benefits are available, however special forms must be completed by an occupational therapist or physician to obtain these benefits.

If you are seeking payment for income replacement benefits you must have your employer submit an Employers Confirmation Form in addition to the Disability Certificate described above.

It is very important that you read the Application carefully and review all the benefits that may be available to you.

Once the insurance company receives your papers, they are required to respond to your application within 14 days. The insurance company may require that you undergo an insurer’s medical assessment at the insurer’s expense. The insurance company must give you notice that includes: the reasons for the examination; the type of examination that will be conducted and whether your attendance is required during the examination; the name of the person or persons who will conduct the examination, the regulated health professions to which they belong and their titles and designations indicating their specialization, if any, in their professions; and if your attendance is for more than one day to provide the above information for the subsequent days. Following the assessment, you will be entitled to a report setting out the findings of the assessment. If your benefit is being denied, you are entitled to obtain a rebuttal report from your treating professional subject to certain restrictions and timelines.

If your insurance company makes a decision to deny your benefit and you disagree with it, you may dispute the outcome and file an Application for Mediation to the Financial Services Commission (“Commission”) of Ontario within two years of the insurer’s refusal. If the issue is not resolved at the mediation you may then file: 1. An Application for Arbitration with the Commission within 2 years of the refusal to pay the benefit or within 90 days of the date of the Report of the Mediator; or 2. Start a law suit against the insurance company. In either case, you should contact a lawyer for a consultation (see our lawyer list).

What Potential No-Fault Benefits (Accident Benefits) is an injured cyclist entitled to?

An injured cyclist will be entitled to make a claim for accident benefits regardless as to whether or not they were at fault or not when injury arises out of a collision with a car. Depending on various circumstances, the payment of the benefits will be from one’s own auto insurer if the cyclist also drives, the insurer for the car involved, or the Motor Vehicle Accident Fund if no insurance is available. Potential no fault benefits available are listed below.

Income Replacement Benefits

An injured person is entitled to receive weekly income replacement benefits for up to the first 104 weeks (excluding the first week) after a collision in the following circumstances:

  1. If the injured person was employed on the date of the accident and thereafter suffers a substantial inability to perform the essential tasks of his or her employment.
  2. If an injured person was not employed at the time of the accident, but worked at least 26 of the 52 weeks before the accident (or was receiving Employment Insurance benefits at the time of the accident) and thereafter suffers a substantial inability to perform the essential tasks of the employment in which the person spent most of his or her time during the 52 weeks before the accident.
  3. If an injured person was entitled to start work within one year under a legitimate written contract of employment that was made before the accident and as a result of an accident suffers a substantial inability to perform the essential tasks of that employment.

An injured person can still receive income replacement benefits after 104 weeks if the person suffers a complete inability to engage in any employment for which she is reasonably suited by reason of education, training or experience.

An injured person receives no income replacement benefits for the first 7 days after a collision and thereafter, as long as a person qualifies, he or she will receive 80% of net weekly income (after deducting taxes) and after deducting any benefits the person may be entitled to from other sources such as a disability plan at work. The maximum that can be received is $400.00 per week, unless optional coverage was purchased and, if it was, the maximum a person can receive from his or her auto insurance company is $1,000.00 per week.

These benefits are available to you up until age 65 and then they start to reduce on a gradual basis.

Non-Earner Benefits

An injured person who was not working at the time of an accident and who does not qualify for income replacement benefits is entitled to receive $185.00 per week if the person suffers a complete inability to carry on a normal life. Nothing, however, is payable for the first 26 weeks after the accident. If a person was a student at the time he or she was injured or had been a student within one year of being injured and was not yet employed, these benefits increase to $320.00 per week starting 104 weeks after the accident.

Caregiver Benefits

An injured cyclist may be entitled to a caregiver benefit if they were living with and were the primary caregiver for a person in need of care and were not being paid for these activities. The injured person must chose this benefit instead of either an income replacement benefit or a non earner benefit. The maximum amount of the caregiver benefit is $250.00 per week for the first person in need of care plus $50.00 per week for each additional person.

Medical & Rehabilitation Benefits Not Covered by OHIP or other Medical Plan

An injured cyclist is entitled to receive up to $100,000.00 of medical and rehabilitation benefits for expenses, which are not covered by OHIP or some other health or disability plan, incurred up to 10 years after the accident. If a person’s injury is catastrophic as defined by the Insurance Act, such as a serious brain injury or spinal cord injury or some other kind of catastrophic injury, a person is entitled to receive $1,000,000.00 in medical and rehabilitation benefits and these are payable over the person’s lifetime and not limited to 10 years. If optional increased coverage was purchased by an injured person, the payments discussed in this paragraph may be higher.

Attendant Care Benefits

An injured cyclist can receive up to $3,000.00 per month for two years (which is a maximum of $72,000.00) for attendant care benefits. In a catastrophic case, an injured cyclist can receive up to $6,000.00 per month to a maximum of $1,000,000.00 and there is no time limit. If optional increased coverage was purchased, these benefits may be higher.

Expenses of Visitors

A person who visits an injured person is entitled to payment of all reasonable and necessary expenses incurred as a result of the accident during the injured person’s treatment or recovery. These expenses are limited to family members and other individuals who were living with the injured person at the time. There is no payment after 104 weeks unless the injury is catastrophic.

Housekeeping and Home Maintenance Benefits”’

An injured person can receive $100.00 per week for reasonable expenses incurred for housekeeping and home maintenance, if the injured person suffers a substantial inability to perform these services and the injured person performed these services before the accident. These expenses are paid for 104 weeks unless the injury is catastrophic, in which case they are payable for longer.

Non-Payment of Accident Benefits by Accident Benefits Insurer

Where the payment of specific claims are denied in whole, or in part, by the accident benefits insurance company the injured cyclist then has a right to make an Application for Mediation over the unpaid claim at the Financial Services Commission of Ontario and if the unpaid claim is not resolved at mediation, they then have an option to proceed in one of two ways. The cyclist can make an Application for Arbitration at the Financial Services Commission of Ontario. The other way is that they can start a lawsuit in the Superior Court of Ontario. You should contact a lawyer to help you decide how to proceed (see our lawyer list). The next section describes when and for what you can sue.

Suing the at-fault driver

Again, note that no fault accident benefits are claimed in addition to a lawsuit; they are not exclusive to each other. In order to sue, it must be possible to prove that the driver is at least partially at fault in the accident. Finding witnesses at the time of the crash may later be very valuable for this purpose, as having witnesses is critical to proving fault. Witnesses at the scene often disappear and are difficult to find even when an investigator is sent out, so having multiple witnesses is better than having only one.

What damages can the injured cyclist sue for against the negligent driver?

In a lawsuit for damages, the cyclist can sue the driver and owner of a car for potential damages (compensation)that include the following:

  1. Non-pecuniary general damages for pain and suffering, loss of enjoyment of life, and loss of amenities
  2. Past and Future Loss of income or Earning Capacity
  3. Loss of household and handyperson capacity
  4. Future cost of care.

In addition, an injured cyclist is entitled to make a claim for certain out of pocket expenses not paid by the no fault benefit insurance company. The amount claimable under this category is usually very insignificant compared to the other potential categories of damages.

When can an injured cyclist sue for Non-pecuniary General Damages (Pain & Suffering, loss of enjoyment of life, and loss of amenities)?

These damages are generally referred to as damages for pain and suffering. Before any cyclist can successfully sue for this category of damages, they must prove that their injury “meets the threshold”. This can only be done if the person can show that he or she has sustained one of two types of injury:

  1. Permanent serious impairment of an important physical, mental or psychological function; or
  2. Permanent serious disfigurement.

If it is proved that a person’s injury meets the threshold, there is a $30,000.00 deductible that is applied to the award if it amounts to $100,000.00 or less. In cases where the award exceeds $100,000.00, there is no deductible. An example of a case where the $30,000.00 deductible applies is if a person’s pain and suffering damages are assessed at $75,000.00, after deducting the $30,000.00 deductible, the injured person will only receive the net amount of $45,000.00. The $30,000.00 deductible simply stays with the insurance company of the at fault driver and is not paid out.

The requirements of meeting the threshold and deducting the deductible apply only to the extent that an injured cyclist’s injuries were caused by the negligence the driver of the vehicle. The principles of “meeting the threshold” and deducting the $30,000.00 deductible do not apply to non-automobile Defendants such as municipalities (for negligently maintaining roads), taverns (for serving alcohol to a person who was obviously becoming impaired), mechanics (for not properly repairing a vehicle when asked to do so) or manufacturers (for the defective design or manufacture of a product).

Can a cyclist sue if they suffer or will continue to suffer a loss of Income?

Yes. If the injured cyclist is able to prove they suffer a loss of income or a loss of earning capacity they can advance this claim against the negligent driver. With respect to a claim for loss of income, the injured cyclist should know the following:

  1. The “meeting the threshold” principle which applies to non-pecuniary general damages does not apply to a loss of income claim.
  2. The $30,000.00 deductible in cases valued under $100,000.00 for non-pecuniary general damages does not apply to a loss of income claim.
  3. A person cannot receive any loss of income for the first 7 days after the collision.
  4. A person can only receive 80% of his or her net (after tax) loss of income up to the time of trial or settlement (less any accident benefits or disability benefits which are received). After trial or settlement, a person can receive 100% of his or her gross (before deduction for taxes) future anticipated loss of income.

What if the cyclist is suffering a reduced capacity with their household and handyperson duties, can they make a claim?

Yes. If, because of injuries suffered, a person has a reduced capacity to do such things as vacuuming, lawn cutting and gardening or snow shoveling or, if to attempt to perform these kinds of chores, a person suffers an unreasonable degree of pain during the particular chore or for a period of time after the chore is completed, a person may be entitled to claim for loss of household and handyperson capacity.

Under this category of damages, the “meeting the threshold” principle does not apply and there is no $30,000.00 deductible.

Can an injured cyclist claim for future cost of care?

Yes they can. Even in cases where the injuries are considered to be non catastrophic the cyclist can still claim for future health care expenses. This was one change that occurred with the introduction of Bill 198. Examples under this potential category of damages are these: if it is anticipated that after the date of trial or the date of settlement, a person will incur expenses, because of the nature of the injuries suffered, such as expenses for medication or for modifications to a vehicle, or for modifications to a home or cottage, then these anticipated future expenses can be claimed.

To be able to make a claim under this category of damages, a person’s injury must however “meet the threshold” that is described above. Under this category of damages there is no $30,000.00 deductible.

Can family members of the injured cyclist make a claim?

Yes, depending on the relationship and the nature and extent of the injuries. Close family members of an injured cyclist have a right to advance what are referred to as Family Law Act claims. The claim of each family member is subject to a deductible of $15,000.00 for damage awards that are less than $50,000.00. If the damage award is $50,000.00 or more, then there is no deductible.

The main categories of damages of a family member of an injured person advancing a Family Law Act claim are as follows:

  1. Loss of guidance, care and companionship.
  2. The value of nursing, housekeeping and other services the family member has performed or will perform for or on behalf of the injured person.
  3. Loss of income.
  4. Reasonable expenses incurred on behalf of the injured person.

What damages are available to the cyclist who is killed by a motorist?

Once it is proven that the driver of the car was at fault, family members of the deceased cyclist have five potential categories of damages. These are as follows:

  1. (i) Non-pecuniary general damages (For loss of guidance, care and companionship).
  2. (ii) Loss of shared family income.
  3. (iii) Loss of the value of household and handyman services the deceased performed.
  4. (iv) Funeral expenses.
  5. (v) Other expenses related to the death.

Each one of these categories of compensation are explained below.

What is Non-pecuniary General Damages (For Loss of Guidance, Care & Companionship)when a cyclist is killed?

Where a cyclist is killed as a result of the negligence of a motorist, the deceased’s spouse, children, grandchildren, parents, grandparents, brothers and sisters, are all entitled to recover non-pecuniary damages to compensate for the loss of guidance, care and companionship that each family member would have reasonable expected to receive from the deceased person had that person not been killed. This category of damages is to compensate for the loss of benefits of being in a family relationship.

Believe it or not, the Ontario Government passed legislation that resulted in a $15,000.00 deductible being used to reduce family members claims when their award for loss of care, guidance and companionship is valued at $50,000.00 or less. An example of where the $15,000.00 deductible applies is if a family member’s damages for loss for guidance, care and companionship are valued at $35,000.00. After deducting the $15,000.00 deductible the person would receive the sum of $20,000.00. On the other hand, if the person’s damages for loss of guidance, care and companionship are calculated at $55,000.00, there is no deductible and the person would receive the sum of $55,000.00.

The amounts awarded by the Ontario Court of Appeal for this type of loss have been traditionally low. For instance, the highest award in recent years for the loss of a brother or sister is $25,000.00. This means that the sibling of a deceased cyclist will only net $10,000.00 while the insurance industry will benefit from the $15,000.00 deductible. In light of soaring insurance profits, this is not fair. To add insult to injury, many cyclist do not even benefit from the so called reduce auto insurance premiums that were to take place by the use of these deductibles.

The $15,000.00 deductible for each surviving family member where the person’s damages are assessed at $50,000.00 or less only occurs when the death of the deceased was caused by the negligence of a driver. The $15,000.00 deductible rule does not apply to non-automobile defendants such as municipalities (for negligently maintaining roads), bars and taverns (for serving alcohol to the motorist who was obviously becoming impaired), mechanics (for not properly repairing a bike or vehicle when asked to do so), or manufacturers (for the defective design or manufacture of a product).

What is Loss of Shared Family Income where the cyclist is killed?

Where a cyclist is killed as a result of the negligence of a motorist, the deceased’s spouse and dependent children are entitled to recover for loss of shared family income. Specifically, they are entitled to receive a certain percentage of the deceased person’s net income, after tax and other deductions, for the years the deceased person would have worked (and in the case of dependent children, only for as long as they would have been dependent).

What can be claimed for Loss of the Value of Household and Handyperson Services the Deceased Performed?

A family member of a deceased cyclist is entitled to be paid an amount for the value of the household and handyman services the deceased would have performed for that family member had the deceased person not been killed. This includes such things as cooking, cleaning, lawn cutting, snow shoveling and the like.

What about Funeral Expenses?

Funeral expenses include not only the expenses related directly to the funeral, but other costs such as the plot, the tombstone, flowers, and long distance telephone expenses to notify family and friends and transportation expenses.

The accident benefits insurance company as stated below is responsible for paying up to $6,000.00 toward these expenses. Any amounts that remain unpaid will be payable in the lawsuit.

Other Expenses Related to the Death

Where a cyclist is killed as a result of the negligence of a motorist, the deceased’s spouse, children, grandchildren, parents, grandparents, brothers and sisters are entitled to recover certain other expenses. An example is loss of income. If a family member misses time from work and is not paid for the time off, compensation can be obtained for this loss of income.

What about other Potential No-Fault Benefits (Accident Benefits) ?

The spouse and dependent(s) of the deceased are entitled to certain amounts by way of accident benefits. The following are the basic death benefits available to a spouse and dependent(s) of the deceased from the accident benefits insurance company.

A person who was the spouse of the deceased at the time of the collision is entitled to be paid a death benefit in the amount of $25,000.00. Where the deceased did not have a spouse at the time of the accident, the amount of $25,000.00 will be paid to any dependents of the deceased in equal shares.

The dependent(s) of the deceased are entitled to be paid a death benefit in the amount of $10,000.00 which must be shared equally by all dependents who qualify.

In situations where a deceased had no spouse, there is an additional amount payable of $25,000.00 (over and above the $10,000.00) which must be shared equally by all dependents who qualify.

There is a benefit paid to cover the cost of the funeral, up to an amount of $6,000.00.

What if the cyclist suffers before he or she dies?

In addition to the above amounts, if a cyclist suffers pain and injury before they die, the estate of the cyclist may also claim “pain and suffering” damages on their behalf.