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There’s Nothing Fair About Ontario’s “Fair Auto Insurance Plan” For Accident Victims

Kelly + Singh Lawyers LLP > Personal Injury  > There’s Nothing Fair About Ontario’s “Fair Auto Insurance Plan” For Accident Victims

There’s Nothing Fair About Ontario’s “Fair Auto Insurance Plan” For Accident Victims

Neck Injury from Accident

Earlier this week the Ontario Government announced new proposed legislation to address auto insurance called “Ontario’s Fair Auto Insurance Plan”. This newly proposed legislation – the government claims –  will once and for all tackle high insurance premiums.  You have heard that promise before, repeatedly.   It’s perhaps no surprise that the Insurance Bureau of Canada, a national lobby group for insurance companies welcomes the latest changes.

Previous government changes to the Insurance Act have reduced benefit amounts that accident victims can claim to minimal sums.   The Government very proudly announced that their plan means millions of tax payer dollars will be used to combat illusive insurance fraudsters, while taking away even more access to care from vulnerable accident victims.   As personal injury lawyers we quite often see “fraud” allegations used as a completely unsubstantiated defence strategy against claims from the real accident victims we represent. Insurance companies will often use “fraud” allegations to infringe on accident victims rights – in fact the lawyers at Kelly + Singh won a Court of Appeal ruling in 2015 against an insurance company for breaching the privacy rights of their own insured. Check out our blog on the ruling here.

Unfortunately, it’s clear that this plan falls well short of any standard of being “fair” for accident victims.  There is virtually nothing in the plan that provides accident victims with any relief from the very insurance company – friendly legislation that the Ontario government has put into place. Here we talk about the most unforgiving aspects of Ontario’s Auto Insurance Regime when it comes to accident victims’ rights that will remain completely unchanged under the new “fair plan” – in fact things are about to get worse.

In Ontario an accident victim isn’t allowed to commence a law suit against an at fault driver unless they’ve applied for Accident Benefits from their own insurer. The aim of the system is to push most injured victims into a “no fault” compensation system from their own insurance company.

Under the new plan the government will take a “cookie cutter approach” to most accident- benefits injury claims by standardizing treatment plans for the most common types of injuries. The problem is even if injuries are common – victims are unique, and treatment options have to be tailored to the unique situation of each victim taking into account their pre-accident health. A 65 year old accident victim who has degenerative disc disease, osteoarthritis and suffered a fall in the previous year injuring her back, isn’t going to respond to a standardized treatment plan for whiplash injuries in the same way as a 22 year old student athlete with no previous injuries.

Under the new “fair” plan (designed at the request of Finance Minister Sousa by the former Chair of the WSIB, David Marshall,) accident victims will no longer be able to settle out their accident benefit claims. If you have a serious injury, you will be dependent upon the insurance company to approve any and all future treatment.  This means private for-profit insurance corporations (which Mr. Marshall believes can be transformed into centres of compassionate care) will have the ultimate say indefinitely about whether an accident victim requires treatment. In other word’s accident victims lose the power to control their treatment by opting for a settlement. We wrote an earlier blog about the Marshall Report.

The new “fair” plan also proposes the establishment of “neutral hospital based assessment centers” that the government envisions will do away with the need for insurance medical reports.  Given the current state of overcrowded, understaffed and under equipped hospitals and the long waiting lists to see specialists now, one wonders how these hospital assessment centres will handle the volume of car accident victims.  Will doctors opt for the income generated by these assessments, resulting in even longer waiting lists for people needing OHIP funded treatment?

The purpose of accident benefits as originally envisioned in 1990 was to provide significant help and compensation on a no-fault basis so that very few people would need to pursue a lawsuit against the negligent driver.  But in recent years the government has continued to make successive and massive cutbacks to no-fault benefits. The result is that today those benefits provide very little help to accident victims,  but the government has left unchanged the obstacles deliberately put in place to deter people from suing the at fault driver. We wrote an earlier blog about the massive cut backs to no-fault benefits.

In Ontario the first $37,000 dollars of any pain and suffering damages award won in a law suit commenced against the at fault driver belongs to the insurance company of the person at fault. This was deliberately legislated by the Ontario government to deter accident victims from suing someone who injured them.  What this means is that if you sue in court, the insurer of the person that caused your injury, gets to keep the first $37,000 of your court judgment.  That amount will continue go up every year with inflation. This is referred to as the deductible. This means that, for example, if an injured victim is awarded even $35,000 dollars for pain and suffering, they get nothing.

To add insult to injury – a 2012 Court of Appeal court ruling[1] held that a clear intention of the legislation was that where an accident victim has had the horrible misfortune of being injured in two or more consecutive accidents (and where they are completely faultless and sues more than one at fault driver) this deductible is stacked for each accident. This means instead of a $37,000 deductible, for two accidents the deductible is $74,000 and for three accidents its $111,000.

In Ontario, even if a Jury does award you compensation for your injuries in a car accident, a judge can make a ruling on what’s referred to as “the threshold test” and decide that irrespective of the jury award, your injuries aren’t permanent or serious or affect any important function in your life, this would wipe out your entitlement to the award, regardless of what the Jury verdict is.

What most people don’t know is that when an innocent accident victim sues, and ends up with nothing because of the deductibles or a negative threshold ruling, they now have to pay the insurance company’s legal costs which could be $100,000 or more.

Unfortunately, accident victims don’t have a powerful lobby group like the Insurance Bureau of Canada that represents the interests of insurance companies, and it seems as a result, the government’s new plan does absolutely nothing to address the oppressive legislation that denies accident victims the treatment and compensation they deserve. It certainly leaves most personal injury lawyers wondering what is it that’s so “fair” about this plan?

[1] Martin v. Fleming, 2012 ONCA 750.

Have you been injured in a car accident? Find out how the lawyers at Kelly + Singh can give you the representation you need to fight for your right to fair compensation. Contact us for a no obligation, free initial consultation.

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