According to the Ministry of Transportation, over 9 million Ontarians regularly strap themselves into their vehicle, turn on the ignition and head out for the day If I were to guess, I’d say at least two-thirds do all of the above while praying nothing happens to their car today.
Because only a bona fide masochist would willingly subject themselves to Ontario’s byzantine mixed tort/no-fault system of compensation or tango with the Financial Services Commission of Ontario (FSCO) when their insurance company refuses to compensate them fairly following a car accident, especially one involving minor injuries.
It wasn’t always this way. Prior to the introduction of the Insurance Statute Law Amendment Act, 1990 [aka the Ontario Motorist Protection Plan or OMPP], Ontarians largely lived under a tort-based system where victims received minimal accident benefits from their insurer, claimed unreimbursed expenses (special damages), such as lost wages or medical expenses, as well as compensation for pain and suffering (general damages), from the at-fault party. The majority of accident victims were represented by personal injury lawyers and, if a settlement could not be reached, the victim’s only option was to sue the at-fault driver. If this sounds straightforward, it’s because it was. It would not remain so.
In the early 1980s, compensation for lost wages marked the advent of no-fault insurance schemes. The arrival of the OMPP in 1990 introduced us to the world of first-party payers [where you claimed compensation from your own insurer instead of suing the at-fault driver’s] and no-fault accident benefits. In 1998 the FSCO was born, as well as the concept of mandatory dispute resolution services for no-fault claims.
Since then, Ontarians have been subjected to a plethora of reforms each more confusing than the next, especially for victims who have sustained minor injuries. In 2010, the Government of Ontario devised the Statutory Accident Benefits Schedule [SABS] and in 2011 amended Section 3 (1) to include a Minor Injury Guideline [MIG]. As per the SABS, a driver’s standard auto insurance policy provides them with benefits if they are injured in a motor vehicle collision regardless of who is at fault. The type and amount of benefits depends on the type of policy purchased and nature and severity of one’s injuries. Now, the MIG was meant to provide claims adjusters, health care providers and legal professionals with some clarity around entitlement to accident benefits and the evaluation of minor injury claims.
But ask almost anyone outside the insurance industry who read last year’s Scarlett decision, the appeal filed by Belair Insurance Company overturning it, and/or any stats on the efficacy of FSCO dispute resolution services and they will tell you the only thing ‘clear’ about the MIG is that it favours insurers, not victims and has not decreased auto insurance premiums as promised. It has also generated mammoth delays, thus increasing the transactional costs for victims awaiting mediation or arbitration. Some will say they’ve noticed the statutory deductible paid on general damages under $100, 000 has doubled from $15,000 to $30, 000$. Others will note the minor injuries cap slapped on medical and rehabilitation benefits not covered by |OHIP, slashing them from $100,000 to $3500. Finally, there’s the ambiguity on who bears the evidentiary burden of proving benefits entitlement and the exclusionary redefinition of attendant care benefits that has left many victims suffering from minor injuries out in the cold.
If you’re one of them, please seek the assistance of a qualified personal injury lawyer who will explain the benefits you’re entitled and help make the law work for you rather than against you.
Mr. Intraligi is a personal injury lawyer and the founder of www.intraligilaw.ca offering free consultations for all victims of car accidents, slip and falls, skiing accidents and all other type of personal injury related matters.