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Ontario Car Accident Injury Law - Can You Recover Pain and Suffering Damages Under the "Threshold Test?"

Ontario car accident law is very confusing. Injured drivers and passengers are often frustrated and do not know their legal rights after car or truck accidents.  There are many forms they may need to fill out to receive compensation for medical expenses or lost wages from their own car insurance companies.  Further, Ontario's Insurance Act (Act) places a number of restrictions on when injured drivers and passengers can sue negligent drivers for non-pecuniary damages, i.e., pain and suffering.  This is known as the "threshold test."

Before the threshold test was implemented, individuals injured in motor vehicle accidents could sue for pain and suffering regardless of the severity of their injuries.  The "threshold test" makes it more difficult for injured drivers and passengers to bring lawsuits and minimizes the exposure of auto insurance companies.

After car accidents in Kingston or Ottawa, Ontario, injured drivers and passengers may only make a claim for pain and suffering if their injuries meet a standard of severity defined by the Act.  Section 267.5(5) of Ontario's Insurance Act provides:

Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any other person present at the incident are not liable in an action in Ontario for damages for nonpecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or sustained,

(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.

The question then becomes, "what is permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function?"

This question has been widely debated by accident lawyers representing injured individuals and lawyers representing at fault drivers.  As a result, there have been many Ontario auto accident lawsuits in which courts have defined the terms, "serious," "permanent" and "impairment of physical, mental or psychological function."

What is a Serious, Permanent Injury Under the Ontario Car Accident Law?

Bumps and bruises are not going to be considered serious and permanent injuries.  Injuries have to substantially interfere with injured victims' abilities to continue their daily lives, i.e., work and usual daily activities. An Ontario court's determination of what is "serious" or "permanent" is fact and evidence driven.

Further, the analysis must take into account individual differences. Injuries that are serious and permanent for one individual may not be serious for another individual.  For example, a broken finger may be a serious and permanent injury for a concert pianist but not a serious and permanent injury for a teacher.  The concert pianist may have permanent pain in the finger or loss of range of motion in the finger which prevents her from playing piano at the caliber she did prior to the accident.

Therefore, it is important for injured car accident victims to consult with a Kingston-Ottawa car accident injury lawyer to assess and evaluate whether their injuries from the accident meet the threshold.

Help After an Accident in Ontario

The personal injury lawyers at Bergeron Clifford have 40 years of experience handling car and truck accident cases in Kingston, Ottawa and Whitby.  If you would like to discuss your  accident and injury, please do not hesitate to call us at 1-866-384-5886.

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“From my first meeting with Mr. Bergeron and Mr. Clifford I was reassured, made comfortable with the legal processes involved and well looked after. Mr. Bergeron and Law Clerk, Craig Cameron were always available to answer questions and guide me through the legal procedure. I was fortunate to be able to work with a wonderful lawyer, whose abilities I have extreme confidence in.” – S.M.

Contact Bergeron Clifford LLP If you or a loved one has suffered an injury, contact us at 877-391-2923 or fill out our online form below. With office locations across the East Region and a clientele that often has mobility issues, we are prepared to work wherever is most convenient for you. If you need us to visit you at your home or hospital, we can do that too.

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