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Hit by a car while crossing the street in downtown Kingston. What are my rights?

Depending on the severity of your injuries, you may be able to bring a claim, also called a tort claim, against the driver who was texting while driving and hit you as a result.  In addition, regardless of whether you can sue the driver or not, you may be eligible to receive Statutory Accident Benefits (SAB).

Filing an Ontario Pedestrian-Car Accident Lawsuit

In Ontario, it is illegal for drivers to text while driving.  In addition, the law in Ontario is favorable for pedestrians who are hit by cars.  It is presumed that drivers who hit pedestrians are at fault, and drivers have the burden to prove that they did not cause the accident or your injuries.

Suggested reading: Ontario Pedestrian-Car Accident Law-Who is at Fault After a Pedestrian is Hit by a Car or Truck?

In order to sue, however, your injuries would need to pass the “threshold test.” What this means is that your injury must be:  1. a permanent serious disfigurement, or 2. a permanent serious impairment of an important physical, mental or psychological function.  If the injury does not fall under either category, then you cannot file an Ontario car accident lawsuit.

What is a permanent and serious impairment depends on your injuries and how they affect you in your daily life.  Therefore, it is best to speak to a car accident lawyer in Kingston to help properly evaluate your case.

Filing a Claim to Receive Statutory Accident Benefits (SAB)

Even if you cannot sue, you may still receive Statutory Accident Benefits (SAB) from an applicable car insurance policy.  It may seem counterintuitive because you were not driving a car; however, Ontario car accident law treats an injured pedestrian hit by a motor vehicle like an injured driver or passenger who was in a motor vehicle accident.

In addition, regardless of who is at fault, the injured pedestrian, driver or passenger receives SAB from their own car insurance company, and not from the driver who caused the accident. Therefore, if you have a car insurance policy, you would apply for SAB from your own car insurance company.  If you do not have a car insurance policy, but are covered under an applicable car insurance policy, i.e., your father, mother, wife or husband’s auto policy, you may receive accident benefits from that insurance company.  If you are not covered under any applicable car insurance policy, you may be able to make a SAB claim under the at fault driver’s car insurance policy.

Some of the SAB you may receive include:

medical and rehabilitation care benefits,
• income replacement benefits, and
• caregiver benefits.

If you were not working at the time of the accident, you may be able to receive non-earners benefits.

It is important to note that there are strict deadlines, and you must inform your car insurance company of the accident within 7 days.  You will then receive forms from the insurance company to complete.

Feel free to call 1-866-384-5886 to schedule a free consultation.  The insurance and car accident laws in Ontario are very confusing.  The lawyers at Bergeron Clifford have been helping injured victims for 40 years.


Contact Bergeron | Clifford LLP

Let us help you if you have been injured anywhere in Eastern Ontario. Contact us at 866-384-5886 or fill out our online form. We can meet at any of our office locations, including Kingston, Ottawa, Whitby, Carleton Place, Perth or wherever is most convenient for you.

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