As an injury lawyer practicing in Eastern Ontario, where our head office is in Kingston but with offices throughout the East in Whitby, Perth, Carleton Place, and Ottawa, one of the most common questions I get asked by new clients is “What Happens to the Person I Sue?”. Whether my meeting with this client comes after their unfortunate car accident, slip and fall, medical malpractice injury or other type of negligence, the answer is almost always “nothing”. We are very lucky that we live in a society where insurance is so common. When you sue an individual in Ontario whether it was a result of a car accident or other negligence their insurance company steps into their shoes through what is called a contractual right of subrogation and they defend the claim on their behalf. This is both an obligation of the insurer (to respond to the claim and provide coverage) and a right of the insurer (to defend the claim in the way that they see fit as opposed to in the way the insured themselves would defend the claim or not at all).
What if you live in Zimbabwe? If your wife gets killed in a car accident when she is out on her lunch break from work doing some grocery shopping, chances are that there is no insurer coming forward to provide you with income replacement for your family. There is nobody coming forward to provide you with compensation for pain and suffering or for money to hire a nanny to help with half of the child work that your wife did, or to provide money to hire someone for the half of the housekeeping that your wife did. You are simply out of luck. Luckily in Canada that is not true.
When you sue an individual in Canada you get access to their insurance coverage, as long as you can prove that they are wholly or partially at fault for your losses, and subject to proof of damages (the amount of money that a court can award you), you have access to their entire 3rd party liability insurance limits. For example the at-fault person is insured for $500,000.00 then you can receive compensation up to $500,000.00 subject to proof. Likewise for insurance limits of $1 million, $2 million or $5 million for example. The only way that a person who is sued as a result of a car accident will lose anything is if they are either denied insurance coverage by their insurer or if a court award is made against the at fault party that is larger than the amount of insurance that is greater than the amount of insurance coverage than that persona has. The at fault driver that you sue as a result of your car accident is not going to lose their home, and you are not going to take their paycheque. Thankfully this is why we are insured and thankfully this is why insurance coverage is mandatory in Ontario.
One of the most common circumstances where we get asked “What happens to the person I sue” is when the only way to access insurance coverage is through what we call “friendly lawsuits”. This is when a daughter is driving her mom to a restaurant and the daughter crashes the car because she is not paying attention while she is driving. This is what happens when a dad runs a stop light and his kids in the back get injured when they are t-boned. In the first circumstance mom sues daughter and in the second circumstance the kids get a litigation guardian and sue dad. We call these friendly lawsuits because the people involved may not actually be angry at each other, they just simple need to access the insurance coverage that is out there.
