Car accidents tend to happen close to home. But not always. Residents of Watertown, Syracuse, Oswego, towns throughout Upper New York State often make daytrips through the 1000 Islands or Kingston area. It’s important for residents of New York State to understand their rights following an Ontario car crash.
The system for injury claims in both Ontario and New York State is similar. They both have tort law at their base. Tort law includes the common law principle of negligence.
Tort law considers fault. Which driver is negligent or at-fault? The amount of compensation an injured person can recover is tied to their degree of personal responsibility or ‘liability’. A driver who is 25% at fault for a crash may only be entitled to receive compensation equal to 75% of his or her losses.
Both Ontario and New York State are what can be termed as ‘pure comparative negligence’ jurisdictions. That means an injured person is permitted to recover compensation even if he or she is largely responsible for the collision. In some U.S. States, a driver who is 50% of more at-fault for a crash may not be permitted to make a claim for compensation. These are called modified comparative negligence jurisdictions.
Ontario’s system for compensation is very similar to New York’s.
A person who has sustained injuries in a car crash in Ontario can sue the at-fault driver for damages, including compensation for medical expenses, lost wages, pain and suffering, and other expenses or losses including the cost of housekeeping and home maintenance.
Just like New York, Ontario also has a no-fault statutory accident benefits system, which provides benefits to accident victims regardless of who is at fault. These benefits include medical expenses, income replacement, and other forms of support.
Most U.S. insurance companies are licenced to operate in Ontario and as a result, they will honour claims for Ontario no-fault benefits. A New York resident may be able to choose the more favourable system of benefits.
It is important to note that in both New York State and Ontario, an injured person must first claim no-fault accident benefits before being permitted to bring a claim for compensation against the at-fault driver.
The types and amount of compensation in both New York and Ontario are governed by the nature and severity of the injury. In both jurisdictions, the courts look carefully at impairment. Injury may cause impairment but there are instances where this may not be so. A careful analysis of an injury’s impact on things such as employability and ability to engage in recreational activities is important.
3. Limitation Periods:
All legal rights are time-limited. An injured person must file a claim with the court within a set period of time. This is called the limitation period. Failure to file a claim within the limitation period could result in the loss of the right to advance an injury claim. In New York State, the limitation period for suing an at-fault driver for compensation in a car accident is three years from the date of the accident. The limitation period in Ontario is two years from the date of the accident.
4. Discoverability Principle:
There is an exception to the Ontario limitation period based on discoverability. In Ontario, no claims for pain and suffering are permitted unless a claimant can show a permanent and serious impairment of an important bodily injury. It is often impossible to know that an impairment is permanent until many months following a collision. One hopes for healing and recovery but not all injuries resolve completely. An injured person may not know an impairment is permanent until after the normal healing period has passed. In such circumstances, the onset of the limitation period may be delayed, thus extending the two-year time limit.
This ‘discoverability principle’ can be complex and even though two years may have passed since your crash, consultation with an experienced Ontario injury lawyer is vital to determine whether your rights have lapsed.
Tort claims can be complex and require the assistance of an injury lawyer familiar with the law governing injury claims in Ontario.
There is no fee for an initial consultation with a Bergeron Clifford Injury Lawyer.
Ted Bergeron is a Queen’s University graduate with degrees in Physical Education, Arts, Education and Law.
Ted’s legal career started in insurance defence litigation. He worked at a boutique law firm in Toronto, servicing only insurance companies. He switched to representing only injured clients and their families in 1995. He knows both sides of the system inside and out.
He has lectured extensively in the School of Rehabilitation Therapy, the School of Physical and Health Education and the Faculty of Law at Queen’s University. He has worked in a volunteer capacity with the Law Society of Upper Canada as an instructor in the Bar Admission Course teaching Civil Litigation.