Article by Gabriel Lessard

A person injured in a motor vehicle collision in Ontario can submit a claim for accident benefits, Ontario’s system of no-fault insurance, and, if the collision is someone else’s fault, can sue the other driver for negligence (a tort claim). In both circumstances, the injured victim will primarily be dealing with insurance companies who are obligated to respond to the claims on behalf of their policyholders.

Sometimes it can be confusing to know whose insurance company is responsible for responding to an injured person’s accident benefits claim or tort claim. In Ontario, all licensed vehicles require insurance, so the majority of car accident victims will have some source of insurance either from their own insurance company or the other driver’s.

Typically, an injured victim will turn to their own car insurance policy for accident benefits (if they have one) and pursue the at-fault driver’s insurance for their tort claim. However, many potential factors can impact which insurance company will respond.

Certain circumstances arise where there is no insurance company to respond to a claim. A common example is a pedestrian or cyclist who is involved in a hit and run or struck by an uninsured vehicle.

In a situation where there is no insurance company to respond to an accident benefits claim or a tort claim, injured parties can turn to the Motor Vehicle Accident Claims Fund (MVACF). The MVACF was set up by the Ontario Government, as a safety net for victims in need of treatment and compensations for their injuries. The MVACF is considered the payor of last resort, which means that the individual must have exhausted all other potential sources of insurance before the MVACF will consider responding to their claims.

When must the MVACF respond in an Accident Benefits Claim

Section 268 (2) of Ontario’sInsurance Act (R.S.O. 1990, c. I.8) outlines the priority list of insurance companies who must respond to an accident benefits claim before the MVAC. A summary of the priority list for accident benefits claims is:

  1. The insurance company that insures the victim;
  2. The insurance company of the vehicle that the victim was in or was struck by;
  3. Any other vehicle involved in the incident; or
  4. The MVACF

With respect to number 1, it does not matter if the victim was not in their own vehicle when the accident occurred. Furthermore, number 1 may be the priority insurer if the victim is married to, lives with, or is financially dependent on someone with car insurance, even if the victim does not have their own policy.

As the MVACF is last on the list, the victim must exhaust all other options before they can expect the MVACF to respond to their claim for accident benefits.

When must the MVACF respond in a Tort Claim?

If the at-fault party does not have liability insurance, then an injured victim may be able to turn to their own car insurance policy for compensation prior to pursuing MVACF. This is because most car insurance policies have uninsured and underinsured coverage which protect their own insureds (the victim) in circumstances where the at-fault driver’s policy limits are too low to provide the victim with adequate compensation, the at-fault driver does not have valid insurance or the identity of the at-fault driver is unknown.

The MVACF will respond to a tort claim on behalf of the at-fault party if there are no other insurance companies required to respond to the victim’s claim which includes their own insurance company. The maximum amount that the MVACF can pay out in a tort claim is $200,000.

Residency Requirement

Section 25 of theMotor Vehicle Accident Claims Act(R.S.O. 1990, c. M.41) outlines the requirement that an individual must be a resident of Ontario to benefit from the Fund. The act states:

The Minister shall not pay out of the Fund any amount in favour of a person who ordinarily resides in a jurisdiction outside Ontario unless that jurisdiction provides persons who ordinarily reside in Ontario with recourse of a substantially similar character to that provided by this Act.”

This requirement is particularly relevant to tourists travelling in Ontario who have not purchased any car insurance. The exception is that the MVACF may still respond if the jurisdiction where the individual resides (such as another province, state, or country), has a similar system to the MVACF.

Conclusion

Knowing which insurance company is responsible for responding to your claim can be confusing. If you were uninsured or hit by an unidentified driver, you may be able to pursue a claim through the MVACF. It is important to speak with a personal injury lawyer as quickly as possible to help you understand your rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: Mondaq

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