Understanding the Difference Between Tort Claims and Accident Benefits Claims for Personal Injuries arising from Motor Vehicle Accidents in Ontario
When you or a loved one have been seriously injured in a motor vehicle accident in Ontario, you may be entitled to compensation through two different legal avenues: Tort Claims and Accident Benefits (AB) Claims. These two differing types of claims serve distinct purposes and are both governed by Ontario’s insurance laws. Understanding how each works and the ways they differ will help you navigate the claims process effectively and ensure you receive the proper compensation.
At Bergel Magence Personal Injury Lawyers, we have over 50 years of experience helping accident victims maximize their compensation and secure financial relief after being seriously injured in an accident. In this post, we break down the key differences between Tort Claims and Accident Benefits Claims, their eligibility criteria, and why you may need both.
What Is a Tort Claim?
When you sustain serious injuries in a motor vehicle accident, a tort claim is a lawsuit filed in the civil court system against any party “at-fault” party – such as another driver. In a typical tort claim, this lawsuit is defended by that driver’s insurance company, which also pays out any settlement or court award under the automobile insurance policy. If the at-fault driver has no insurance or their insurance coverage is denied, then the injured individual may claim compensation from their automobile insurer. If you were injured in a motor vehicle accident and no insurance is available to respond to your tort claim, then you may be able to recover damages from the Motor Vehicle Accident Claims Fund which is run by the Government of Ontario. Any court award for an amount over and above what is available from insurance may be recovered from the at-fault party personally.
What Can You Claim in a Tort Lawsuit?
Compensation that you may seek in a tort claim includes:
- Pain and suffering (non-pecuniary, general damages)
- Loss of income (including future earning capacity)
- Medical expenses not covered by accident benefits
- Housekeeping and home maintenance costs
- Loss of care, guidance, and companionship for family members (if a Family Law Act claim has been commenced)
Do You Need to Prove Fault?
Yes. Unlike accident benefits, which are available to all injured parties regardless of fault, a tort claim requires you to prove that another party was at fault for the accident. This is typically done through evidence such as:
- Police reports
- Witness statements
- Traffic camera/dashcam footage
- Expert accident reconstruction reports
Fault for a motor vehicle accident may be apportioned between all parties in the lawsuit. The compensation is recoverable by the party advancing the tort claim (the Plaintiff) and may be reduced by the percentage which he/she is found to be at fault for the accident. For example, if the Plaintiff is determined to be 50% at fault for the motor vehicle accident, then the Plaintiff can only recover half of his/her total damages assessed.
Legal Threshold and Deductible
The law for tort claims arising out of motor vehicle accidents in Ontario imposes a verbal threshold for the recovery of general damages (for example “pain and suffering”). The “threshold” requires that your injuries must be deemed to cause a “permanent serious impairment of an important physical, mental, or psychological function” or a “permanent serious disfigurement” for you to receive compensation for pain and suffering.
Even if your injuries from the motor vehicle accident are determined to meet the verbal threshold, unless the amount of compensation assessed for pain and suffering does not exceed a certain monetary minimum (currently, over $150,000), a monetary deductible applies (currently, over $45,000), reducing the amount you can receive. For example, if your injuries are held at trial to meet the verbal threshold and the value of your pain and suffering is assessed at $90,000, then your recovery is reduced by the “deductible” amount as the assessed amount did not exceed the monetary minimum and your net award would be less than $45,000.
Time Limit for Filing a Tort Claim
In Ontario, you generally have two years from the date of the accident to commence a tort claim by filing a Statement of Claim with the Court. Failing to file within this period can result in losing your right to pursue a tort claim.
What Is an Accident Benefits Claim?
Statutory Accident Benefits (ABs) are no-fault benefits provided in Ontario through your auto insurance policy, meaning you can access them regardless of who caused the accident. These benefits are designed to provide speedy financial support for certain benefits medical expenses, lost income, and rehabilitation.
What Can You Claim in an AB Claim?
Accident benefits include:
- Income Replacement Benefits – If you’re unable to work due to your injuries, you may receive up to 70% of your gross weekly income, capped at $400 per week (unless you have optional coverage).
- Medical and Rehabilitation Benefits – Coverage for medical expenses such as physiotherapy, chiropractic care, medications, and assistive devices.
- Attendant Care Benefits – Financial assistance for hiring a caregiver if you need help with daily activities.
- Non-Earner Benefits – If you are not employed but suffer a complete inability to carry out normal life activities, you may receive $185 per week.
- Housekeeping and Home Maintenance Benefits – Available only for those with catastrophic injuries, providing up to $100 per week for housekeeping assistance.
- Caregiver Benefits – If you are the primary caregiver for a dependent and can no longer perform your duties, you may receive financial assistance.
How to Apply for Accident Benefits
To apply, you must:
- Notify your insurance company within 7 days of the accident.
- Complete and submit the Accident Benefits Application Package within 30 days.
- Provide requested medical documentation to support your claim.
Time Limit for Filing an AB Claim
While you should notify your insurer within 7 days, you typically have up to two years to dispute a denial of benefits through the License Appeal Tribunal (LAT).
Should You File Both a Tort Claim and an AB Claim?
Yes! Many accident victims first apply for Accident Benefits to get immediate financial support and then pursue a Tort Claim if their injuries meet the legal threshold for additional compensation.
At Bergel Magence Personal Injury Lawyers, we recommend filing an AB claim immediately to cover short-term expenses while evaluating whether a tort claim is viable. Our legal team can assist with both processes to maximize your recovery.
Why You Need a Personal Injury Lawyer
Navigating the claims process can be complex, especially when insurance companies attempt to limit payouts. An experienced, skilled personal injury lawyer can help:
- Ensure you receive maximum accident benefits and compensation in tort
- Assist with drafting, filing, and processing the various forms necessary to pursue tort and AB claims
- Help gather medical and legal evidence necessary to support your case, including proving negligence and threshold in a tort lawsuit
- Negotiate fair settlements with insurance companies
- Allow you to focus on your rehabilitation by handling all the details of your claims
- Provide open communication and clarity to you during each stage of the legal process
At Bergel Magence Personal Injury Lawyers, we have over 40 years of experience helping Ontario accident victims recover the compensation they deserve. Our legal experts have recovered hundreds of millions of dollars for injured individuals and will be your advocate when you’ve been seriously hurt. Whether you need assistance with an Accident Benefits Claim or a Tort Claim, we are here to guide you every step of the way.
If you or a loved one has been injured in an accident, contact us today for a free consultation. Call 416-665-2000 or visit bergellaw.
