In most Canada provinces automobile insurance for accident benefits and third party liability is compulsory. According to Transport Canada statistics there are over 150,000 injuries and fatalities resulting from road traffic accidents every year. Motor vehicle accidents including minor traffic incidents result in fines, criminal charges and claims for compensation. Canada has several acts dealing with legislation governing motor vehicle accidents, typically the Insurance Act 1990 lays guidelines for paying compensation and determining ‘fault’, the Highway Traffic Act, 1990 governs the rights and responsibilities of all vehicle drivers in Canada and the Motor Vehicle Accident Claims Act 1990 lays down compensation legislation for accident victims who have been injured or whose property has been damaged by drivers who left the accident scene and those who were not insured.
Procedures at the Scene of a Traffic Collision
Anyone involved in a motor vehicle accident, must stop their vehicle at the scene of the accident no matter how minor. Failure to do so results in prosecution with the penalties for failing to report a motor vehicle accident ranging from $200 to $1,000. Drivers will also get three demerit points (seven if they leave the scene of an accident) and in severe circumstances, their driving licence may be suspended and they may be imprisoned.
When an accident occurs, vehicles should be parked at the roadside providing this is safe. If the vehicle cannot be driven, the area around it must be cordoned off with traffic cones and breakdown triangles. The vehicle cannot be towed away until the police inform those involved that they are free to leave. When required, the police will provide details of authorized tow truck companies.
If the accident is minor with no injuries and damage estimated at less than $1,000 the local police station must be informed. The police will either attend the accident scene or direct those involved to report the incident to a Collision Reporting Centre. If this is the case, the accident must be reported to the Collision Reporting Centre closest to where the accident occurred within 24 hours from the time the accident took place; if there is no Collision Reporting Centre nearby the nearest police station will deal with the incident. The Collision Reporting Centre photograph all damage inflicted on vehicles involved in traffic collisions. They also offer help in filling out the accident report and in towing away immovable vehicles.
In more serious motor vehicle accidents where there are injured persons or damage estimated at over $1,000 or one of the parties involved has been driving under the influence of alcohol or drugs, the police will attend the scene of the accident. In such circumstances those involved must wait at the accident scene until the police arrive. When calling the emergency services to notify the police it is wise to inform the operator if medical services are needed for anyone who has been injured. You should not move any injured parties unless they are in immediate danger.
There is a significant amount of information to gather at the scene of the accident:-
• the contact details of all other drivers involved in the accident
• their driver’s licence number
• the vehicle licence plate numbers of all vehicles involved in the accident.
• the contact details for the vehicles’ registered owners
• the insurance details for all vehicles involved
• contact details for each of the passengers
• contact details for any witnesses
• try to note down any other details about how the accident happened.
Those involved in an accident should try to remain calm and avoid getting drawn into making claims or statements about the accident. The police will take statements from everyone in attendance. Once the police have dealt with the accident scene and informed those involved that they are free to, vehicles involved in the traffic collision should be taken to the nearest Collision Reporting Centre for photographing.
Criminal Charges for Motor Vehicle Accidents
Under Canadian law road traffic accidents must be reported to the police, vehicles owners must have valid insurance and all drivers must have a valid driver’s licence. Failure to adhere to these three procedures can result in legal action, which includes the suspension of a driver’s licence, a fine and in some cases a prison sentence. At the scene of an accident, vehicle owners must report their version of events to the police. Under Canadian law, drivers are compelled to aid the police in the investigation of motor vehicle accidents, but this seems to contravene every Canadian’s legal right to remain silent and not to incriminate oneself. This right has been protected by the fact that the statement given at the accident scene cannot be used in a criminal trial. Nevertheless, the police officer attending the accident may decide to make an arrest based on the information he has collected. Criminal charges vary between provinces, but generally those resulting in life imprisonment are dealt out to drivers who:
- Leave the scene of an accident or failing to stop where a death has been caused by dangerous driving
- Impaired driving resulting in the death of a person(s)
- Driving with more than 80 mgs of alcohol and causing death in a traffic collision
- Fail or refuse to take a breath test or a drugs test when it is clear that their drunken or impaired driving from drugs resulted in death
Other criminal offences resulting in a motor vehicle accident, which are dealt with by a jail sentence are:
- Driving whilst disqualified
- Dangerous driving, even if it results in no injury to others
- Fleeing from the police
- Leaving the scene of failing to stop at an accident
- Drinking and driving or being under the influence of drugs whilst driving
- Failing to take a blood, breath or drugs test
- Impaired driving resulting in injury
Minor offences, such as speeding or jumping a red light, which result in a motor vehicle accident are dealt with as provincial offences.
Making a Motor Vehicle Accident Claim
To make a valid insurance claim, insurers and / or agents must be informed about the details of any vehicle incident within seven days of the accident occurring. This may not be a reasonable time frame if for example you have been seriously injured; in such circumstances the accident must be reported as soon as you are fit to do so. Insurance companies need the following information to process motor vehicle accident claims:
• If the vehicle involved in the incident is registered to another owner, the owners name, insurance company and their insurance policy number
• The vehicle’s registration year, make, model, and licence plate number
• The date, time and location of the accident
• The number of passengers involved and details of any injuries to any party involved
• Details of damage to the vehicle
• Your version of the accident
• The details of all of those present at the accident, as detailed above
• Details of the investigating police officer including his badge number
The insurer will send the claimant a claims form often referred to as a ‘Proof of Loss’ form. What can be claimed depends on the type of insurance policy – anyone involved in an accident should familiarize themselves with the fine print of their automobile insurance policy.
Assessing the Motor Vehicle Accident Claim
Once the claim form is complete and filed with the insurer, the claim will be assessed and a claims adjuster will contact the person who submitted the claim to either meet in person or to discuss the claim over the phone. The insurance company will decide who is ‘at fault’ and whether they are partially or fully responsible. The guidelines for apportioning blame are laid out in the Fault Determination Rules detailed under the Insurance Act. Fault is apportioned to determine how the insurance companies involved will pay the claim and is independent of whether the police file charges or not. Similarly, if the police do file charges against one of the parties involved in the collision, this does not automatically mean that the insurance company will apportion all blame on the convicted party. If the insurance company decides that a driver was fully or partially at fault it will be registered on his/ her insurance policy and insurance premiums will increase on the renewal of the policy to reflect the additional liability. If a vehicle was lent to a third party who was involved in an accident, an ‘at fault’ record will be registered on the vehicle owner’s insurance policy. Disagreements over the insurance company’s assessment of the accident should be registered with the claims adjuster or complaints officer. The insurance company are obliged to disclose, which rule was used from the Fault Determination Rules to determine each motor vehicle accident claim.
Motor Vehicle Accident Dispute Resolution
Many Canadian provinces have a regulatory body responsible for resolving disputes between claimants and their insurance companies. In Ontario, the Financial Services Commission of Ontario (FSCO) helps claimants and insurance companies settle their accident benefit claims by offering dispute resolution procedures, which can save money and are an alternative to court action. These procedures are mediation, neutral evaluation and arbitration. The FSCO help to determine whether the claimant qualifies for accident benefits and what the amount should be. The claimant can choose to represent himself at these disputes, or he may consider consulting a licensed paralegal or a litigation lawyer.
The first mandatory step in dispute resolution is mediation. An impartial FSCO mediator helps the disputing parties to agree on the amount of accident benefits to be paid. If mediation fails, there are three ways to settle the dispute. First, the claimant can apply for arbitration with an FSCO arbitrator. Second, either party can file a lawsuit. Third, a non-FSCO arbitrator can resolve the dispute if both parties agree.
If the claimant wants to apply for mediation, he has to fill out an Application for Mediation form and send it to the FSCO within two years of the insurer’s refusal to pay the benefits. No fees apply. After mediation, the mediator will send a report to both parties describing what was agreed on and which issues remain unresolved. If the claimant is not satisfied and wants to go to arbitration, he has to fill out an Application for Arbitration form within ninety days of the receipt of the Mediator Report or two years if the insurer’s refusal, whichever is later. The fee is $100. Both the claimant and the insurer can appeal the order issued by the arbitrator with this Notice of Appeal Form within thirty days. The fee is $250.
If the claimant and the insurer reach an agreement without the help of an arbiter, it is called a settlement. The settlement describes the conditions under which the claim was settled. In most cases, insurance companies ask claimants to sign a document stating that they will not renew their claim for the same benefits. The claimant can reverse the settlement within two days by giving the insurance company a written notice and returning any money received as part of the settlement. It is strongly advisable that the claimant seeks legal advice before agreeing to a settlement.
If these procedures fail to resolve the dispute, the claimant should consider filing a claim with the Small Claims Court (providing the amount under dispute is less than the small claims provincial limits or with the Provincial Court if it is over this limit. In the Ontario Small Claims Court the limit is $25,000.
Claiming Compensation from the Motor Vehicle Accident Claims Fund
Several Canada provinces have compensation funds set up to help people who were involved in a motor vehicle accident where the other party had no vehicle insurance or was an unidentified driver or the driver of a stolen vehicle. In Ontario, the Motor Vehicle Accident Claims Fund (MVACF), which is regulated by the FSCO , allows traffic collision victims to make a claim for personal injury or property damage when there is no identified driver or insurance company involved. The Motor Vehicle Accident Claims Fund also recoups money from drivers and owners of uninsured vehicles.
Claims to the MVACF can only be made if the accident took place in Ontario and those involved had no insurance coverage or left the accident scene and are therefore unidentified. If one of the parties involved has insurance coverage, it is the responsibility of the insurer to cover any claims. If you live outside of Ontario, a claim can only be made if the province you reside in also has a similar accident fund and operates a reciprocal policy. To make a claim from the MVACF claimants must get a judgment against the uninsured driver then fill out an ‘Application for Payment’ under Section 7 of the Motor Vehicle Accident Claims Act and include the following attachments:
- A Judgment Order(or a certified copy) showing certificates of taxed party and party costs
- A copy of the assessed Solicitor and Client Account (in accordance with s.27 of the Act)
If the driver was unidentified then the judgment is made against the Superintendent of Financial Services; it is not necessary to fill out a claim form in this instance – the MVACF only require a judgment against the Superintendent and a copy of the assessed Solicitor and Client Account. Once the claim has been processed and agreed to the MVACF pays compensation within 14 days.
Motor Vehicle Accident Claims against You
If you were involved in a road traffic accident where someone was hurt or property was damaged and you did not have any insurance, you are likely to find that the injured parties have filed a claim for compensation against you from the MVACF. The fund will pay the compensation on your behalf but you are obliged to pay the money back into the fund. Failure to repay or set up a reliable payment process will result in a driving licence suspension. You can set up a payment plan with the MVACF by submitting a Repayment Application form along with documented proof of income and expenses – by law repayments are set at a minimum 10% of gross monthly income unless this causes undue hardship. Drivers in debt to the fund must also submit a valid Certificate of Insurance before their driving licence is reinstated. Once your payment has been received the Ministry of Transportation will reinstate your driving licence within six weeks. The fee for this service is $150.00.
If you are an uninsured driver with an accident claim against you and you disagree with the charge against you, you should file a written dispute with the court dealing with the case or the MVACF. In cases where the owner and driver are not the same, both are held jointly responsible for the debt. Failure or refusal to pay back the money given as compensation will result in a drivers licence suspension and a Writ of Seizure and Sale or the garnishing of your salary if you are employed. This means that if you own property the MVACF can sell the asset to repay your debt or force collection from your salary before it is paid to you.