Hit by a Car as a Pedestrian or Cyclist in Ontario: How the Claims Work

If you are researching a hit by a car as a pedestrian Ontario claim, the rules for people outside vehicles differ in important ways from those for occupants. This page explains them in plain language.

What claims follow when you are hit by a car as a pedestrian in Ontario?

Short answer: there are two tracks, a statutory benefits claim to an insurer and a lawsuit against the driver.

1. Statutory accident benefits. An auto insurer pays these under the Statutory Accident Benefits Schedule (the "SABS", O. Reg. 34/10). Every auto policy is deemed to include them, subject to the Schedule's terms and limits (Insurance Act, s. 268 (1)).
2. A claim against the at-fault driver. This is a civil lawsuit seeking money for things like pain and suffering and lost income.

Applying for benefits is also a listed precondition to suing: an action for bodily injury arising from an automobile's use or operation "shall not be commenced" unless the plaintiff has applied for them (s. 258.3 (1)). The Act adds that an action may still be started without meeting these conditions, but the court considers the non-compliance when awarding costs (s. 258.3 (9)).

Who counts as an insured person if you were on foot or on a bike?

The SABS defines an "insured person" in relation to a particular auto policy. One category covers a person who is "involved in an accident" with the insured automobile, as long as it happens in Ontario (O. Reg. 34/10, s. 3 (1), clause (b)). Another covers the named insured, specified drivers and certain family members.

In the SABS, an "accident" is an incident where an automobile's use or operation directly causes an impairment (s. 3 (1)).

In Part VI of the Insurance Act, an "occupant" of an automobile is the driver, a passenger, or someone getting into or out of it (s. 224 (1)). A person walking or riding a bicycle is generally outside that definition, so the Act treats them as a "non-occupant" for the purpose of deciding which insurer pays.

Which insurer pays accident benefits to a non-occupant?

Section 268 (2) of the Insurance Act sets a ranked list for non-occupants. Recourse moves down the list only if recovery is unavailable at the earlier step:

Where a person could claim against more than one insurer at step 1 or step 3, the Act lets that person choose which insurer to claim from (s. 268 (4)). A named insured, or the spouse or dependant of one, is generally required to claim under that policy (s. 268 (5)), so household details can matter.

What are the deadlines for an accident benefits claim?

The SABS sets short steps:

• Notice of intention to apply: by the seventh day after the events that created the entitlement, or as soon afterward as is practicable (s. 32 (1)).
• Completed application: within 30 days after receiving the application forms from the insurer (s. 32 (5)).
• Challenging a refusal: an application to the Licence Appeal Tribunal (Insurance Act, s. 280 (2)) must be commenced within two years after the insurer's refusal to pay the amount claimed (SABS, s. 56).

What follows from a missed step depends on the facts, and timelines should be confirmed with a lawyer immediately.

How does the claim against the driver work?

The lawsuit requires proving fault and damages.

Notice and limitation period. Before suing, the plaintiff is to serve written notice of intention to sue within 120 days of the incident, or within a longer period a court authorizes (Insurance Act, s. 258.3 (1) (b)); starting without it carries a costs consequence (s. 258.3 (9)). The basic limitation period is two years, counted from the claim's discovery (Limitations Act, 2002, s. 4). Discovery happens when the person actually learned the key facts or when a reasonable person in the same position would have learned them, whichever is first (s. 5 (1)). A separate 15-year outer cutoff also applies (s. 15 (2)). The guide to injury claim time limits in Ontario covers the clock in more detail.

Thresholds. Pain and suffering damages are generally off the table unless the injured person died, or has a permanent serious disfigurement, or a permanent and serious impairment affecting an important physical, mental or psychological function (s. 267.5 (5)). Health care expenses have a similar gateway (s. 267.5 (3)). For income loss, the Act removes liability for the first seven days and for the portion above 70 per cent of gross income lost after that (s. 267.5 (1)); how that works out in a given case should be confirmed with a lawyer.

Shared fault. A pedestrian or cyclist can be found partly responsible. Where the plaintiff's own fault contributed to the damages, the court apportions them in proportion to the degree of fault found against each party (Negligence Act, s. 3); the Act also directs the court to determine each person's degree of fault (s. 1).

Which Highway Traffic Act rules come up in pedestrian and cyclist collisions?

These provisions often come up when fault is argued:

• Pedestrian crossovers. A driver approaching a crossover where a pedestrian is crossing must stop before entering and wait while the pedestrian is still on the road (HTA, s. 140 (1)). Pedestrians have their own duty not to step into the path of a vehicle so close that the driver cannot comply (s. 140 (4)).
• Passing a cyclist. A driver overtaking a bicycle must, as nearly as practicable, leave at least one metre between the bicycle and the vehicle (s. 148 (6.1)).
• Dooring. A motor vehicle door that is open or opening and contacts a cyclist or bicycle is a situation in which the person in charge of the motor vehicle must report to police (s. 199 (1) (b)), and the vehicle is deemed involved in an accident for the stay-at-the-scene duty (s. 200 (1.1)).
• Staying at the scene. Where an accident occurs on a highway, a person in charge of a vehicle directly or indirectly involved must remain at or return to the scene, render all possible assistance, and, on request, give identifying and insurance details in writing (s. 200 (1)).
• Power-assisted bicycles (e-bikes). The HTA's current definition of "bicycle" includes a power-assisted bicycle, and "motor vehicle" excludes one (s. 1 (1)); the Act notes pending amendments.

What if the driver fled or has no insurance?

The Insurance Act gives two supports in hit-and-run and uninsured-driver cases:

1. Accident benefits can still have somewhere to go. If recovery is unavailable at the earlier steps on the list, the last step is recourse against the Motor Vehicle Accident Claims Fund (Insurance Act, s. 268 (2), para. 2, subpara. iv).
2. Uninsured and unidentified motorist coverage. Every auto policy must provide for payment of sums that an insured person is legally entitled to collect as damages for bodily injury from an uninsured or unidentified automobile's owner or driver, subject to the terms, conditions, exclusions and limits set by regulation (s. 265 (1)). The definition of "person insured" includes the insured and their spouse and dependent relatives while not an occupant of an automobile and struck by an uninsured or unidentified automobile (s. 265 (2)). An "unidentified automobile" is one where the identity of either the owner or the driver cannot be ascertained (s. 265 (2)).

The Compulsory Automobile Insurance Act provides that, subject to the regulations, no owner or lessee may operate a motor vehicle on a highway, or cause or permit that, unless it is insured (s. 2 (1)), and the Insurance Act bars an action for injury damages by a person who was contravening that rule in respect of that automobile at the time (Insurance Act, s. 267.6 (1)). The guide to the Motor Vehicle Accident Claims Fund covers the fund in more detail.

What about e-scooters?

The Highway Traffic Act's list of regulations names a pilot project for electric kick-scooters (O. Reg. 389/19), but this page does not set out what that regulation provides. Whether a particular e-scooter counts as an "automobile" for accident benefits, and how fault and insurance rules apply to it, depends on the vehicle and the current regulations and should be confirmed with a lawyer.

When it makes sense to talk to a lawyer

Common triggers:

• a notice, application, or limitation deadline is approaching or may already have passed;
• the driver left the scene or cannot be identified;
• the driver or owner appears to have no insurance;
• an insurer has denied or cut back a benefit;
• the injuries may be permanent, so the threshold question matters;
• the other side says the pedestrian or cyclist was partly responsible;
• it is unclear which insurer owes benefits.

What to gather

Typical requests:

• the police report or collision report number, and any officer's contact details;
• photos of the scene, injuries and any damaged bike or clothing, plus witness details and any video footage;
• the other driver's name, plate and insurer, if known;
• the household's auto policy information, if any;
• medical records, receipts and a record of missed work.