A MVA claim – from start to finish

Get a bird’s eye view of the general process of a MVA lawsuit

If you suffered injuries in a MVA for which you were not at fault, you can seek compensation from the at-fault driver and, more particularly, his/her insurer.

In the consultation, we will review your case. The deductible and threshold are important factors in determining whether a lawsuit is feasible (they are discussed in detail in another blog post).

After the consultation, the first major step is to identify whether or not the at-fault driver was insured at the time of the MVA. This fact is usually apparent on the accident report. If the at-fault driver was insured, their insurance company will be added as a defendant.

If either of the following apply – the at-fault driver did not have insurance, or their insurance was not valid or there was a policy breach, or it was a hit and run and the identity of the at-fault driver is unknown – your insurer may be added as a defendant. Ontario insurance policies contain a standard clause that allows your insurer to stand in the place of the at-fault driver’s insurer.

The next step is to serve a notice of intention to sue on the defendant. This step is required by s. 258.3(1)(b) of the Insurance Act (or “IA”). The time period within which to complete this service is 120 days after the incident or, on motion, within such longer period as the court may authorize.

During the court proceeding, the onus of proof is on you to prove that your injuries were caused by the MVA and that your claim meets the threshold.

To prove that your impairments meet the threshold, you must provide evidence from one or more physicians that explains the nature of the impairment, its permanence, the specific function that is impaired, and the importance of the function to you. The evidence must satisfy three requirements. First, the physician who provides this evidence must be trained for, and experienced in, the treatment of the type of impairment that is alleged. Second, the evidence must meet medical standards. And third, the evidence must include the doctor’s conclusion that the impairment resulted from the MVA. The evidence takes the form of an expert report (O. Reg. 461/96, s. 4.3).

In personal injury cases, the onus of proof is on you to show that the defendant caused your injuries. But in cases where either a pedestrian or cyclist was struck by a vehicle, there is a reverse onus and the defendant – the driver of the vehicle – is liable unless they show that they are not at fault.

The standard of proof is a balance of probabilities. Proof on a balance of probabilities means that you have convinced the court that it is more likely than not that the MVA caused your injuries.

Because the standard of proof in MVA cases is a balance of probabilities, your credibility is very important. In order for the court to become convinced that your case is more likely than not, the court has to believe what you and your witnesses have to say.

If you contributed to causing the MVA and/or your injuries, any award will be decreased by the apportionment of your liability (Negligence Act, s. 3). If you did not wear a seatbelt, for instance, the defendant may argue that that precaution would have prevented or reduced your injuries.

There is also a general legal requirement that you are under a duty to mitigate. This means that you cannot recover damages that you could have avoided by taking reasonable steps, such as seeking medical treatment or taking steps to minimize your loss of income.