When to Call a Car Accident Lawyer

I was injured in a car accident which was not my fault more than 3 years ago. I have just learned that as a result of my injuries I will need surgery and may never be able to work again. Before learning this from my doctor I had believed my injuries were not that serious and I would fully recover. Can I sue the driver that hit me?

Limitations and their exceptions

‍That is a complicated question. Generally speaking, although there are exceptions, you may commence an action for damages in Ontario anytime up to 2 years after an event, or after you reasonably learned of the consequences of an event. If you know of the consequences of an event where you suffered injuries or losses, you generally lose your right to sue as of the second anniversary of the loss.

There are various exceptions to this rule. Recently, the Ontario Government has abolished limitation periods for victims of sexual assault.

Furthermore, limitations generally don’t apply to people under a legal disability, and that includes minors (people under the age of 18).There is also a legal doctrine of discoverability. Discoverability provides that a limitation period does not begin to run against a person until that person knew or ought to have known of a loss, and in some cases the extent or seriousness of a loss can be an issue.

What should you do?

‍The first thing you should do is get legal advice from a Lawyer as soon as you become aware that something has happened. There are other shorter limitation periods including notice periods which can be just a few days, arising in some circumstances. A Lawyer can give you advice and help you pursue your rights as appropriate.

Secondly, even if you think too much time has gone by, you should consult with a Lawyer. If circumstances provide an exception to the usual limitation periods, a Lawyer will be able to advise you of this fact and advocate on your behalf.

All cases are specific to their facts and the above information should not be relied upon to determine rights in particular circumstances. Lawyers often provide no obligation free and confidential consultations to prospective clients. So it is a good idea to seek out legal advice from a Lawyer if you have any doubt or questions about your rights.

What does "no fee unless you win" actually mean and how do most personal injury Lawyers get paid?

Answer: Taken literally and with knowledge of what goes into every account "no win, no fee" is a legitimate statement. That means: Yes, the Lawyer will not get a fee if you don't receive compensation. However, in addition to fees, there are also costs and disbursements.

Costs represent the defendant's legal costs that are due if you get an adverse judgment. These fall on your shoulders and not your Lawyers. Costs insurance can be available in some cases and should be explored in your initial meetings (the earlier you get it, the cheaper it is).

Disbursements are the funds paid upfront by your Lawyer to carry your file. They include things like photocopying, mail/postage, travel costs, filing costs and medical-legal assessments. A Lawyer can run up disbursements in the thousands and if successful, the defendant will pay the value of your claim plus these disbursements. However, if you're unsuccessful, these disbursements are typically due and owed by you. Meaning, if you don't "win" you owe the Lawyer what was spent to carry your file. Unpaid disbursements may also be covered through your costs’ insurance.

Most personal injury Lawyers work off contingency, meaning that they are compensated based on the result. They take a percentage of your settlement. That percentage is typically 30-35% depending on the Lawyer.

The fee isn't as simple as just taking a percentage of the overall settlement. It must be broken down in accordance with what a Lawyer is legally able to take. For instance, they cannot take more than the client receives. They cannot take "costs" which amount to about 15% of the value of your claim and are used to counterbalance your contingency fee.

Here's how it might play out:

Let's say the value of your claim is $100,000. In addition to the value of your claim, the defendant will have to cover disbursements (what was paid to run your file) and costs. A typical settlement could be broken down as follows:

• value of claim: $100,000
• disbursements: $15,000 (including HST)
• costs: $12,319.37
• DEFENDANT'S PAYMENT: $127,319.37

The Lawyer's fee is taken out of the value of the claim and not the defendant's entire payment. So if the contingency is set at 30%, the Lawyer's fee in the above example would be $30,000 + H.S.T.. The Lawyer will take the disbursements as well to cover the funds he or she spent on the file. You're left with the remainder. Here's how it works using the above example:

• defendant's payment: $127,319.37
• disbursements: (-) $15,000 (including HST)
• legal fee: (-) $30,000
• HST on legal fee: (-) $3,900
• IN YOUR POCKET: $78,416.37  

The exact calculation used could change depending on the facts of each case. As a note, claims are typically subject to pre and post-judgment interest at a variable rate. This will be added to the defendant’s payment.

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What if I or the other driver don't have insurance?

‍Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:

A rear-ends B. A doesn't have insurance. B does have insurance:

The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).

A strikes B (a cyclist). A has insurance. B doesn't have insurance:

In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.

A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:

In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:

• Accident benefits
• Death and funeral benefits
• Compensation for personal injury or property damage (except for vehicles)

Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.

Resources:

• https://www.ontario.ca/laws/statute/90i08
• https://www.ontario.ca/laws/regulation/100034

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