Understanding the tort claims process of a motor vehicle accident

Accident Benefits

Before commencing litigation in relation to a motor vehicle accident, the injured party (i.e. the plaintiff) is required to apply for statutory accident benefits and to serve written notice of the intention to commence an action on the at-fault party (i.e. the defendant) within 120 days after the incident. The court may authorize a longer period on a motion. If requested by the defendant, the plaintiff must also provide a statutory declaration describing the circumstances surrounding the incident and the nature of the claim being made, evidence of the plaintiff’s identity, and undergo an examination by a regulated health professional at the defendant’s expense (if requested within 90 days of receiving the notice).[1] A person may still commence an action without complying with these requirements, but the court will consider the non-compliance in awarding costs.[2]

Once a defendant receives a copy of the notice, if insured under a policy of automobile insurance, the defendant must give a copy of the notice to the insurer within seven days of receiving the notice or as soon as possible thereafter.[3] Once the insurer receives the notice, it must promptly inform the plaintiff whether there is a motor vehicle liability policy issued by the insurer to the defendant and, if so, the liability limits under the policy and whether the insurer will respond under the policy to the claim.[4]  If there is a valid insurance policy available to respond to the claim, the insurer will step into the defendant’s shoes and take over the defence, including retaining legal counsel.

Statement of Claim

In order to initiate a legal proceeding in the court, the plaintiff must issue a statement of claim or a notice of action within two years of the motor vehicle accident. Where a notice of action is used, the plaintiff must file a statement of claim within 30 days of the notice of action being issued.[5] Once the pleading is served on the defendant (or defence counsel, if retained), which must be within six months of issuance, the defence will have 20-60 days to serve a statement of defence or a notice of intent to defend depending on where service was made.[6]

The steps summarized above relate only to the initiation of a tort claim for a motor vehicle accident. Once an action is commenced, the litigation follows the same trajectory as most other civil lawsuits arising from torts in Ontario, including examinations for discovery of the parties, mediation (whether mandatory, requested under the Insurance Act, or agreed upon by the parties), pre-trial conference, and trial itself. From beginning to end, the Insurance Act, several of its regulations, and the Rules of Civil Procedure serve as important guides on how to proceed with a tort claim arising from a motor vehicle accident.

A plaintiff is best served by retaining experienced counsel to help navigate the tort claims process. Contact us today for a free consultation.

[1] Insurance Act, R.S.O. 1990, c. I.8, s. 258.3(1).
[2] Ibid at s. 258.3(9).
[3] Ibid at s. 258.3(2) and (3).
[4] Ibid at s. 258.3 and 258.4.
[5] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 at s. 14.03(2) and (3).
[6] Ibid at s. 18.01 and 18.02(1).