While you and your family may be determined to file your claim for personal injury, there are numerous legal aspects you must consider to fully prepare yourself for this long process. Hiring a lawyer to be with you in this process is necessary.
How do claims for personal injury work?
There are two ways to submit your claims for personal injury:
- through no-fault accident benefits from your insurer; or
- filing a case for damages or compensation if another person was at fault
Each of these two ways will determine the legal aspects of personal injury claims. This includes the process in filing a claim for personal injury, your rights during the whole process, and your remedies for any denial or adverse decision against you.
Either way, insurance policies from public and private entities may be involved. This will depend on your specific circumstances, so consult with your insurance provider and lawyer as soon as the accident or injury happens.
1. No-fault accident benefits
In a no-fault accident benefit, medical and other expenses will be reimbursed by your insurer regardless of who’s at fault or who was the cause of the accident or injury. However, this doesn’t mean that you’re not at fault per se. It just means that you will only deal with your insurer and that the other party will deal with theirs.
As such, it’s important to know the terms and conditions of your insurance policy, whether it’s a no-fault or at-fault policy.
In Canada, it will also depend on your province. Not all provinces operate under a no-fault insurance system. Some provinces will also require mandatory coverage for drivers and car owners, and even additional insurance coverage.
While this kind of insurance system usually works for auto insurance policies, other types of personal injury claims may also follow a similar system. However, this will again depend on the insurance policy that you bought.
2. Damages or compensation if another person was at fault
In any other case, your claims for personal injury may be settled in court. This is called a tort claim or a civil case for compensation and damages.
The process for filing a claim for personal injury in court is as follows:
2.1 Filing your Statement of Claim in court; other party will submit its Statement of Defence
2.2 Mandatory mediation (for some provinces)
2.3 Agreement on a discovery plan and the discovery process
2.4 Pre-trial conference
2.5 Trial proper
2.6 Appeal
Statute of Limitations
The provincial statute of limitations will apply to claims for personal injury.
In filing a case, it must not exceed the time limit as set by your provincial statute. If that happens, you will lose your right to file your claim for personal injury after the indicated period. As such, it's better to check with your lawyer regarding the applicable statute of limitations.
Here are some of the provincial statutes of limitations in Canada for personal injury cases:
- Ontario’s Limitations Act: 2 years
- Québec’s Civil Code: 3 years
- British Columbia’s Limitation Act: 2 years
- Alberta’s Limitations Act: 2 years
- Manitoba’s The Limitation Act: 2 years
However, there may be instances when the running of the period of limitations in filing a claim for personal injury doesn’t start immediately.
The period starts running from the event or act that caused your injury, or a reasonable time when the injury should have been discovered. An exception is when the symptoms or the injury only appear later (e.g., after a few weeks or months).
Read more about a recent case of personal injury in Ontario:
Medical reason not required to cancel benefits in personal injury case: Ontario Court of Appeal
— FAIR Association (@FAIRAssociation) February 16, 2023
In Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, Nunzio Varriano sustained injuries in a motor vehicle accident in 2015. https://t.co/DkBI8PV2s4
To know more about actual cases of personal injury, talk to a lawyer in your province. Those in Toronto, for example, can consult with a Lexpert-Ranked personal injury lawyer in Ontario.
Settlement
Because trials are adversarial in nature – not to mention time-consuming and expensive – some parties would want to settle the personal injury claim out of court.
This means that negotiation and mediation are preferred in the hopes that a settlement or a compromise agreement will be reached by both parties. Check with your personal injury lawyer for sound advice if an out-of-court settlement is better for your case.
Know more about the largest personal injury settlement amounts in Canada and how damages are computed by the court or the jury.
How are personal injury claims calculated?
There are two classes of damages in Canada that are applicable for personal injury claims: general damages and special damages.
How it is calculated is provided below, but it’s better to seek legal advice to fully assess the damages that you may claim.
1. General damages
General damages are also called non-pecuniary damages, non-monetary damages, or pain and suffering damages. These are your claims for compensation for the psychological and mental stress that you’ve experienced because of the accident or the injury.
As such, this will not apply in “no-fault” cases, since general damages are paid by the person who is alleged to have been at fault or is the source of the injury.
An exception would be when the denial of your claims by your insurer reaches the courts. Here, the mental stress because of the litigation may be the basis for claiming general damages against your insurer.
Know that general damages in Canada are limited or capped by common law. As of 2023, the cap is approximately C$450,000 which continues to increase every year due to inflation.
2. Special damages
Special damages, or pecuniary damages, are the actual financial losses or expenses that you incurred due to the accident or injury. Some examples are:
- lost income due to missed work
- estimated future income while recovering from the injury
- actual hospital bills
- treatment, therapy, and rehab expenses
- total damage to your property
- actual expenses in repairing the damaged property
When filing claims for personal injury cases, it’s important to present evidence to prove these actual and future expenses. Keep any receipts, bills, and documents as your proof in claiming special damages.
Find out how are personal injury claims settled in Canada in this article.
How long do most claims for personal injury take?
The answer depends on your specific case, so speak with a lawyer. Your lawyer can give you an idea of how long your claim for personal injury can be settled.
For the most part, claiming with your insurance company may take up to 4 to 6 weeks. Settlement or negotiations may even take longer. This must be concluded within 3 to 6 months, depending on the province you’re in.
As for the trial proper, it may even take up to 1 to 2 years depending on the complexity of your case.
If you have more questions, consult with the best personal injury lawyers in Canada as ranked by Lexpert.