Purchasing optional coverage through your auto insurer could be a “very wise decision” in light of changes to Ontario’s Statutory Accident Benefits Schedule and increased delays facing civil trials, Ottawa personal injury lawyer Howard Yegendorf .
Although amendments to the province’s statutory benefits provided to those injured by the use or operation of a motor vehicle came into effect two years ago, Yegendorf says many drivers are not aware what those changes mean in the event they are hurt in an accident.
“Optional accident and income replacement benefits have been available for a number of years but very rarely in my practice do I come across someone who paid for them,” he says. “It costs more but it is not an exorbitant amount. It is one of those situations where you don’t think you are going to get injured but when you do, you see how paltry the available benefits are.”
Yegendorf, founding partner of Howard Yegendorf & Associates LLP, says statutory accident benefits (SABs) were significantly reduced thanks to June 2016 changes to the Insurance Act.
“If you are involved in a car accident, you are entitled to SABs from your insurance company. Sometimes they are referred to as no-fault benefits because you receive them regardless of who caused the accident,” he says. “If someone else was at fault, you also have the option of suing the other party for benefits and expenses by making a tort claim.”
Prior to June 2016, accident victims were entitled to certain benefits based on the classification — minor, serious or catastrophic — of their injuries. Yegendorf says after the amendments, those benefit amounts were reduced significantly, particularly for serious and catastrophic injuries. The test for meeting the catastrophic definition is now higher.
Optional benefits, he says, can top-up income replacement, and double serious and catastrophic injury benefits to $130,000 and $2 million respectively.
“Imagine you became catastrophically injured because you were driving while distracted. The accident was your fault so you cannot make a tort claim. If you opted for additional benefits, you would receive $2 million in benefits. That extra $1 million would make a huge difference in your quality of life.”
Yegendorf says he has an elderly client who was hit by an SUV while she was walking to the store. She was left with serious injuries, including a shattered pelvis. Her husband owned a car and opted for doubling the serious injury payments. A year and a half post-injury, she has used almost half of those benefits, he says.
“At this point, she would have exhausted her accident benefits if not for having the benefits that her husband purchased. Now she has another $65,000 and it is coming in very handy,” he says.
Once you have exhausted your SABs, you have the option to sue the other party for any shortfall — but there are issues that may prevent that.
“First of all, there’s not always an at-fault driver. Sometimes you are the one at fault,” Yegendorf says.
As well, even if the other party is at fault, if you are unable to settle that claim relatively quickly, you could be waiting years before you receive any money.
He says due to the Supreme Court of Canada decision in R. v. Jordan — which ruled that criminal cases in the Ontario Court of Justice need to be tried within 18 months of a charge and Superior Court charges need to be tried within 30 months — civil courts are dealing with a larger backlog of cases.
“Hundreds of serious criminal cases including murders, sexual assaults and drug trafficking were stayed by courts because the accused’s constitutional right to a timely trial was infringed,” the CBC reports. “To avoid such cases, many jurisdictions in the country funnelled resources from civil courts, which handle lawsuits, personal injury claims, family law and estate claims, to handle those top priority criminal cases.”
Yegendorf says the shifting of resources has significantly delayed civil trial dates.
“It was generally a long wait before, but the Jordan decision has made the situation even worse,” he says. “If I were setting a trial date today, I wouldn’t have a date before 2020 — and that’s just setting the date. It takes about a year to get to that point.”
Someone who has exhausted their accident benefits and is waiting for their civil tort trial could be waiting a long time, Yegendorf says.
“Either they are paying out of pocket and hoping to recoup at trial or they don’t have the money and are going without treatment,” he notes.