OMEGA AND THE EVER CHANGING FACE OF MOTOR VEHICLE
LAW Disclaimer: This article is written for informational purposes only and should not be relied upon as legal advice. In each case, specific legal advice should be obtained which will be responsive to the circumstances of the individual requiring it (Copyright and Disclosure).Since 1990, the face of motor vehicle law has been radically changed on two occasions. We now face a third scheme for the compensation of persons injured in motor vehicle accidents. As such, it is imperative to know your rights when injured in a car accident. The Right to Sue Much confusion has resulted from the legislative changes and people have failed to sue within the limitation period of two years due to a mistaken belief that there is no right to sue in Ontario. This is simply wrong. Currently, an injured party can recover money for "general damages", such as pain and suffering, if the injuries are considered "serious". This is commonly referred to as "meeting the threshold". Injuries do not have to be permanent and compensation is available for psychological injury as a result of a motor vehicle accident. In 1994, the right to sue for economic loss was taken away. As a result, an injured party would receive no-fault benefits for income loss in an amount equal to 90% of the after tax pay cheque to a maximum of $600 per week. Optional coverage could be purchased so that the weekly maximum would be $1000 per week. As Bill 164 took away the right to sue for economic loss, everyone who qualified for income replacement benefits had an actual loss of at least 10% of their after tax salary and significantly more if they were high wage earners. Omega and the Right to Sue The current government has tabled legislation, commonly referred to as Omega, which will return the right to sue for economic loss and maintain the right to sue for other losses, such as pain and suffering. Unfortunately, an innocent person injured in an accident will find even less money in his or her pockets as the government is proposing that the right to sue for economic loss be based on 85% of the individual's after-tax income. No-Fault Benefits No-Fault Benefits are available to any party injured as a result of a motor-vehicle accident, regardless of fault. These benefits include weekly wage loss replacement, benefits for those not employed, rehabilitation and medical aids. The no-fault benefits schedule, or "SABS", is a complex document and it is easy to become lost within the process. The attempt to make the process user-friendly includes the adoption of a telephone mediation and arbitration process, if a dispute arises between the insured and the insurer. In addition, in most cases, the insurer will be ordered to pay a portion of the insured's legal fees in an arbitration. Omega and No-Fault Benefits The draft Bill will radically change the benefits that an injured party is entitled to. Wage loss benefits will be cut back to 85% of after-tax income to a maximum of $400 per week, unless extra coverage is purchased. Further cuts will include longer qualifying periods for those who did not work prior to the accident and a cap of $75,000 on rehabilitation and medical benefits for what is referred to as "non-catastrophic injuries". Motor Vehicles and Sexual Assault While the Legislature is narrowing some rights for Plaintiffs, the courts have broadened access to no-fault benefits. For example, a person injured physically and/or psychologically in a sexual assault which involved a motor vehicle, may have the right to obtain benefits. Thus, a victim driven to the site of the crime or assaulted in a vehicle, will have access to these benefits. The courts have also extended benefits to a child who was bitten by a dog in a car and a shooting victim in a car jacking. Law is an ever changing concept and, as such, it is highly recommended that you consult a lawyer and determine what your rights are. Most lawyers will provide a half-hour consultation without any charge. Make sure you know where you stand. Should you need to speak to a lawyer about a personal injury or insurance issue, please contact either John Makins or Vicki Edgar by e-mail, or by phone at (519) 672-9330. If corresponding by e-mail be sure to include your name, your telephone number, and a brief message. |