Can an Injured Passenger Sue in Ontario?

ewiley43

1 hour ago

10 min read

Personal Injury Lawyer

Hillier & Hillier Personal Injury Lawyers

Yes. You may be able to sue the driver of the vehicle in which you were a passenger and the driver of the other vehicle, provided they were at fault. In certain circumstances, this may involve commencing a lawsuit against a family member such as a parent or a spouse.

While it may be difficult to commence a claim against a close family member, you should do so if your family member was partially at fault for the accident. Failing to do so may result in you being undercompensated. There is little advantage to not pursuing a claim against the driver of your vehicle, even if that person is a family member, since the other driver will likely bring them into the litigation in any event.

An injured passenger may also commence a claim for accident benefits.

Why Do I Need to Sue a Family Member If the Other Driver Was at Fault?

You may need to sue a family member if they were partially at fault for the accident and even if the other driver was predominantly at fault. Otherwise, you may be undercompensated.

This is especially true if your injuries are severe, the other driver is uninsured, or the other driver’s policy limits are insufficient to fully respond to your claim. Section 1 of the Negligence Act, R.S.O. 1990, c. N.1, states that all at-fault drivers are jointly and severally liable to compensate you for your injuries regardless of their respective degrees of fault.

As such, even if the driver of your own vehicle is only partially at fault, their insurer will be liable to compensate you for your damages up to the limits of their policy, where the other driver was uninsured. Alternatively, the driver of your vehicle’s insurer may compensate you for the shortfall between the other driver’s insurance and the value of your claim up to the limits of its insurance policy.

For example, if your family member is only found to be 1% at fault for the accident, and the other driver is 99% at fault but has no insurance and no assets to compensate you for your injuries and damages, then your family member’s insurer will be required to fully compensate you for all damages you sustain up to the limits of its policy despite being only 1% responsible for these. If you did not proceed against your family member, you may not be able to recover any damages in this scenario.

In another example, imagine that your claim is worth $2,000,000 but the other driver’s insurance policy limit is $1,000,000. Suing only the other driver will result in you recovering half of your damages, assuming the other driver has no additional insurance or assets available to satisfy your claim. If you also name the driver of your vehicle, who also has an auto policy with limits of $1,000,000, then there will be no shortfall in insurance to respond to your claim assuming you are able to establish this driver is at least 1% responsible.

Another example of why it is important to pursue all at-fault drivers, even if they are a family member, is where there are multiple injured passengers. Where multiple passengers sustain injuries, the other driver’s available policy limits may need to be shared among the injured parties, potentially leaving them undercompensated. In this case, it is necessary to also sue the at-fault driver of your vehicle, even if a family member, to access an additional policy of insurance.

As can be seen from the above examples, failing to sue the driver of your vehicle even if they are only partially at fault can have serious consequences for your claim.

What If I Sue My OPCF 44R Carrier but Not the Driver of My Vehicle?

Another important reason why you must pursue all at-fault drivers (and other at-fault parties that contributed to the accident) is to avoid prejudicing your claim against your OPCF 44R carrier.

In Ontario, you may be able to commence a claim against your own insurance company where the available insurance limits are not sufficient to fully respond to your claim. Typically, the OPCF 44R carrier’s maximum exposure will be the limits of your policy minus the policy limits of the at-fault drivers. If the at-fault driver’s policy limits are $1,000,000 and your OPCF 44R carrier’s limits are $2,000,000, then you may claim the first $1,000,000 from the at-fault driver and the excess against your OPCF 44R carrier up to a maximum of $1,000,000 ($2,000,000 - $1,000,000).

However, if you fail to sue the driver of your vehicle who also has an insurance policy with limits of $1,000,000, and they are subsequently found to be at least 1% at fault (in a third-party claim by the OPCF 44R carrier), then your claim against your OPCF 44R carrier will fail. The availability of $2,000,000 in insurance from the at-fault drivers will reduce your OPCF 44R carrier’s exposure to zero ($2,000,000 - $2,000,000) even if you did not sue all at-fault drivers (Tuffnail v. Meekes, 2020 ONCA 340). As well, you will recover nothing from the driver of your vehicle since you did not sue them. The result is that you will be significantly undercompensated for failing to sue the driver of your vehicle.

Failing to sue the partially at-fault driver of your own vehicle because they are a family member may also create barriers to settling your claim against your OPCF 44R insurer. The OPCF 44R will be unlikely to contribute anything towards the settlement where you failed to sue the at-fault driver whose insurance matches or exceeds the insurance limits of your OPCF 44R endorsement. For more information on claims against your own insurer where there is insufficient insurance, see "What if I am injured by a driver with inadequate insurance" by Hillier & Hillier.

Can My Family Member Who Was Driving and I Retain the Same Lawyer to Sue the Other Driver?

If you were involved in an accident and your family member was driving the vehicle in which you were a passenger, then you both may be able to retain the same lawyer if your family member was not at all at fault for the accident.

Even if your family member was partially at fault, your lawyer may, in certain circumstances, be able to represent both of you in claims against the other driver. However, this arrangement requires careful consideration of the potential for a conflict of interest.

If your family member was partially at fault and you decide to proceed against your family member, then you will need to retain separate lawyers to represent you in your respective claims for damages. This will typically occur where the value of your claim exceeds the insurance limits of the other driver, and you need to access the policy of the driver of your vehicle who was also at fault for the accident. A lawyer cannot represent two clients from the same accident who are adverse in interest as this is a clear conflict of interest.

When Will I Need to Sue the Driver of the Vehicle in Which I Was a Passenger?

If the driver of your vehicle was completely at fault for the accident, then you will need to sue that driver.

However, even if the other driver was predominantly at fault and the driver of your vehicle was partially at fault, you may need to sue the driver of your vehicle even if it is a family member. Examples of this scenario include:

the other driver made a left-hand turn in front of your vehicle on a green light, but the driver of your vehicle was speeding
the other driver entered your lane of traffic and caused a head-on collision, but the driver of your vehicle was distracted by the radio or cellphone and could have otherwise avoided or reduced the severity of the collision
your vehicle was rear-ended, but the driver of your vehicle made an abrupt stop
the driver of your vehicle was making a turn onto a road from a private driveway and was struck by a speeding vehicle
your vehicle was struck by an oncoming vehicle which entered your lane of traffic, but the driver of your vehicle was under the influence of alcohol, which delayed their reaction time.

The above are some examples of circumstances in which the driver of your vehicle may be partially at fault even though the driver of the other vehicle was predominantly at fault.

What Are the Consequences for a Family Member if I Successfully Sue Them?

While many individuals are reluctant to sue a family member who may take being sued personally, it must be remembered that you are really suing the insurance company of the family member. The insurance company will pay the costs of retaining a lawyer to defend the family member. The insurer will instruct the defence lawyer with respect to conducting the litigation. Provided there is sufficient insurance coverage, it will generally be the insurance company, rather than your family member personally, that pays compensation to satisfy your claim for damages.

Your family member will need to cooperate with the insurer, attend an examination for discovery, and potentially testify at trial. Also, the family member may have their insurance premiums increased. However, an increase in premiums may occur regardless of whether you personally commence a lawsuit against your family member. Further, the other driver will likely advance a crossclaim against the driver of your vehicle and involve them in the litigation even if you do not. As such, there is little to no advantage to be gained in not suing your family member who was driving the vehicle in which you were a passenger and was partially at fault.

The decision to sue a family member should be seen as a strategic decision, not a personal one.

The family member driving your vehicle may be personally liable for your damages if they were uninsured. However, this would be the case even if you sued only the at-fault driver, who in turn would likely crossclaim against the family member/driver of your vehicle.

What Compensation Can I Recover as a Passenger?

You may recover the following types of compensation if injured in a car accident:

general damages for pain and suffering if you can establish you sustained a permanent serious impairment of an important physical, mental, or psychological function or permanent serious disfigurement. This head of damage will be reduced by the statutory deductible of $47,913.01 for awards of $159,708.71 or less as of 2026. Awards exceeding this amount will not be reduced by the deductible.
Income loss and loss of earning capacity
Costs of medical, rehabilitation, and attendant care
Costs of housekeeping and home maintenance assistance
Other out-of-pocket expenses

It must be remembered that being involved in an accident by itself does not entitle you to compensation. You must also prove that you sustained injuries which resulted in the above types of damages. You must produce medical evidence such as clinical notes and records, employment records, income tax returns, pay stubs, and expert evidence from medical professionals and accountants to establish and calculate your damages. Expert engineering evidence may also be required to establish liability against the defendants.

For more information on the types of compensation available to those injured in a car accident, please see "How much is my car accident case worth in Ontario?" by Hillier & Hillier.

Regardless of who was at fault for the accident, you may also commence a claim for accident benefits for medical and rehabilitation benefits and potentially income replacement benefits. For more information on the types of accident benefits available to those injured in a car accident, please see "A Guide to Your Accident Benefits Claim" by Hillier & Hillier.

How Long Does a Passenger Have to Sue?

Generally, you have two years from the date that you discovered, or reasonably ought to have discovered, the material facts giving rise to your claim. Typically, the date you discovered your claim is the date of the accident but may be later in some circumstances.

As well, the following notice periods apply:

Notify your own insurer of the accident within 7 days or as soon after as practicable
Submit an application for accident benefits to the applicable insurer within 30 days of receiving the accident benefits package from your insurer
Send written notice to all at-fault drivers of your intention to commence a lawsuit within 120 days of the accident

Frequently Asked Questions

Q. Can I sue if I wasn’t wearing a seatbelt?

A. Yes, although your damages may be reduced by up to 25% to reflect the extent to which the failure to wear a seatbelt contributed to your injuries. This is known as the defence of contributory negligence which reduces the plaintiff’s damages by the extent to which they are found to have contributed to their own injuries. For more information on the defence of contributory negligence, click here.

Q. Can I sue if the driver was my husband or wife?

A. Yes. You should pursue a claim against the driver of your vehicle, even if that driver is your husband or wife, provided they were partially at fault for the accident. Otherwise, you may not be fully compensated, especially if you sustained serious injuries. The insurer of your husband or wife will retain a defence lawyer to represent your spouse and pay all legal costs associated with defending your claim. Usually, your spouse’s insurer will be responsible for compensating you, not your husband or wife. As well, the other driver will likely advance a crossclaim against your husband or wife in any event and join them to the lawsuit.

Q. What if both drivers were responsible for the accident?

A. If the driver of the vehicle in which you were a passenger and the driver of the other vehicle are both responsible for the accident, then you should pursue a claim against both drivers. Failure to do so may result in you being significantly undercompensated, especially if you sustained serious injuries.

Q. What if the at-fault driver didn’t have insurance?

A. If the other at-fault driver didn’t have insurance, you may still be able to claim against the driver of your vehicle if you can establish that they were partially at fault. Even if the driver of your vehicle was only 1% at fault for the accident, their insurer will nevertheless be 100% responsible for compensating you pursuant to section 1 of the Negligence Act up to the limits of their policy.

If the value of your claim exceeds the available insurance of all drivers, you may be able to claim the excess amount against your own insurer pursuant to the OPCF 44R endorsement to your policy. Your own insurer may be liable up to the difference between your insurance limits and all other available insurance. For example, if the at-fault driver has no insurance, the driver of your vehicle who is partially at fault has $1,000,000 in insurance, and your own OPCF 44R carrier has $2,000,000 in limits, then your own OPCF 44R carrier will be liable up to a maximum of $1,000,000 ($2,000,000 – available insurance of $1,000,000). If the value of your claim is $1,500,000, you may recover the first $1,000,000 from the partially at-fault driver and the remaining $500,000 from your own insurer.

Why Hillier & Hillier?

If you were injured as a passenger in a motor vehicle accident, you should promptly consult with a personal injury lawyer to ensure important deadlines are met and that you pursue all necessary parties in a lawsuit. You should also understand that suing a family member is a strategic decision, rather than a personal one, and that the other driver will likely crossclaim against the family member who was driving your vehicle in any event.