Can I Sue If the Other Driver Was Uninsured in Ontario?

Yes. If you have been injured by an uninsured driver in Ontario, you may still be able to recover compensation. Being injured by an uninsured driver in a motor vehicle accident is extremely stressful. Many people assume, wrongly, that there is no way to recover compensation if the at-fault driver has no insurance. Fortunately, Ontario law may allow you to recover compensation through your own insurer.

What is an uninsured driver?

An uninsured driver is a driver that does not carry a policy of auto insurance insuring his/her vehicle. The driver will have no insurance to respond to your claim for damages.

Similar to an uninsured driver is an unidentified driver. An unidentified driver is a driver that flees the scene of the accident (e.g., a hit-and-run accident). In this case, the unidentified driver is also uninsured as you cannot ascertain his/her identity and insurer. As a practical matter, if you are struck by an unidentified driver, you should report the accident to the police immediately and advise your insurance company as soon as possible.

The process for starting a lawsuit is the same whether you are injured by an uninsured or unidentified driver.

Who do you sue when the at-fault driver has no insurance?

In Ontario, to commence a lawsuit for compensation arising from an accident with an uninsured driver, you will need to file a Statement of Claim naming the uninsured driver and your own insurance company as defendants. Alternatively, if you were the occupant of someone else's vehicle when you were injured by an uninsured driver, you will need to advance a claim for uninsured coverage from that person's insurer.

The uninsured driver may have assets that can be sold to satisfy your claim. However, this is relatively uncommon, and you will often recover compensation from your own insurer as a result of an accident with an uninsured driver.

As you need to name the uninsured driver in the Statement of Claim, you will still need to ascertain the identity of the uninsured driver. Plaintiff’s counsel has many means available to confirm the identity of the uninsured driver by searching for motor vehicle accident reports, driver’s licence records, or licence plate records. If possible, you should try and get as much information at the scene of the accident as possible (licence plate, driver’s licence, name of the defendant, names of witnesses and contact information).

In addition to naming the uninsured driver in the Statement of Claim, you will also need to name your own insurance company as a defendant in the lawsuit. Accordingly, you should bring a valid copy of your auto insurance policy to your initial meeting with a lawyer.

Finally, you may also commence a claim for accident benefits against your own insurance company. This is a different process from starting a lawsuit for damages, which is the focus of this article.

Why name my own insurance company as a defendant?

The Insurance Act and your own auto insurance contract with your auto insurer provide two avenues to claim compensation when involved in an accident with an uninsured driver.

Section 265 of the Insurance Act indicates that every auto policy must provide for payment of a “sum” to a person that is legally entitled to recover from the owner or driver of an uninsured automobile. Essentially, section 265 states that your own auto insurer is liable to you for an accident involving an uninsured driver even though your own auto insurer has no relationship with the uninsured driver.

It is almost as if your own auto insurer steps into the shoes of the uninsured driver to defend the claim. Typically, this is what happens as uninsured drivers often ignore legal proceedings as they cannot afford to hire a defence lawyer. Often, you will proceed against your own insurer.

Alternatively, as mentioned above, if you are an occupant in someone else's vehicle and are injured by an uninsured driver, you must advance a claim against the insurer of that person's vehicle in which you were an occupant (per section 5.3.1 of the Ontario Automobile Policy).

The next important consideration is the financial extent to which your insurer will be liable for your claim. This depends on whether your auto policy includes an OPCF44R Family Protection Endorsement providing additional coverage or not.

As per s. 2(1) of Regulation 676 to the Insurance Act, your insurer's liability will be limited to $200,000 in damages for the injuries you sustain because of an accident with an uninsured driver. As such, parties injured by uninsured drivers can only recover $200,000 under the Insurance Act. This is fine if your injuries are minor and the value of your claim falls below $200,000.

But what if your injuries are significant and the value of your claim may easily exceed $200,000?

If you do not have an OPCF44R Family Protection Endorsement, then you will unfortunately be limited to a claim for $200,000 under the Insurance Act. There will be no additional insurance coverage available. Even if your claim is worth $1,000,000, you will only be able to recover $200,000.

However, if you have an OPCF44R Family Protection Endorsement, then you will have excess coverage that will respond to the portion of your claim beyond $200,000.

Most policies of insurance have an OPCF44R Family Protection Endorsement of $1,000,000 (which is the same as their at-fault liability limits). In this situation, your insurer will be liable for up to $1,000,000 for damages sustained by you in an accident with an uninsured driver. Even if your claim is worth $2,000,000, you will only recover $1,000,000. This is certainly better than the $200,000 limit under the Insurance Act, but not the most comprehensive coverage available.

Other policies of insurance have an OPCF44R Family Protection Endorsement up to $2,000,000, in which case your insurer will be liable for up to $2,000,000 for damages sustained by you in an accident with an uninsured driver. Even if your claim is worth $3,000,000, you will only recover $2,000,000.

What if I was injured by an uninsured driver while occupying someone else's vehicle and had my own OPCF44R Family Protection Endorsement?

If you were an occupant in someone else's vehicle when you were injured by an uninsured driver, you may need to add two separate insurance companies to your claim. You will need to claim against the insurer of the vehicle in which you were an occupant for uninsured coverage up to $200,000, and you will need to add your own insurer for the OPCF44R Family Protection Endorsement coverage beyond $200,000 and up to the OPCF44R limits.

What if I was injured by an uninsured driver while occupying an uninsured vehicle?

If the vehicle in which you were an occupant was also uninsured, then you advance both claims for uninsured coverage and OPCF44R coverage against your own insurer.

What if I was injured by an uninsured driver while walking or riding a bicycle?

You will again advance a claim for uninsured coverage and OPCF44R coverage against your own auto insurer. If this does not apply, then you advance both claims against the insurer of your spouse's vehicle. If this does not apply, then you advance both claims against the insurer of a vehicle owned by a person upon whom you are a dependent (ie... a parent). Alternatively, you may be able to advance claims for uninsured coverage and OPCF44R coverage against the insurer of a company vehicle to which you, your spouse, or a person you are dependent upon, has regular access.

If none of the above apply, you may advance a claim for uninsured coverage up to $200,000 against the Motor Vehicle Accident Fund. However, you will not be able to access additional coverage beyond the $200,000 limits for uninsured coverage.

Finally, you will still need to prove the value of your case by collecting medical records, tax returns, employment records, and many other types of documents. Just because your insurer may be liable for up to $200,000, $1,000,000, or $2,000,000, does not automatically mean you will be awarded or receive these amounts.

Important Takeaways

There are two important lessons from this article.

First, you may be entitled to compensation even if you were in an accident with an uninsured driver.

Second, you should always purchase an OPCF44R Family Protection Endorsement and preferably for limits of $2,000,000. Spending a modest amount on additional coverage may make a $1.8 million difference by enabling you to recover $2,000,000 instead of $200,000, assuming the value of your claim is high enough. While it is tempting to save money, spending a modest amount to provide an additional $1.8 million when you need it the most is the smartest decision you could make.

What compensation can you recover after an accident with an uninsured driver in Ontario?

You can claim the same heads of damages from an uninsured driver as you could from an insured driver. The heads of damages include general damages for pain and suffering, a loss of income, the cost of medical care and rehabilitation, and housekeeping and home maintenance assistance.

What happens if multiple people in one vehicle are injured by an uninsured driver?

Where multiple people in the same vehicle are injured by an uninsured driver, they do not each receive $200,000 in uninsured motorist coverage. Instead, they must generally share the available $200,000 in proportion to the value of their claims.

There is only one pool of $200,000 uninsured motorist coverage available, which is provided by the insurer of the vehicle.

After each person’s share of the initial $200,000 has been received, each individual will then claim the remainder of their damages from their own insurer pursuant to the OPCF44R endorsement. However, the OPCF44R insurer will only be liable up to the difference of $200,000 and the OPCF44R endorsement limits (maximum liability of $800,000 if the limits are $1,000,000 and $1,800,000 if the limits are $2,000,000) per McGrath v. Arshad, [2008] O.J. No. 5571.

As a result, multiple individuals in the same vehicle injured by an uninsured motorist may be undercompensated by virtue of having to share the initial $200,000 in limits.

For example, if two injured individuals in the same vehicle were injured by an uninsured motorist, and person A had a claim value of $2,000,000 and OPCF44R limits of $2,000,000, and Person B had a claim value of $1,000,000 and OPCF44R limits of $1,000,000, the following would occur:

• Person A, with a claim value of $2,000,000, would receive approximately $133,333.33 of the $200,000 limits (twice as much as person B because Person A’s claim value is twice as large), and 1,800,000 from her own OPCF44R carrier for a total of $1,933,333.33.

• Person B, with a claim value of $1,000,000 would receive approximately $66,666.67 of the $200,000 limits (1/2 as much as person A because Person B’s claim value is ½ that of person A’s), and $800,000 from his own OPCF44R carrier for a total of $866,666.67.

As illustrated above, both person A and person B are under compensated because they share the initial $200,000 in uninsured coverage limits before accessing their own OPCF44R limits.

By contrast, if one injured individual is in a vehicle and was injured by an uninsured motorist and had a claim value of $1,000,000 and OPCF44R limits of $1,000,000, then she would be fully compensated. She would receive the first $200,000 from her own insurer as per section 265 of the Insurance Act, and the remaining $800,000 from her own insurer pursuant to the OPCF44R family coverage endorsement.

The worst-case scenario is where multiple passengers in a vehicle are injured, and a passenger does not have his own auto insurance policy with an OPCF44R endorsement. In this case, the passenger’s only recourse is to a proportionate share of the $200,000 in uninsured limits. For example, assume four individuals in a vehicle are severely injured and each have a claim worth $2,000,000. The injured passenger who does not have his own auto policy will only be able to recover $50,000, which is his proportionate share of the $200,000 in uninsured limits, and be undercompensated by $1,950,000. Again, this underscores the importance of having a valid OPCF44R endorsement.

Having to share the initial $200,000 in uninsured motorist coverage is a more common issue than people realize. This situation could arise when you are a passenger in a friend’s vehicle and you are both injured by an uninsured driver.

FAQs: Accidents Involving Uninsured Drivers

Below are some answers to frequently asked questions from clients involved in accidents with uninsured drivers.

• What happens if the uninsured driver disappears?

This becomes an unidentified motorist claim. In this case, you will only sue your auto insurance company as you will be unable to name the defendant. Your own insurer will still be liable up to $200,000 under the Insurance Act, and up to $1,000,000 or $2,000,000 under an OPCF44R Family Protection Endorsement.

In claims involving unidentified motorists, there are additional steps that MUST be taken to protect one’s right to sue. The accident must be reported to a police officer within 24 hours of the collision, a written statement shall be provided to the insurer within 30 days or as soon after as is practicable, the statement shall indicate whether the at-fault driver’s identity cannot be ascertained, and the person must make the vehicle available for inspection upon request by the insurer.

• Can I still receive accident benefits?

Yes, as your own insurance company administers your accident benefits claim in any event and even if the at-fault driver has insurance.

• What if I was partly at fault?

You can still commence a claim against the other driver, however your award for damages will be reduced by the percentage which you are found to have contributed to the accident. This is known as the doctrine of contributory negligence. If you are found to be 20% responsible for the accident and resulting injuries, your damage award will be reduced by 20%. The defendant must prove the elements of this defence.

• Is there a deadline to sue?

Yes, it is two years from the date of the accident or when you ought reasonably to have discovered your claim, as per The Limitations Act and section 8(1) of Regulation 676.

• Do I have to pay my own lawyer upfront?

No. Our firm operates on a contingency basis such that we only charge a fee for legal services when you conclude your case. We charge a percentage of the amount you recover by way of a settlement or after trial.

• What if the uninsured driver was driving someone else's vehicle?

If the vehicle was uninsured, or the driver was an excluded driver or did not have consent to operate the vehicle, then you must advance a claim for uninsured coverage against your own insurer (or the insurer of the vehicle in which you were an occupant) as mentioned above.

If the vehicle that struck you was insured, and the owner consented to the driver operating the vehicle and the driver was not listed as an excluded driver, then that insurance may extend to the driver and will respond to your claim. This is the case even if the driver does not have their own insurance.

Every uninsured driver case is different. The amount of compensation available depends on the facts of your accident, your insurance coverage, and the severity of your injuries. An experienced personal injury lawyer can review your policy, determine whether OPCF 44R coverage applies, and explain your legal options during a free consultation.

Ava Hillier and Eddie Wiley practise exclusively in personal injury law and have extensive experience representing accident victims. If you have been injured by an uninsured or unidentified driver, call Hillier & Hillier Personal Injury Lawyers at 905 453 8636 for a FREE CONSULTATION. Our main office is in Brampton, Ontario, and we serve clients all throughout Ontario.