Personal Injury

I was a cyclist involved in a car accident. What are my rights?

In short, the same as those of a driver or passenger. Liability may be handled differently, but the cyclist maintains a right to claim against the at-fault driver and seek benefits from the applicable insurer. Your car insurance is meant to provide accident benefits if you're involved in a car accident. It does not matter whether you were actually driving a car. As long as you have car insurance, your accident benefits should kick in. If you don't have car insurance, the at-fault driver's insurance will provide accident benefits. Either way, you should be covered by a policy. If neither of you has insurance, there's still the motor vehicle accident fund which acts as a safety net in cases where insurance is not available.

Typically, there's an assumption that the cyclist was not at fault. This does not mean you can pedal around with no regard to surrounding traffic. You still have to be diligent and you still owe yourself an obligation to proceed with reason. Any contribution found on your behalf will reduce the value of your claim. You can be deemed contributorily negligent if you don't wear the proper protective gear, or if you don't abide by the rules of the road.

Seasonal changes in traffic will often give rise to increases in car accidents involving cyclist. A good portion of the driving population does not properly adapt to these changes. This causes drivers to make assumptions they shouldn't make: disregarding their blind spot, failing to keep track of cyclist in the bike lane, opening their doors without thinking of oncoming cyclist. Unfortunately, the injuries are often devastating. Even with protective gear, the force of direct impact may leave the cyclist with serious, life-changing and permanent injuries.

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What if I or the other driver don't have insurance?

‍Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:

A rear-ends B. A doesn't have insurance. B does have insurance:

The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).

A strikes B (a cyclist). A has insurance. B doesn't have insurance:

In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.

A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:

In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:

• Accident benefits
• Death and funeral benefits
• Compensation for personal injury or property damage (except for vehicles)

Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.

Resources:

• https://www.ontario.ca/laws/statute/90i08
• https://www.ontario.ca/laws/regulation/100034

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I was injured in a car accident which was not my fault more than 3 years ago. I have just learned that as a result of my injuries I will need surgery and may never be able to work again. Before learning this from my doctor I had believed my injuries were not that serious and I would fully recover. Can I sue the driver that hit me?

Limitations and their exceptions

‍That is a complicated question. Generally speaking, although there are exceptions, you may commence an action for damages in Ontario anytime up to 2 years after an event, or after you reasonably learned of the consequences of an event. If you know of the consequences of an event where you suffered injuries or losses, you generally lose your right to sue as of the second anniversary of the loss.

There are various exceptions to this rule. Recently, the Ontario Government has abolished limitation periods for victims of sexual assault.

Furthermore, limitations generally don’t apply to people under a legal disability, and that includes minors (people under the age of 18).There is also a legal doctrine of discoverability. Discoverability provides that a limitation period does not begin to run against a person until that person knew or ought to have known of a loss, and in some cases the extent or seriousness of a loss can be an issue.

What should you do?

‍The first thing you should do is get legal advice from a Lawyer as soon as you become aware that something has happened. There are other shorter limitation periods including notice periods which can be just a few days, arising in some circumstances. A Lawyer can give you advice and help you pursue your rights as appropriate.

Secondly, even if you think too much time has gone by, you should consult with a Lawyer. If circumstances provide an exception to the usual limitation periods, a Lawyer will be able to advise you of this fact and advocate on your behalf.

All cases are specific to their facts and the above information should not be relied upon to determine rights in particular circumstances. Lawyers often provide no obligation free and confidential consultations to prospective clients. So it is a good idea to seek out legal advice from a Lawyer if you have any doubt or questions about your rights.