If you're a Canadian who has been injured in a car accident in the USA, you may be wondering what your options are for compensation. If the at-fault driver had insufficient insurance to cover your damages, such as medical bills, lost income and pain and suffering, you might be able to make a claim under your own insurance policy's underinsured motorist coverage (UM/UIM). However, it's crucial to understand that there are strict deadlines for filing such claims in Ontario.

Understanding the Statute of Limitations for Underinsured Motorist Claims
In Ontario, every personal injury claim, including those for underinsured motorist coverage, is governed by a statute of limitations. This sets the deadline by which you must initiate legal proceedings. Historically, determining the exact deadline for UM/UIM claims has been challenging.

While the general limitation period for personal injury claims in Ontario is two years from the date of the accident, auto insurance policies often have shorter deadlines and additional notice requirements. This can create confusion for those seeking compensation.

The Case Law:
A ClarificationThe Ontario Court of Appeal provided much-needed clarity in the case of Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88. The court affirmed that the limitation period for an underinsured motorist claim doesn't necessarily begin on the accident date.

Instead, these claims are considered a breach of contract. Therefore, the clock starts ticking the day after you make a formal demand for indemnity to your insurance company. This ruling often gives accident victims more time to assess the available insurance coverage before pursuing a claim against their own insurer.  It's important to be aware, however, that you may start clock running when a demand is made for indemnity from the UIM Insurance policy.  

Although there is an opportunity to extend the statute of limitations on an underinsured motorist Claim, it is still prudent to advance these claims in court within 2 years from the date of the accident to avoid any defense on the statute of limitations argument.  

Venue and Forum - Where Do You File Your Underinsured Motorist Claim for an Accident in the United States:
UIM claims are essentially disputes between you and your own insurance company regarding the terms of your contract. Since your insurance policy was likely issued in Ontario and your insurer is based in Ontario, the appropriate venue for the claim is an Ontario court.   In our extensive experience with cross-border accident cases, we have seen many cases where US courts have dismissed actions against the UIM carriers that are commenced in the US state court. 

Does the Ontario UIM Carrier Have a Right of Subrogation?
​Yes.  Ontario auto insurance policies have a right of subrogation if you pursue an Underinsured Motorist Claim against them.  This means, they will have your right to advance a claim against the at-fault party in the United States to be reimbursed for any money damages that pay to you in regard to an injury or losses caused by a third party that was inadequately insured.  Because of this, it is important to communicate with an experienced cross-border accident lawyer before signing any releases in the United States. 

It is also important to note that, although the UIM carrier has the right to subrogation, they do not have an indefinite ability to insist that their insured withhold a release to the at-fault party in connection with a settlement of the US policy limits.  Some Canadian insurers will state that their insured cannot accept limits in the United States and sign a release, as this is "prejudicial" to the UIM carrier and is a breach of the duty to cooperate.  This position, however, is not tenable at law. 

In the case of Somersall v. Friedman, [2002] 3 S.C.R. 109, 2002 SCC 59,  the Supreme Court of Canada pronounced, inter alia, that:

The only obligation that is clearly placed upon the insured in either of these clauses is the requirement that the insured “cooperate with the Insurer, except in a pecuniary way”, in the pursuit of the action. I am again not persuaded that this can be regarded as requiring the insured to maintain the action’s viability. In the first place, the insured is not required to cooperate until a payment has been made. Since, in this case, no payment has yet been made, the insured is not bound by this provision at all.

We often have to educate insurers and their defense counsel on the law in Canada as established by the Supreme Court.  

How We Help Canadians Injured in the United States:
Andrew Iacobelli regularly assists individuals and their attorneys with cross-border accident cases involving Canadians injured in the United States, and American citizens and residents injured in Canada.  Andrew is admitted to practice law in Ontario, Michigan, Florida and Texas and he is the author of of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way".   Andrew has offices in both Ontario and Florida.  If you are a Canadian injured in the United States, or an attorney representing a Canadian client in the United States, we can help.  Andrew regularly co-counsel's with attorneys throughout the United States to coordinate claims available to Canadians in Canada.  To learn more, call us anytime at 866-234-6093. 


Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. It's crucial to consult with a qualified legal professional regarding your specific situation.

How does an insurance company defend your allegations, your claim that you're injured, that you're in pain, that you need ongoing health care, that you are losing income, maybe, and it's all because of this accident.

Common Misunderstandings About Insurance Claims
Sometimes there's a misunderstanding where the client believes that the insurance company is paying them because they've been through some traumatic event that resulted in injuries and therefore they should be entitled to pain and suffering, money for income loss and healthcare expenses and things of that nature, maybe assistance around their home. 

Insurance Company Strategies to Deny Claims
I have had clients say, it's really obvious that I'm hurt. I'm the victim. I was doing nothing wrong. It's clearly their fault. They rear ended me. Or worse, I was a pedestrian and I got hit and I was in the right. I was in the crosswalk. I was doing everything appropriately.

And you're correct. You are correct insofar as it wasn't your fault and you were hurt. And you are hurt. But, it's not enough for the insurance company. 

They intentionally delay and deny claims with the expectation that your case will get weaker and weaker and it will be harder for you to tell your story successfully in front of a judge or a jury by the time you get to court. 

The Importance of Continuous Treatment
They're hoping by that time, it's a distant memory. You're much better now. You're not seeing doctors. It's not having a major impact on your life, at least in a visible way to a jury. And so it's incumbent upon you as the injured party, as long as your case is ongoing, but more importantly, as long as you're having symptoms to continue to treat those symptoms, continue to try to get better.

How Insurance Companies Build Their Defense
There's another important reason to follow the advice of your treatment team and create risk for the insurance company so that they're going to pay you more for your case without going to trial against you. 
Okay now, how does an insurance company defend your allegations, your claim that you're injured? How do they defeat that? Well, a couple of ways. 

One, they ask questions, take depositions, they pull calls, they test the witnesses to see how strong the case is. But the other way is in the affirmative. The insurance will come out with its own theory. So they present a different set of an alternative theory to the jury or the judge.

The Role of Doctors in Insurance Claims
Let's send you to our Doctor. Let's see what our doctor has to say about your injuries, if they're as significant as you say. The insurance companies have extremely deep pockets and resources, so they can typically locate very well credentialed, well spoken physicians to assess you. And these physicians, more often than not, no matter what your injuries are, will downplay the severity of those injuries. Because they're doing work regularly on behalf of insurance companies and they're being paid handsomely to give opinions, to support insurance companies, to reduce the risk to the insurance companies so that they can pay you less for your case. 

There's no mystery, they're paying thousands upon thousands of dollars to another doctor for only one reason. So that they can overall save money on claims. 

The Battle of Medical Opinions in Injury Claims
Let's look at that for a minute. So they get a doctor who says you're not as hurt as you say you are. And they expect to present that to a judge or a jury. 

On your end, What do you have? Well, if you haven't treated much in the last year, you may have an expert that your lawyer's hired, just like the insurance company. And so now the jury is faced with two alternative theories, both by doctors that really don't know you, that have seen lots of people simply in the context of litigation. And just as much as your lawyer wants to argue, well, that doctor's really not as reliable because he was hired by the insurance company. Well, the alternative. is going to be argued by the defense. Why should you believe the plaintiff's doctor? Their lawyer hired that doctor to give an opinion here in court. 

The real differentiation comes from the treatment team. They have nothing to do with the case. These are healthcare people that are involved with you for one reason, to try to get you better. Most of the time, they've seen you on multiple occasions over an extended period of time. They recognize you when they see you. They know your name. You're not just a file to them. You're a patient. That's another distinguishing factor that helps you overcome the insurance company's alternative story or alternative theory about your case.

The Litigation Process Explained
Another way I often explain this, litigation is like having a ticket to ride a train. 

So your ticket allows you to board the train, and the train is the civil justice system. It's what allows private individuals to bring or advance a claim if they sustained a harm or loss because of somebody else's negligence.

And now this train is headed to a final destination, which is the courthouse, more specifically the trial. Okay, that's where it ends. That's the very last stop. But along the way, it stops for discovery, documents that are exchanged. It stops for depositions, which are oral examinations where the lawyers get to ask questions of the other party. It might stop for a mediation or other settlement conference. There's motions, which are arguments in court between the parties. 

Settlement Offers and Decision Making
There are all these different stops before you get to trial. And along the way, the insurance company will be walking up and down the train, and they'll come to you, and they'll say, Why don't you get off at this stop? And we're going to buy your ticket. Can't get back on the train. You're not going to go to the final stop. And they'll offer you some money. And with the advice of your lawyer, you'll decide at that point if it's enough. And if it is, you'll get off the litigation train and you'll never see that final stop of trial.

Strengthening Your Case with Support
But very often you'll say no, because your lawyer will tell you, no, we have momentum. We have support. They are supporting doctors, and treatment providers, and family members, and co workers, and friends, and all these people that will get on the train with us. We're going to pick them up at this stop. You get some updated clinical notes and records. And so that doctor's now boarded the train with you and is seated next to you. 

And invariably the insurance company who's also riding the train sees that. And so they come around again. And this time, instead of offering you $500 for your ticket. They said we'll give you $750 for your ticket if you get off the train now.

They're paying you to get you off the train. And they'll pay you more, typically, but closer you get to the last stop. Provided, this is the big key, your case appears to be getting stronger and the risk increases to the insurance company. And so by that healthcare, family members, friends, all these people board the train with you and will come with you to trial and be there for you to help tell your story.

Why the Insurance Company Isn’t Offering More
So the reason I'm sharing this is because it comes up very often with clients that are trying to understand why is it the insurance company offering me more money? I am hurt and I've been hurt ever since. And I told them I was hurt at my deposition and I'll tell them again how hurt I am and I told them about the challenges I have every day and the pain I go to bed with and the pain I wake up with and the difficulty sleeping and all that's true and fair but the insurance company looks at that case and says well that's going to be a more difficult case to prove in front of a jury than the person that has the robust treatment team that dovetails with that story and really helps really helps to explain that story. 

Have Questions? Contact Us Today for a  Free Consultation
Ask questions to your lawyer, get advice. Find out what you could do to help maximize the value of your case. If you have any questions, we're always here for you. You can call us or you can complete our contact form and we're happy to answer your questions. I hope you found this video informative.

Andrew Iacobelli is an experienced personal injury lawyer who established Iacobelli Law Firm with offices located in Ontario, Canada and Florida, U.S.A. Andrew restricts his practice to the representation of personal injury victims in claims involving serious injuries, Catastrophic Injuries, and wrongful death in Canada and the United States.  Andrew is a lifetime member of the Million Dollar Advocates Forum, and  the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way". Andrew also hosts a popular podcast and YouTube channel on the subject of personal injury law and the rights of injury victims. ​

In Ontario, municipalities are responsible for maintaining sidewalks to ensure they are safe for public use. This responsibility includes inspecting sidewalks for potential hazards, such as cracks or uneven surfaces, which could cause pedestrians to trip and fall. The rules governing how municipalities should maintain sidewalks are set out in Ontario's Minimum Maintenance Standards (MMS). One specific area of concern under these standards is "surface discontinuities"—vertical differences in the sidewalk that create a step-like formation.

What is a Surface Discontinuity?
A surface discontinuity occurs when there is a vertical step or height difference in the sidewalk surface. This could be due to a crack, a joint in the pavement, or even a difference in height between the sidewalk and a utility cover like a manhole. According to the Minimum Maintenance Standards, a surface discontinuity of 2 centimeters or more is significant enough to require action from the municipality.

What Happens if Someone Trips and Falls?
If someone trips and falls on a sidewalk due to a surface discontinuity that is 2 centimeters or more and the municipality has not addressed the issue within the 14-day period after being informed, the municipality could be held liable for the injury. However, if the discontinuity is less than 2 centimeters, or if the municipality has followed the inspection schedule and addressed issues within the required timeframe, it may be more challenging to hold them responsible.

To put it in simple terms: Imagine you’re walking down the sidewalk and suddenly trip over a bump where one section of the sidewalk is higher than the other. If that bump is 2 centimeters or more and the city already knew about it (or should have known from their inspections) but didn’t fix it within 14 days, the city might have to pay for your injuries. However, if the bump is less than 2 centimeters, or if they hadn’t found it yet in their routine checks, it’s less likely you could successfully claim that the city is responsible.

How We Can Assist
Navigating the complexities of municipal liability, particularly when it comes to sidewalk injuries, can be challenging. At Iacobelli Law Firm, we have extensive experience in handling personal injury claims, including those related to municipal negligence. If you or a loved one has been injured due to a sidewalk defect, we are here to help you understand your rights and the legal options available to you.


To learn more aobut how we can help following a trip and fall injury, schedule a free consultation. We are Ontario-Wide and can assist with claims throughout the province. 

Andrew Iacobelli is an experienced personal injury lawyer who established Iacobelli Law Firm with offices located in Ontario, Canada and Florida, U.S.A. Andrew restricts his practice to the representation of personal injury victims in claims involving serious injuries, Catastrophic Injuries, and wrongful death in Canada and the United States.  Andrew is a lifetime member of the Million Dollar Advocates Forum, and  the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way". Andrew also hosts a popular podcast and YouTube channel on the subject of personal injury law and the rights of injury victims.