We regularly represent Canadian (Ontario residents) injured in car accidents occurring in the United States. These claims require a law firm with the ability to navigate the complex insurance coverage and liability issues that arise on both sides of the border. As a licensed lawyer in Ontario and in the United States, and with law firm practices both in Canada and in the United States, we are able to identify the issues and guide clients according to their unique circumstances. One issue that often comes up is whether the Ontario threshold and deductible are applicable in the context of a Ontario underinsured or uninsured motorist claim when the accident occurred in the United States. If you do not know what the threshold and deductible are, you can learn more about them in other blog entries. For the time being, I will only comment that these provisions of Ontario law are unfair and put the interests of insurance company profits above the rights of Ontario residents injured in motor vehicle accidents. These provisions of our law seek to reduce or extinguish meritorious claims for injuries for car accidents so that insurance companies can save money. Legislation similar to the threshold and deductible, as they exits in Ontario law, are extremely uncommon outside of Ontario. In my experience, there is no US state law that is anywhere near as discriminating to the rights of the injured as the Ontario threshold and deductible. As such, Canadians injured in the United States will enjoy some of the rights and remedies available to accident victims in the state where the crash occurred.
Many lawyers in Ontario make the assumption that the Ontario threshold and deductible apply to underinsured claims against the Ontario auto insurance policy. For some they base this on the language within the 44R endorsement, which provides that quantum of damages is to be assessed under Ontario law. That section states:
10. In determining the amount that an eligible claimant is entitled to recover from the inadequately insured motorist, issues of quantum shall be decided in accordance with the law of Ontario, and issues of liability shall be decided in accordance with the law of the place where the accident occurred.
Although the threshold and deductible certainly have an impact on the injured party's ability to recover money (damages), the position fails to recognize that at their core the threshold and deductible deal with issues of liability. In fact, they protect a certain class of defendants from liability. It is well established that the issues of liability are governed by the law where the accident occurred (lex loci delicti).
In Chomos v. Economical Mutual Insurance Co [Chomos], Cronk J.A. concluded that ss. 267.1 and 267.2 of the Insurance Act, which are the threshold and deductible provisions in Ontario, are directed to issues of “liability” and not issues of “quantum” within the meaning of s. 10 of the OPCF 44. As a result, Cronk J.A. concluded that the provisions of quantum and deductible do not govern this action.
The case of Chomos was subsequently affirmed in Kampers v. Acevedo[“Kampers”] by Garson J., who stated that “the language in Chomos is clear: accidents that take place outside of Ontario are not subject to the limiting provisions of the Insurance Act regarding threshold deductibles on pain and suffering and collateral benefits."
If you are an Ontario resident injured in the United States, we can help. Even if you already have a lawyer in the United States, we invite you to call us for advice on the Ontario aspects of your insurance claim. We regularly work with lawyers throughout the United States to ensure that cross-border accident vtictims receive full compensation on both sides of the border. To get help immediately, call us 24 hours per day 7 days per week and speak with an experienced Canada - USA cross border accident lawyer. Lawyer Andrew A. Iacobelli is the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way.
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