In this episode of Civil Banter, our hosts Hamish and Stan take a deep dive into the Ontario accident benefits system including how it works, who it applies to, and why it’s such a critical (and often overlooked) part of our insurance framework.
Hosts: Hamish Mills-McEwan and Stanford Cummings
Topic: In this episode of Civil Banter, our hosts Hamish and Stan take a deep dive into the Ontario accident benefits system including how it works, who it applies to, and why it’s such a critical (and often overlooked) part of our insurance framework.
Our hosts explain how Ontario’s no-fault system ensures access to treatment and financial help regardless of who caused the crash. Whether you're a driver, cyclist, pedestrian, or passenger, you may be entitled to benefits like income replacement, caregiver support, or non-earner compensation.
This episode focuses on the basics: how to access benefits, what each type covers, and why the accident benefits system is often more valuable than the coverage on your car itself. Along the way, Hamish and Stan highlight the importance of optional coverage and understanding your policy before the unexpected happens.
Plus, in “The Reasonable Stan,” Stanford nails the damages award in a recent malpractice case, right down to the dollar.
Have a question about your rights after a car accident? Email the podcast at civilbanter@nelliganlaw.ca or reach out to the Nelligan Law team at info@nelliganlaw.ca.
Hamish Mills-McEwan:
I am Hamish. This is Stan. And this is Civil Banter. We're civil litigators at Nelligan Law, helping people through injuries, insurance fights, and life's legal curveballs with straight talk and a bit of banter.
So welcome to episode six of Civil Banter. This episode is The Accident Benefits Bonanza, Part One. So the subject of this episode is All Accident Benefits, which is far more interesting than it sounds at first.
But first we need to get into our favorite segment, LARPing, lawyers are real people-ing. So in this segment, we'll be answering the question of how we've been filling our time outside of work, what have we been watching, what have we been listening to, what sports have we been involved in, what sports have we been following, perhaps? So Stan, let's start off, how have you been spending your time?
Stanford Cummings:
Well, this is recording before, obviously, it airs and substantially so, but-
Hamish Mills-McEwan:
You ruined the illusion.
Stanford Cummings:
... we know when it's going to air. And I'm preemptively going to say, I'm very excited for the CFL season to start, Canada's take on football. And I'm a big CFL fan, big football fan. And I encourage everybody to support Canada's game in the summer. Get out there, support the Redblacks. And I'm excited for this season to start. It will have just kicked off by the time this airs.
Hamish Mills-McEwan:
Okay. So how long have you followed the Redblacks?
Stanford Cummings:
Well, since they've been a team. They haven't been a team for all that long.
Hamish Mills-McEwan:
Okay, fair enough.
Stanford Cummings:
Previously, they were the Renegades, and before that, they were the Rough Riders, when the league had two teams called the Rough Riders. So a long time since I've been able to think independently, basically, I've loved football and I've always supported the local team when it's been around.
Hamish Mills-McEwan:
Okay, let me ask you this. I know, essentially, nothing of, either the NFL or the CFL, but how good is my general knowledge when I say Canadian Football League field is longer?
Stanford Cummings:
Yes, it is. It's 10 yards longer.
Hamish Mills-McEwan:
And there are fewer downs?
Stanford Cummings:
There are fewer downs. You only have three downs in the CFL as opposed to four.
Hamish Mills-McEwan:
Any other big pub quiz factoids that I should know?
Stanford Cummings:
Everybody likes to say our balls are bigger, and it's true, they are, they are. There's a factual statement.
Hamish Mills-McEwan:
Okay.
Stanford Cummings:
Yeah. The end zones are bigger. Yeah, there's a few key differences. I won't get into the minutia of the differences, but I think, you know what? It's a really entertaining game. It moves a lot faster than the NFL does, especially vis-a-vis commercial breaks and things like that. So if you have a short attention span, as I think we all are increasingly getting shorter attention spans, the CFL moves a lot quicker. So there's only 20 seconds between plays, and in the NFL, it's 40 seconds between plays. And there's more TV timeouts and the clock stops more often in the NFL than it does in the CFL.
Hamish Mills-McEwan:
Is part of that just to do with it being less commercial?
Stanford Cummings:
Possibly. I don't know. It's always been a shorter play clock that I've been aware of, and same with the NFL. So I like it, it moves a lot quicker.
Hamish Mills-McEwan:
And it's accessible, right? Like Redblacks tickets are really not that expensive at all.
Stanford Cummings:
That's right. And you know what? They have a really great atmosphere there where you can walk around. I mean, a lot of the people there aren't, frankly, even watching the game, it seems like, but they're having a good time, they're socializing. Ottawa, in the summer, right by the canal, it's a beautiful place to see a game. There will eventually be a new Northside stands, I know that hasn't quite been worked out yet, but I like it. It's an interesting stadium.
Hamish Mills-McEwan:
I have been, I've just managed to pick up very little of the substance of how the game works, but the last time I went, I think it was literally Halloween and it was really, really, really, really cold.
Stanford Cummings:
That's the thing, right? So in June, July, August, September, it's great. If it's not raining, it's great. Even if it is raining, as long as it's not too cold or too windy, it's a pretty good time. You get into that fall, you got to be a dedicated fan. You know what I say? You got to dress for it. If you dress for it, you'll have a good time. If you're thinking you'll get away with a jean jacket and no gloves or toque, then you're going to be there for a rough ride.
So Hamish, what are you up to? What you thinking about these days?
Hamish Mills-McEwan:
So I have a double feature.
Stanford Cummings:
Okay.
Hamish Mills-McEwan:
I have a pairing.
Stanford Cummings:
A pairing?
Hamish Mills-McEwan:
Like wine and cheese.
Stanford Cummings:
Yeah.
Hamish Mills-McEwan:
I'm pairing the biopic, A Complete Unknown, starring Timothy Chalamet about Bob Dylan.
Stanford Cummings:
Okay, right on.
Hamish Mills-McEwan:
That would be the wine. And then, the cheese would be Ken Burns' Vietnam.
Stanford Cummings:
A little substantial learning to go along with your fun Hollywood blockbuster.
Hamish Mills-McEwan:
Yeah, so the biopic, the Bob Dylan movie, it's really, really good. I thought it was really well done. It's by, I believe, the same director that directed Walk the Line, which was the Johnny Cash biopic from mid-2000s. And Timothy Chalamet does all the singing, all the guitar. He really sort of captured... It's not a direct imitation.
Stanford Cummings:
Right. A little bit of a more artistic impression.
Hamish Mills-McEwan:
Yes. Yeah. But it's really good, really enjoyable. And just because of the time period in which it takes place, as soon as I watched it, I just couldn't get the Vietnam War out of my head.
Stanford Cummings:
It comes with the territory, you get those kind of protest song vibes.
Hamish Mills-McEwan:
Right.
Stanford Cummings:
I could see it. Yeah.
Hamish Mills-McEwan:
Right. So then I jumped into, which I've already seen before, but it's excellent, Ken Burns has, I think a 15-part, each episode's like an hour, an hour and a half, documentary on the Vietnam War, which is just incredibly well done.
Stanford Cummings:
Anything Ken Burns does is fantastic. I feel like I haven't seen his stuff in a little while, but so, so good.
Hamish Mills-McEwan:
Yeah.
Stanford Cummings:
So detailed, right? You're saying 15 parts and they're all long and they're all very detailed, incredibly shot.
Hamish Mills-McEwan:
Mm-hmm.
Stanford Cummings:
Excellent stuff.
Hamish Mills-McEwan:
Good music too, right?
Stanford Cummings:
Well, soundtrack must be phenomenal.
Hamish Mills-McEwan:
Yeah.
Stanford Cummings:
The last one I watched was a thing about the Roosevelt's, Teddy Roosevelt and FDR, and so the music wasn't really the key factor on that particular documentary. He has one on the Civil War in the West and the Second World War, but nothing as good, I wager, as the Vietnam War's playlist.
Hamish Mills-McEwan:
Yeah. And I think the first episode, it starts in like 1850. So it's a very comprehensive history of Vietnam. I'm not that knowledgeable about the Vietnam War, but it seems like it tells the story from all sides really well. There's lots of interviews with Viet Cong, North Vietnamese army soldiers, and people involved in the politics at the time, and then just everyday families. It's a really comprehensive, well-rounded documentary that really gives you the impression of both the social situation within the states, the social and political situation in Vietnam, and then the military situation too. So well worth the watch.
Stanford Cummings:
I'll put it on the list. I got to check it out. You know us, we're all history buffs on this podcast.
Hamish Mills-McEwan:
And then, moving on from that, we're going to go straight into everyone's favorite segment, this is The Reasonable Stan. We're mixing things up a little bit this time in that instead of going on CanLII, the legal research database, I went on www.ccla-abcc.ca. Now, this-
Stanford Cummings:
Well, for our listeners, what is that?
Hamish Mills-McEwan:
That is the County of Carlton Law Association's website. So this is the local law association here in Ottawa. It's an amazing resource. They rent the library at the courthouse. They have a website with loads of helpful information for lawyers and self-represented parties alike.
Stanford Cummings:
And what is it that you found on the website that is going to be used in this segment?
Hamish Mills-McEwan:
Well, I clicked on Civil Litigation on the homepage and then... Well, it's Practice Portals, Civil Litigation, and then the Compendium of Damages Awarded in Personal Injury Actions Across Ontario, January 1999 through October 2024.
Stanford Cummings:
It's a really excellent database of damages quantums that we use frequently in our line of work to decide or to advocate for our clients about how much their claim may be worth.
Hamish Mills-McEwan:
Yeah. And it's just a brilliant resource that a subcommittee of-
Stanford Cummings:
Volunteers, I don't think they're paid to do this.
Hamish Mills-McEwan:
No, they're all local lawyers, volunteers, part of the Law Association who dedicate their time to combing through East Region cases. And-
Stanford Cummings:
And beyond.
Hamish Mills-McEwan:
And beyond. And there's one for just cost awards too, and then there's one for personal injury damages. And it's just case by case, a brief summary of the facts, the damages, whether or not it was appealed, and going through the different heads of damages. And it just simplifies everything, puts everything in one place, compendium. So-
Stanford Cummings:
Big shout out there.
Hamish Mills-McEwan:
Yeah, incredibly helpful resource. So I clicked on the first 2024 case I could find with a female plaintiff.
Stanford Cummings:
All right.
Hamish Mills-McEwan:
So the setup of the game, as you all know, is I read select facts from the case. Stan gets to ask me a couple of questions. And then, he attempts to assess general damages for pain and suffering. And we compare how close Stan's number is to the amount actually awarded at trial. Now, the first time we played this, Stan was a bit far off.
Stanford Cummings:
I was way off, I'll admit it. Not even close.
Hamish Mills-McEwan:
He was $45,000 off. The second time we played this, you really moved a lot.
Stanford Cummings:
I got out of damages mania, I focused. I was back in the saddle on that one.
Hamish Mills-McEwan:
$5,000 off. And then, the last time we played, you were $2,500 off. So-
Stanford Cummings:
I feel like that's a high bar now and I don't think I'm going to be able to be any closer than that, but we'll see.
Hamish Mills-McEwan:
I am almost expecting a bullseye on this and if it's anything less than, I'm going to feel a bit let down. So-
Stanford Cummings:
Time will tell.
Hamish Mills-McEwan:
So the case is Kotorashvili and Lee, 2024 ONSC 1495. So this is an interesting case of a plaintiff who moved to Canada at age 11. She's just a couple of years younger than me, and when she was about 20, 23, she got into mixed martial arts. She's training five days a week, very involved in it. She has a son, to the extent that matters, he was 2.5, two and a half years old.
Stanford Cummings:
2.5 years old.
Hamish Mills-McEwan:
2.5. To you point, two and a half years old.
Stanford Cummings:
Do we do it, actually like if he was two years and 11, would it be 2.11.
Hamish Mills-McEwan:
.95. Or if he was 11 months old, .95.
Stanford Cummings:
No, it wouldn't be because it would be .11. Anyway, just a strange way to say it. I like it.
Hamish Mills-McEwan:
So August 2016, during an MMA class, she suffers a severe fracture to her right clavicle. So collarbone gets fractured.
Stanford Cummings:
Ouch.
Hamish Mills-McEwan:
This is a medical malpractice case, which we haven't touched on before, so the basis of the case is she has a surgery to repair the fractured clavicle because it's completely displaced and they're worried that it's just not going to heal. Because a lot of the time, especially young-
Stanford Cummings:
Especially non-displaced fractures, for sure.
Hamish Mills-McEwan:
And collarbones is one of the ones, this is just anecdotal, obviously, we're not doctors here, but from my understanding, a lot of the time, people just get their arm in a sling and it's not really a surgical option.
Stanford Cummings:
I seem to recall a lot of NFL quarterbacks have had this type of injury before, and some of them have played through. Not a displaced one, but would have been able to play through a broken clavicle at times. But the fact that it's displaced, which, correct me if I'm wrong, but it means that it's completely broken, so there's nothing attaching the two sides of the fracture.
Hamish Mills-McEwan:
Yeah.
Stanford Cummings:
And so, it would had to, in this case, I imagine, been repaired with hardware, which means nails and other sort of binding agents, screws, what have you.
Hamish Mills-McEwan:
It's-
Stanford Cummings:
Usually, they're screws now, I think. But we're getting into the weeds.
Hamish Mills-McEwan:
I can't read these cases and just not think, this just sounds a lot like [inaudible 00:14:01]. It's obviously more sophisticated than a trip to Home Depot, but when you're reading about the screws and the plates involved, it sounds like a parts bin at Home Depot. So she has a plate and screws fixed.
But as you know, this does happen from time to time, as the fracture heals, she can feel the hardware that's been inserted because it's close to the skin and it causes hypersensitivity around the collarbone and she can feel it and it's really bothering her.
Stanford Cummings:
It's tough.
Hamish Mills-McEwan:
Now, it's mostly phrased around discomfort and hypersensitivity. In this case, she complains about it and the doctor recommends going in and removing the hardware. And the time between the first surgery when she gets the hardware put in and the second surgery when she has it removed is less than a year, it's about 10 months. So she has the hardware removed, and not long after it's removed, like within weeks of it being removed, refractures the clavicle again.
Stanford Cummings:
Well, you know what? Let's just park, but don't worry about it. Yeah. Okay, so it breaks again.
Hamish Mills-McEwan:
Breaks again. And not doing anything in particular, or at least is not reporting the cases of her doing anything in particular.
Stanford Cummings:
I think we're accepting that there was a finding the doctor was negligent in this case.
Hamish Mills-McEwan:
There was a finding of negligence.
Stanford Cummings:
I don't need to worry about causation when assessing these damages.
Hamish Mills-McEwan:
You don't need to worry about causation, well, I mean, you don't have to worry about that, but it is referenced in the case that it's not clear what her level of function would have been had she just fractured it originally. So it's like a background fact. But she is awarded damages for pain and suffering, and it's phrased in terms of hypersensitivity. Well, she's had multiple surgeries because she had the surgery and then she had it repaired. And the whole issue is, did you take out the hardware too early? If there wasn't complete bony union at the time-
Stanford Cummings:
She would have needed it removed in any event though, right?
Hamish Mills-McEwan:
Yes, but-
Stanford Cummings:
So we're not dealing with a surgery that was required because of negligence, it would have had to happen anyway?
Hamish Mills-McEwan:
Yes, it's all about the refracture.
Stanford Cummings:
Are there any surgeries other than the first two, the one to repair it initially and then the removal of the hardware?
Hamish Mills-McEwan:
Yes.
Stanford Cummings:
Okay.
Hamish Mills-McEwan:
There's a final surgery.
Stanford Cummings:
A third surgery.
Hamish Mills-McEwan:
A third surgery. And the third surgery is once the hardware is removed, it heals from the second fracture and it heals in a disjointed way so there's a bump in her clavicle, like a visible bump. And she then gets that addressed. She gets the bump essentially shaved down.
Stanford Cummings:
In a fourth surgery, or that's the third surgery?
Hamish Mills-McEwan:
That's the third surgery because it's fracture, remove hardware, collarbone then heals with a bump, and then that gets fixed in a final surgery with a different doctor.
Stanford Cummings:
I imagine at that point.
Hamish Mills-McEwan:
So yeah, there were two, no, there was one surgery that [inaudible 00:17:35]-
Stanford Cummings:
That's required because of the negligence. The other two would not be compensable because they were going to have to happen anyway.
Hamish Mills-McEwan:
Exactly. And this case, it reads a lot like a primarily medical malpractice liability case, but there is a general damage award. She's complaining about weakness, inability to lift laundry baskets, and then discomfort. And then-
Stanford Cummings:
I take it the end of the MMA career, or not career, but as a social and recreational activity, does not return to that?
Hamish Mills-McEwan:
She does return to that.
Stanford Cummings:
Oh, okay, but she couldn't carry a laundry basket? Okay.
Hamish Mills-McEwan:
Good question. Well, it's discomfort when carrying laundry basket.
Stanford Cummings:
Okay.
Hamish Mills-McEwan:
The case goes to great pains to define everything primarily in terms of discomfort, but at the end of the day, she has had a surgery.
Stanford Cummings:
The surgery sucks and that should be compensable and I'm sure it was.
Hamish Mills-McEwan:
Right. And also, just recovering from the surgery too.
Stanford Cummings:
Yeah.
Hamish Mills-McEwan:
And-
Stanford Cummings:
But we're dealing with discomfort. There's no sign in there of like a functional impairment, things that she's unable to do as a result of the third surgery.
Hamish Mills-McEwan:
It really just gets talked about in the context of basically a laundry basket and weakness.
Stanford Cummings:
Yeah, I'm not blown away by that in terms of high-end damages. It sounds unpleasant, for sure, compensable, for sure, but I'm not hearing anything about a functional impairment, things she can't do. It doesn't sound like there's a mention of a career here that would have been impacted or any childcare shortcomings as a result of the injury or other.
Hamish Mills-McEwan:
Not that's apparent from the case.
Stanford Cummings:
Okay.
Hamish Mills-McEwan:
What I could do is I could give you the range of general damages that the plaintiff sought.
Stanford Cummings:
I mean, that's helpful. I'll take any.
Hamish Mills-McEwan:
I think it's fair in this case. So the plaintiff seeks general damages in the range of 25,000 to 100,000.
Stanford Cummings:
Well, you could land a plane on that gap. I'm thinking it's closer to the $25,000 mark than it is the higher end of things. Although a surgery is unpleasant and there's always risks associated with undergoing surgery, especially one that you otherwise would not have had to undergo, stresses associated with that, I'm going to say 35.
Hamish Mills-McEwan:
You did it.
Stanford Cummings:
What?
Hamish Mills-McEwan:
You did it.
Stanford Cummings:
No way.
Hamish Mills-McEwan:
Yeah, $35,000.
Stanford Cummings:
Oh, boy. Right on.
Hamish Mills-McEwan:
So wow. So you've chipped away.
Stanford Cummings:
That's fantastic.
Hamish Mills-McEwan:
You've chipped away episode by episode and-
Stanford Cummings:
There's nowhere to go but down now though, so that's tough. Well, next episode, we're going to flip the script and I'm going to be the one proposing a scenario to you. So look forward to that, folks.
Hamish Mills-McEwan:
Yeah, maybe we have to retire The Reasonable Stan for a bit.
Stanford Cummings:
We'll have to see what the viewers and listeners want.
Hamish Mills-McEwan:
Die a hero or live long enough to become a villain.
Stanford Cummings:
Oh, I like it.
Hamish Mills-McEwan:
Okay, so let's move on to Accident Benefits Bonanza, Part One. So-
Stanford Cummings:
I love the title of this episode.
Hamish Mills-McEwan:
Pretty happy with it.
Stanford Cummings:
Yeah.
Hamish Mills-McEwan:
So why don't you kick it off by fielding some questions, and I'll see what I can do.
Stanford Cummings:
How about I start with, I think, what is the obvious question, what are accident benefits?
Hamish Mills-McEwan:
So accident benefits are when you're involved in a few different capacities in a car accident, you can claim medical, income, and a whole host of other benefits.
Stanford Cummings:
There really is a long list of them.
Hamish Mills-McEwan:
There's a long list from, often, your insurance company, but even if it's not your insurance company, a automobile insurance policy.
And they're on a no-fault basis, which is really key here. So what that means is, and we'll go into some examples later, but no-fault basis means if I am steaming along on the highway and I have a attention lapse, all the traffic slows down in front of me and I plow into the back of your car, it was my bad, I can still claim accident benefits.
So if my neck is tweaked or if I had a concussion or if I'm hypervigilant driving afterwards and then having a really hard time getting back in the car or if I had to take time off work, I can claim those accident benefits regardless of the fact that I was arguably, probably, definitely responsible for the crash.
Stanford Cummings:
Yeah, I think that, really, it's an industry term for benefits that are available to people who've been involved in an accident resulting from the use or operation of a motor vehicle.
Hamish Mills-McEwan:
Mm-hmm.
Stanford Cummings:
So anybody who's been hurt in a car accident, and it's a little bit broader than that, but for all intents and purposes, let's just say car accidents that have caused injuries, you can seek these accident benefits.
Hamish Mills-McEwan:
Right. And it's an Ontario-specific thing, I'm sure, but I'm just ignorant of that being similar schemes in different provinces, probably different states too, different jurisdictions, but the-
Stanford Cummings:
Yeah, we're going to restrict this to the Ontario scheme.
Hamish Mills-McEwan:
Mm-hmm. And it does matter. And essentially, the idea is, it's kind of is, it's a social safety net to make sure that, realistically, driving a car day-to-day is the most dangerous thing ordinary people do.
Stanford Cummings:
Or can be around if you're not even a driver, ask a pedestrian who's been hit by a car.
Hamish Mills-McEwan:
Yeah, exactly. And it's a thing that hundreds of thousands, millions-
Stanford Cummings:
Everybody in the province interacts with a motor vehicle.
Hamish Mills-McEwan:
In some capacity-
Stanford Cummings:
Whether you have a license and drive one or whether you cross a street as a pedestrian or you get driven to the airport or what have you. Everybody interacts with motor vehicles.
Hamish Mills-McEwan:
So it would just be pandemonium if we didn't have some guarantee that there was insurance coverage when this whole-
Stanford Cummings:
Absolutely.
Hamish Mills-McEwan:
... setup inevitably goes wrong. And generally speaking, the amount of coverage you have in Ontario, I'm sure people have bones to pick about the specifics, but generally, it's pretty good. There are a couple of different levels of benefits we'll get into, but if you are hurt and you're injured and you cannot work, there is this social safety net.
Stanford Cummings:
There's help available to you.
Hamish Mills-McEwan:
There's help available. And it's about making sure to alert the right people and there is a system in place.
Stanford Cummings:
And generally speaking, like we said, anybody who's been involved in a car accident or a bus accident or ATV, motor vehicle accident, can apply for these.
There are certain cases where you are not eligible for certain benefits, I won't get too far into that, but if you don't have insurance, but you were the driver of the car, or if you were operating a vehicle and you knew you didn't have the consent of the owner, or if you are an excluded driver under a policy of insurance, or if you've been convicted of impaired driving as a result of the accident, certain benefits will not be available to you, but you can still get medical benefits.
So even if you've done some of those things that would exclude you from income replacement coverage, you'll still be able to get medical coverage.
Hamish Mills-McEwan:
Right. And I guess the general, broadly, when can you apply for accident benefits? In some of the unconventional situations, even if you're a pedestrian and you don't own a car, no one you live with owns a car, you don't drive a car for work and you're a pedestrian crossing the street and you get hit by a car, you can apply for accident benefits. You are covered under a policy, even if you don't have your own policy.
Stanford Cummings:
That's right, you would be covered by the policy of the vehicle that hit you. And if that person's uninsured, you can make a claim to the Motor Vehicle Accidents Fund.
Hamish Mills-McEwan:
Right. And that's a further, further safety net, it really is. Even if there's no insurance policy that appears to respond, if it's involving a motor vehicle, you can apply through the provincial Motor Vehicle Accident Claims Fund.
Stanford Cummings:
Which gets back to the whole social safety net principle. And another reason to have these is that, traditionally, if you were involved in an accident, you would go after the at-fault driver. We've addressed these are no-fault benefits. But let's say you're not at fault anyway, you're going after the at-fault party for damages, lawsuits take a really long time, especially now, and they're getting longer. So these benefits are available much quicker than a tort settlement, which would be cash that you could use on things like treatment. This is funding for treatment on an interim basis.
Hamish Mills-McEwan:
Mm-hmm. And one of the misconceptions or the questions we get asked is it's not benefits in the same way that some benefits necessarily pay cash straight to you.
Stanford Cummings:
That's right.
Hamish Mills-McEwan:
It can be for income-
Stanford Cummings:
It can be.
Hamish Mills-McEwan:
... but how does it work in a medical situation?
Stanford Cummings:
I kind of think about it as anybody who's lucky enough to have a workplace benefits plan where you can get coverage for things like massage therapy or psychological therapy, regardless of whether you were involved in a workplace incident, they're just available to you because you have a workplace plan.
This operates in a very similar way, except, instead of a workplace, it's a motor vehicle involved. So if you've been involved in this motor vehicle setting, you can access things like physiotherapy or chiropractic therapy, massage therapy, occupational therapy. We're going to get to these in our next episode, part two, but those are the ways that I think a lot of people should think about this.
Another thing that people should think about is if you are the policy holder, so you've been paying your premiums, you own an insurance policy attached to a vehicle, this is something that your payments have covered, it's part of your policy, it's a coverage that is something you're contractually obligated to receive if you qualify for them.
Hamish Mills-McEwan:
And it's also one of those things where I think a lot of people don't even know that this scheme exists because when I'm shopping around for car insurance, primarily, I'm thinking in my head, even despite doing this work, I'm thinking about if someone crashes into my car, who will pay me for the damage to my car? And I think that's what most people are thinking about when they're thinking about car insurance. Yeah.
Stanford Cummings:
99% of people are thinking what we call property damage to the vehicle, is my car going to be repaired and how much does my policy cost to do that?
Hamish Mills-McEwan:
Yeah. And we do property damage claims, but the bulk of what we do and where there's often most at stake and where it's more complicated is when it comes to the medical side. Because unlike a property damage claim where it often just comes down to-
Stanford Cummings:
Well, what's the car worth, if it's a write-off, or is this quote to repair the vehicle too high or too low?
Hamish Mills-McEwan:
Yeah. So there are technical, complicated situations, but generally speaking, it's kind of just navigating between those two topics and it gets resolved. It can get resolved pretty quickly.
But when it comes to what injuries or impairments did someone have as a result of this accident, what was their situation before? Why aren't they working now? Does that entitle them to income replacement benefits? Were they providing care to someone that they're no longer able to do? Does the house need modifying? These are all things that are significantly more complicated. There's more at stake and it can have a bigger impact on someone's life than the financial value of whether their car is worth X dollars or Y dollars.
Stanford Cummings:
That's right. And when people are thinking about car insurance, I strongly encourage them to seek the assistance of a broker when they're doing that because they will be the ones who are qualified and licensed to provide you with the advice about the kind of coverage that you need given your situation in life.
And we're not going to stray into telling people what they should or shouldn't have in terms of insurance coverage. They should know that there are these coverages available and that they should really consult with an expert in terms of selecting the appropriate policy.
Hamish Mills-McEwan:
Right. And we'll go into that next episode in terms of some of the changes that are coming down the pipe. But just quickly following on from the pedestrian, other situations where you can have access to accident benefits are you're a cyclist, you're hit by a car. If you don't have your own car and you're not covered by your own policy, you need to get the driver's insurance details because you can make a claim on their policy. If you rear-end someone or if you T-bone someone-
Stanford Cummings:
Or you drive into a tree.
Hamish Mills-McEwan:
Yeah, exactly. If there's no other car involved and if you drive off a road in a situation, you can still get access to accident benefits.
And then, of course, if someone rear-ends you, if someone T-bones you while you're driving and someone else is at fault, you can still just as much claim on accident benefits, it's just you potentially also have a claim in the civil court, a lawsuit in addition to your accident benefits claim.
Stanford Cummings:
And if you are going to pursue a claim against somebody who's caused this to happen to you, you have to apply for accident benefits.
Hamish Mills-McEwan:
Right. Yeah.
Stanford Cummings:
You're obligated to.
Hamish Mills-McEwan:
It's mandatory.
Stanford Cummings:
You have to. And that's in the legislation. It's also to reduce the exposure of the tort defendant as well.
Hamish Mills-McEwan:
And then, getting into, specifically, what to do. I mean, if you have a car or you know you're insured under a policy, that's who you would report it to.
And sometimes there are disputes between insurance companies, which policy responds first? At the end of the day, you report it to an insurer, generally, your insurer, if you have one-
Stanford Cummings:
If you have your own insurance policy, they will always be the one to respond.
Hamish Mills-McEwan:
Right. And then, if there are issues in the background, the insurers will figure it out and you will get accident benefits one way or another. But often, you can potentially be insured under your roommate's policy if you're a university student, you don't have a car. But potentially, there's coverage under your roommate's policy or your spouse's policy, your girlfriend's policy, your boyfriend's policy.
Stanford Cummings:
If you're on the bus and it gets rear-ended and you don't have any of your own policy, you can go through the city that you're in, they'll have coverage attached to their fleet of buses.
Hamish Mills-McEwan:
If you're a passenger in an Uber.
Stanford Cummings:
That's right.
Hamish Mills-McEwan:
If you live with your parents and you're an occasional driver on their policy, you might not necessarily even know it, it might not have been a conversation you've had with your parents, but you could be covered under their policy.
Stanford Cummings:
If you don't know, reach out.
Hamish Mills-McEwan:
Mm-hmm. And as I said, the system, it's supposed to be a safety net, so there's ways to find coverage. And at the end of the day, you always have the Motor Vehicle Accident Claims Fund.
Stanford Cummings:
Well, we've talked a little bit about it, you've mentioned that you can recover things like income, lost income, there's other benefits as well that we'll get into, mostly in the next episode, but I want to have a discussion here about what we call specified benefits. Those would be income replacement benefits, non-earner benefits and caregiver benefits. And these are the three sort of cash... These are the ones where, instead of getting your funding for treatment, they'll give you a check.
Hamish Mills-McEwan:
Mm-hmm. And-
Stanford Cummings:
Let's start with the income replacement benefit.
Hamish Mills-McEwan:
Yeah. So we'll be talking mostly about the mandatory. And again, there's going to be changes to this, but you can always elect, you can pay for elevated tiers of benefits, but generally, we're going to be talking about just the mandatory baseline that everyone has access to.
Stanford Cummings:
The minimum coverage that-
Hamish Mills-McEwan:
The minimum coverage. So income replacement benefit is, I was involved in a car accident, I cannot work. So the maximum benefit you can get as the baseline is $400 per week.
Stanford Cummings:
It's really not that much money at the end of the day, is it?
Hamish Mills-McEwan:
Not that much money. You can, in principle, get it for a lifetime. So this isn't one where there's a hard cap in terms of the timeline, but there is a timeline element in terms of the test that you have to meet to qualify for income replacement benefit.
Stanford Cummings:
So what are those tests?
Hamish Mills-McEwan:
So within the first two years, the test is whether your impairment substantially or you suffer a substantial inability to perform the essential tasks of your employment.
Stanford Cummings:
All right, so accident happens, you're injured because of that accident, you're not able to work and you've made an application, you've notified your insurance company that you've been involved in this accident and you've submitted the requisite paperwork to say, "I'm not working, I need some financial assistance by way of an income replacement benefit."
What the insurer will do is they'll look at your injuries, you'll provide them with some medical information about what has happened to you, and probably, a description of what your job happens to be, although if the injuries are severe enough, I don't think they really pry too hard. And so long as you suffer this substantial inability to perform the essential tasks of your employment, the insurer will cut you a $400 check per week that is there to make up for the fact that you can't work.
Hamish Mills-McEwan:
Right. And the language is a bit technical and it's defined in the case law, but put simply, this is, can you do your job? The job you were doing, can you do it?
Stanford Cummings:
That's right, your job.
Hamish Mills-McEwan:
And often, the insurance company can assess you, and we'll get into assessments later in a different episode, but generally speaking, it's about, can you do your job? What's essential to that job? They'll want details about your job, maybe a job description, and they'll be comparing the essential tasks of your job with the impairments that you suffered as a result of this accident. After two years, the test gets significantly harder and the test is whether you suffer a complete inability to engage in the essential tasks of any employment for which you are-
Stanford Cummings:
For which you are...
Hamish Mills-McEwan:
... reasonably suited by-
Stanford Cummings:
Education, training and experience.
Hamish Mills-McEwan:
You got it. So put simply, again, within two years, can you do your job? After two years, can you do any job?
Stanford Cummings:
Within your training.
Hamish Mills-McEwan:
Yeah.
Stanford Cummings:
And there's differences there. So if you're working as a brain surgeon and you are not able to do that job anymore, they can't say, "Well, you could be a parking attendant." It's just not comparable.
Hamish Mills-McEwan:
Right. So they do look to a relative comparison. There are some jobs, it's like, yeah, you could do that, but if you just don't have any of the educational background to do that job, they can't really be like, "Oh, why aren't you an X-ray technician?" It's like, "Well, I don't have any of the qualifications."
Stanford Cummings:
Right. "I was working as a roadworks construction worker, I don't have any of that training."
Hamish Mills-McEwan:
Right.
Stanford Cummings:
So they can't make you do that.
Hamish Mills-McEwan:
So it's a bit more nuanced than just can you do any job, but it's, obviously, a lot harder of a test to meet than can you do the job you were previously doing. But if you meet that test, you can keep getting the $400 a week into the future.
Stanford Cummings:
For life, really. As you said, there is a change after you turn 65, there's a bit of a formula that's used to calculate your benefit, but so long as you do suffer that complete inability, you will remain eligible to receive this income replacement benefit. Like we said, it's not a lot and there are ways that you can increase that by buying optional coverage, but it's there for anybody and everybody who was working at the time of the accident or shortly before. You don't necessarily have to be working at that exact time, but if you were working in the year before the accident, you can still claim an income replacement benefit.
Hamish Mills-McEwan:
And then, a non-earner benefit. This is you're retired, you're a student and you're not working, or you're just unemployed. And this is significantly more limited. So financially, it's $185 per week.
Stanford Cummings:
It is. And it's only for a maximum of two years as well. So this one is not like the income replacement benefit, it doesn't go on forever, it used to, it no longer does due to legislative changes. But what's the test on this one?
Hamish Mills-McEwan:
A complete inability to carry on normal life.
Stanford Cummings:
Wow, that's a doozy of a test.
Hamish Mills-McEwan:
Yeah. So generally speaking, this is only going to apply... And this benefit category, it kind of used to be a bit more generous, it used to persist longer, but now, it's just a hard cutoff two years and you have to be really seriously impaired such that your life is fundamentally changed and you can't continue doing the things you used to do, whatever they were.
Stanford Cummings:
That's right. And I always enjoyed working on these types of files. They could become very complex arguments, really, about what was the person's life before the accident? How has it been impacted? And they were quite a lot of fun to work on.
Because of the limitation to a two-year window, we see far fewer of these going to the dispute stage and more of them are either paid out for two years. I mean, it's not a huge amount of money at $185 a week for 104 weeks or they're abandoned because the cost of pursuing them is not worth the reward, so to say, at the end of the day, if you are found to be entitled.
That may change if there's legislative changes to the cost regime at the tribunal, but for now, we really don't see a lot of these non-earner benefits any longer.
Hamish Mills-McEwan:
Mm-hmm. And then, caregiver benefits. So there's a big caveat which we're going to get... Will we get into catastrophic next episode or-
Stanford Cummings:
Possibly. I think it should be its own episode. We'll definitely hint or touch on it a little bit in part two of the bonanza, but for now, we'll just sort of mention that it's a level of impairment.
Hamish Mills-McEwan:
Right. And so, if you meet catastrophic impairment, which is as it sounds-
Stanford Cummings:
Really bad.
Hamish Mills-McEwan:
... the worst type of impairment, then you can claim caregiver benefits. So this is if you are providing caregiving services, and that's a very formal way of saying it, but it basically means you're looking after your children or a spouse or parents or-
Stanford Cummings:
Whoever.
Hamish Mills-McEwan:
Yeah.
Stanford Cummings:
If you're looking after somebody as, essentially, your job or with the majority of your time, then you would qualify for this, so long as you're also catastrophically impaired.
Hamish Mills-McEwan:
Right. And it's $250 per week for the first person within your care, essentially, and then $50 for every other person. And this is one where, to be honest, I just haven't worked on too many cases where it's a factor, but just reading out loud now, I'm just thinking how kind of unforgiving this seems in terms of the recognition of how many Ontarians are caregivers and how exclusive a class of people can get this caregiver benefit.
Stanford Cummings:
It's a really small window given that you need the catastrophic finding.
Hamish Mills-McEwan:
Mm-hmm. Mm-hmm.
Stanford Cummings:
Yeah. What we see most often is those who are catastrophically impaired are also probably working or had been working at the time, and so because that's $400 a week and the caregivers only $250 a week, you would elect to go with the income replacement benefit coverage, unless you were caregiving for enough people that it bumped it over the $400.
Hamish Mills-McEwan:
Mm-hmm. And the thing to remember in everything we're saying, this scheme, the accident benefit scheme, everything we've just described, it is related, but it doesn't mean that there is no civil lawsuit at the courthouse that you can pursue for other losses, you can, it's just-
Stanford Cummings:
That's right.
Hamish Mills-McEwan:
... that's why we start talking about fault, liability, causation.
Stanford Cummings:
Yeah. We just want to stress that these are available because honestly, people I talk to, friends or family, and I explain what I do with my job, most of them are like, "Accident ben... That what are those? I don't really get it. I don't understand it." And they can be really substantial. They can also be very important for making sure that you're able to recover in a timely manner. I can't stress to people enough to consult the appropriate professional about making sure you're adequately covered with this.
Hamish Mills-McEwan:
Mm-hmm. Yeah, important stuff. So with that, we're going to wrap up part one of The Accident Benefits Bonanza and we're going to move on to shout-outs. So in this section, we can shout-out a person, thing, a news tidbit or event. And we spoke earlier and we're going to mutually decide to shout out the CCLA Awards gala. So I mentioned them earlier in the show, this is the County of Carlton Law Association. Every June, they hold an awards gala, it's June 12th, 2025. And it's about celebrating excellence within the Ottawa legal community.
Stanford Cummings:
That's right. There's some awards that go out to excellent counsel who've worked a long time and have reached the pinnacle of their careers and should be lauded for that. Usually, some excellent speeches from those people and from the people who are introducing the award winner. I'm always blown away by the accomplishments of some of these careers and the advocacy skills of the people who present them as well.
Hamish Mills-McEwan:
Yeah, the speeches are always great. And it's always just a good event to go to to feel pretty humbled, your own accomplishments, and think when you see some of these legends of the community and what they've achieved. And it's great to see people getting recognized. And that's held at The Rogers Centre, which I only just learned it was called The Rogers Centre, in my mind it's The Shaw Centre.
Stanford Cummings:
I still think of the baseball stadium, right, because it's also called the Rogers Centre in Toronto. And so-
Hamish Mills-McEwan:
Yeah, [inaudible 00:45:12].
Stanford Cummings:
... they should have come up with a different name for it. "I'll meet you at the Roger Centre," four hours away.
Hamish Mills-McEwan:
So it's going to be there on June 12th. And we'll be going. And we hope our listeners who are part of the CCLA will also attend.
And with that, we'll say our goodbyes. Where can you find our team, Stan?
Stanford Cummings:
You can find us at nelliganlaw.ca. You can also find Civil Banter by email at civilbanter@nelliganlaw.ca. So write in if you have any questions, corrections, things like that. If you want anything in particular addressed on the podcast, we're open to suggestions and criticisms as well.
Hamish Mills-McEwan:
Constructive criticism only, please.
And Stan, I hear you've recently updated your LinkedIn handle.
Stanford Cummings:
Yeah, I thought I had done this before, but I guess not, and you pointed that out. So we tested it earlier today and I have in fact rectified the LinkedIn link, it's now linkedin.com/in/stanfordcummings. And that's where you can find me.
Hamish Mills-McEwan:
And I'm on LinkedIn at linkedin.com/in/hmillsmcewan. And I've been posting, lately, on the hotly contested changes to the civil litigation rules of practice, which I'm sure will be an episode unto itself.
Stanford Cummings:
That one's going to be a long one if we do it. We'll have to see what happens, it's very much up in the air right now, is it not?
Hamish Mills-McEwan:
Up in the air. Will it be up in the air by June 11th? I believe it will be up in the air by the time this airs. So more to come. Stay tuned. But with that, like, comment, subscribe, share with your friends. And that is a wrap.