Prepared by Isaac da Silva Aboo, Summer Student
In Ontario, there are a few options available to cyclists involved in an accident with a motor vehicle. Firstly, regardless of who is at fault, the cyclist is entitled to accident benefits. If the cyclist or the cyclist’s spouse owns a motor vehicle, the claim for accident benefits is submitted through that policy. If they do not, then the claim is submitted to the insurer of the other motor vehicle (or vehicles) involved in the accident.
In the event the cyclist does not have their own policy and the vehicle involved in the accident is not insured, as a last resort the cyclist can apply for accident benefits through the Motor Vehicle Accident Claims Fund.
Benefits can include medical and rehabilitation benefits, attendant care benefits, housekeeping expenses, non-earner benefits for individuals who are not employed (retired individuals, students etc.), income replacement benefits for employed (and self-employed) persons, and caregiver benefits for persons who provide care to family members. The benefits available will depend on a number of factors including the scope of the particular policy and the severity of the injury sustained by the cyclist.
If the driver of the vehicle is at fault, the cyclist may also be entitled to bring an action against the driver to recover for damages not covered by the accident benefits. Claims often include damages for pain and suffering, loss of enjoyment of life, past and future loss of income, loss of household and handy-person capacity and future cost of care. In addition, pursuant to the Family Law Act, the cyclist’s close family members may also be entitled to recover damages. These claims are for loss of guidance, care and companionship and can sometimes include the value of nursing, housekeeping and other services the family member has performed or will perform for or on behalf of the injured person, as well as loss of income and reasonable expenses incurred on behalf of the injured person.
Whether you are entitled to bring an action or not will depend on whether you meet what is called the “threshold”, which in Ontario means that your injury is deemed to be both permanent and serious. If you do not meet this test, the only damages you are entitled to sue for relate to income loss. There is also a monetary deductible that applies to general damages which must be considered in determining whether a law suit should be pursued.
In sum, a cyclist involved in an accident with a motor vehicle is entitled to the same compensation that passengers in a vehicle who sustained injury would be eligible for. In order to determine what benefits are available to you and if you have a potential claim against the defendant driver, it is best to consult with a personal injury lawyer early on in the process.
For more information, please contact Caroline Failes, Partner at 613.566.2849 or [email protected].
