If you have been injured in a motor vehicle accident, there are several ways in which you can receive compensation.
Some of these routes are no-fault, including the Statutory Accident Benefits Schedule (“SABS”), which are provincial benefits available to all insured parties involved in a car accident. Other cases, such as tort or wrongdoing, permit the injured innocent party to sue the at-fault party for compensation. Determination of fault also effects the amount of compensation drivers can receive for property damage under the mandatory Ontario Automobile Policy (“OAP 1”), since the amount reduced with the percentage of fault. Fault ratings may might additionally affect the driver's and insurance policyholder's future risk factor and therefore future insurance rates. Benefits that are dependent on a lack of fault require a determination of wrongdoing and the attribution of blame to one or more of the drivers. How to Determine Fault The Fault Determination Rules (“FDR”) is a regulation enacted under the Ontario Insurance Act (“Act”) to judge driver responsibility following car accidents in the province. Accidents occurring outside of Ontario are governed by that jurisdiction’s regulations, which, while similar in substance, have slight differences. Insurers are required by the Act to determine fault through these rules for the purposes of their services. There are several basic features of the FDR. First, evidence for recreating the accident can be derived from several sources, including the driver’s accounts, independent witnesses, and police reports. Second, the FDR use a gradual scale that is set to five numbers, as drivers are either 0%, 25%, 50%, 75%, or 100% at-fault. Additionally, fault is determined without consideration of circumstances, as the weather conditions, road conditions, visibility, or actions of pedestrians are irrelevant. Third, where more than on fault rule applies, then the one that gives the least fault is used. The rules then dive into a number of different factual scenarios, which apply depending on the circumstance. For instance, Rule 6.2 states that where Car “B” rear-ends a stopped or moving Car “A”, then “B” receives 100% of the blame to “A’s” 0%. In this case, “A” would be able to receive compensatory damages from “B” in tort or could receive coverage for property damage without deduction for fault. For a full discussion of the FDR and their intricacies for specific situations, please see the Regulation and its corresponding diagrams. The ‘One-Percent Rule’ in Tort A special feature of the tort system is the well-established principle of joint and several liability, which states that where two or more parties are found to be jointly and severally liable for a tortious injury, each party is independently responsible for the full extent of the injuries stemming from the tortious act (Blackwater v. Plint, 2005 SCC 58 (CanLII)). For example, if a plaintiff obtains monetary judgement of $1,000,000 against a party that is 1% at-fault, all joint and several defendants become indivisibly liable for the whole injury; an outcome giving rise to the ‘1% Rule’ moniker. Therefore, the court will not apportion liability based on proportionate fault and the plaintiff can collect the full value of the judgment from any one defendant. Instead, it is the responsibility of the indemnified defendant to seek contribution from the other at-fault defendants and to apportion the loss fairly between themselves. Therefore, where two or more parties are at-fault for a motor vehicle accident, then they are both jointly and severally liable for the whole amount. Section 267.7 of the Insurance Act basically enumerates the joint and several liability doctrines within motor vehicle accidents, which ensures its applicability. It also includes the right of contribution within the provision. In Rutter v Allen, 2012 BCSC 135 (CanLII), the plaintiff was hit by two separate defendants in an undetermined sequence. Despite the exact cause of the injuries being unknown, the court concluded that both of these impacts caused the plaintiff’s injuries and the negligent tortfeasors were held jointly and severally liable. Interpretation of Fault Under the Caselaw While almost all scenarios are covered by the FDR, there are rare circumstances where the Rules do not apply, and the court must determine responsibility through “the ordinary rules of the law.” These ordinary rules include those of the road as well as tort case law. In State Farm Mutual Automobile Insurance Company v. Aviva Canada Inc., 2015 ONCA 920, an automobile took a left-hand turn and caused a motorcyclist to swerve, lose control, and fall to the ground, injuring themselves in the process. State Farm paid the benefits to their insured motorcyclist and then sought indemnification from the insurer of the automobile, Aviva. The issue in this case is about who was at fault in the accident. This scenario was not provided by the FDR, so the Arbitrator used “the ordinary rules of the law” to determine that the motor vehicle insured by Aviva was 100% at fault for the accident. The Arbitrator took a contextual approach that considered a number of provisions in the Highway Traffic Act, including who had the right of way. Summary Determining the at-fault cause of motor vehicle accidents has a significant effect on a number of legal entitlements for an injured party and the cost of their future insurance premiums. Though the most common scenarios are provided for within the Regulations, they are circumstances that require the court to determine responsibility through a joint common sense and legal interpretation of the “ordinary rules.” The personal injury lawyers at Littlejohn Barristers have significant experience representing clients dealing with motor vehicle accidents. If you have been in an accident or have been denied compensation or disability benefits, contact our Barrie office at 705-725-7355 to see if we can help.