Insurance Systems in Canada: A Guide for Victims & Survivors of Impaired Driving - MADD Canada
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Insurance Systems in Canada: A Guide for Victims & Survivors of Impaired Driving
2010 Winston Park Drive, Suite 500, Oakville, ON L6H 5R7 Tel: 1-800-665-6233 • Fax: 905-829-8860 Email: info@madd.ca • Web: madd.ca maddcanada.ca @maddcanada madd_canada
Table of Contents
Introduction 4
General Overview of Insurance in Canada 6
(A) Accident Benefits 6
(B) Third-Party Liability 7
(C) Uninsured Protection 7
What is the Difference Between Fault vs No-Fault Compensation? 8
Do I Have the Right to Sue? For What? 10
My Province/Territory Does Not Provide the Option to Sue,
but the Amount I Received is Not Enough. What Options Do I Have? 12
The Driver Was Drinking At A Bar Before The Crash. Can I Sue Them Too? 12
There Was a Criminal Conviction, Do We Need to Have A Civil Trial? 12
Will There Be a Trial? 13
I Have Expenses Now. Do I Have to Wait for the Civil Suit to
be Over Before I Get Financial Assistance? 14
I Cannot Afford a Lawyer. What Do I Do? 15
I Heard That Defence Counsel Might Have Private Investigators
Follow Me or May Gain Access to My Private Medical Records. 15
What If I Was a Pedestrian or a Passenger, Am I Still Covered? 16
The Driver Did Not Have Insurance or Fled the Scene and Was
Not Caught. Who Compensates Me? 16
Criminal vs. Civil Systems 17
(A) Criminal 17
(B) Civil 18
(i) Discovery 19
What Do We Do After a Crash? 20
Insurance Systems in Canada:
A Guide for Victims & Survivors of Impaired Driving
Introduction
As a victim or survivor of impaired driving, depending on where you live, you may
find yourself in the middle of two different and confusing legal systems. The
criminal justice system, which is focused on holding individuals accountable for
their actions, and the civil law process, which is focused on financial
compensation for the victim/survivor. Both systems are complex and difficult for
victims and survivors to navigate.
This report is intended to provide victims and survivors of impaired driving with a
basic level of understanding about automobile insurance and answer some
frequently asked questions about the processes that occur in the event of a
collision.1
Every driver in Canada is legally obligated to have insurance, but many of us do
not understand our province or territory’s automobile insurance laws. Yet, these
laws have a great impact on the daily lives of Canadians.
1 This document is accurate as of February 3, 2021. British Columbia is currently in the process of
shifting its insurance regime to a no-fault system, which will necessitate an update to this document at a
later date.
4
Unlike the criminal justice system, the insurance system differs between
jurisdictions. In some jurisdictions, insurance is government run, and in others, it
is privately run. In some, victims and survivors can sue the impaired driver but in
others, no such right exists. And to make things even more complicated, financial
benefits differ from jurisdiction to jurisdiction as well.
MADD Canada has no position on whether insurance should be provided one way
or another – government vs private; fault vs no-fault. The preferable approach,
from MADD Canada’s perspective, is the one that delivers the most
comprehensive and substantial coverage to the largest number of victims and
survivors in the most efficient and effective manner. Whereas everyone else
involved in the debate on how insurance is provided has a stake – private
insurance companies want to maximize profit; personal injury lawyers benefit
from systems that have a broad right to sue – MADD Canada’s interest is solely in
ensuring the financial needs of victims and survivors are addressed.
It is important to note that this document is not legal advice and provides only
basic information about the insurance systems of Canada. If you are in a collision,
you should inform your insurer as soon as possible and consult with a lawyer. A
lawyer will be able to guide you through the process and provide you with legal
advice tailored to your specific situation.
5
GENERAL OVERVIEW OF
INSURANCE IN CANADA
Automobile insurance in Canada is provided by private companies,
and/or by provincial or territorial government agencies. Regardless
of the form of administration, every vehicle should carry minimum
amounts of insurance that include accident benefits, third-party
liability coverage, and uninsured protection.
(A) Accident Benefits
Accident benefits coverage is mandatory in every Canadian jurisdiction, except for
Newfoundland and Labrador where such coverage is optional. Accident benefits
provide insured parties with no-fault compensation from their own insurance
company when they are injured or killed in a motor vehicle crash. The benefits
typically include: medical and rehabilitation costs; loss of earnings; death benefits
for the deceased’s family; and funeral expenses. There is tremendous variation in
the maximum awards available under these headings and there are a myriad of
deductibles, eligibility thresholds, and caps on the various benefits provided in
each jurisdiction.
While it is not feasible in this document to summarize the multitude of
deductibles, thresholds and caps that apply to the various benefits in each
province and territory, their importance should not be overlooked. The vast
majority of insurance claims involve minor or moderate injuries and losses. If the
relevant benefits are subject to significant deductibles, thresholds and caps, then
these victims and survivors will have to absorb a significant percentage of the
costs of their injuries or losses without compensation. Thus, from a victim/survivor
compensation perspective, it is important to consider not only the maximum
payment, but also any related deductibles, thresholds or caps.
6
Further, the limits on no-fault accident benefits cannot be viewed in isolation from
an injured party’s right to sue. Generally speaking, the more limited the no-fault
benefits, the broader the injured party’s right to sue. Saskatchewan is unique in
giving drivers a choice between “no-fault” and “fault” insurance plans.
(B) Third-Party Liability
With the exception of Québec and Nova Scotia, the mandatory minimum amount
of third-party coverage is $200,000 across Canada. Québec only requires $50,000
of third-party coverage, but this applies exclusively to property damage.2 In
contrast, Nova Scotia requires a minimum of $500,000 of third-party coverage.3
(C) Uninsured Protection
Uninsured motorist coverage in a car insurance policy provides victims/survivors
with compensation for personal injuries and property damages when the at-fault
driver is uninsured or flees and is not apprehended. Impaired driving offenders
may drive while uninsured or flee the scene to evade criminal charges. Currently,
the minimum uninsured protection is equivalent to the minimum third-party
liability coverage, which in most jurisdictions is only $200,000. Individuals
injured by an uninsured driver may also be entitled to compensation through
underinsured motorist funds and other alternative sources of compensation.
2 Québec, Automobile Insurance Act, R.S.Q. c. A-25, ss. 85 & 87
3 Insurance Act, R.S.N.S. 1989, c. 231, s. 125(1). The minimum third-party coverage in Manitoba is
increasing to $500,000 for policies dated April 1, 2021 or later. Manitoba Public Insurance, Basic third-party
liability insurance, online: .
7
What Is The Difference Between
Fault Vs No-Fault Compensation?
The issue of fault versus no-fault compensation generates considerable
controversy. Many organizations and individuals hold strong beliefs about the
relative merits of the two approaches. Under no-fault systems, those who are
injured in a crash receive compensation from their own insurance company,
regardless of fault. In other words, crash victims/survivors are not required
to prove that another party was at fault in causing their injuries to obtain
compensation. No-fault systems are intended to reduce the delays and costs of
initiating adversarial proceedings, thereby providing benefits to victims/survivors
as quickly and efficiently as possible. In contrast, at-fault systems are those where
the victim or survivor is compensated by the at-fault driver, so it is necessary to
show who is at-fault.
Automobile insurance systems can be divided into three broad categories based
on the role of fault in awarding compensation. First, in a pure fault-based system,
victims/survivors are required to seek compensation from the at-fault driver
and his or her insurer. The automobile insurance system in Newfoundland and
Labrador comes closest to a pure fault-based scheme in Canada.4 Second, in a
pure no-fault system, injured parties receive compensation for all their personal
injuries and property damages from their own insurance company, regardless of
who was at fault. Injured parties have no right to sue an at-fault driver, even if their
losses exceed the no-fault benefits that they received. Québec and Manitoba are
examples of this model, but only in relation to personal injuries.5 Third, in modified
fault-based systems, the injured party typically receives no-fault accident benefits
for specified injuries and losses up to pre-set maximums and may then sue the at-
fault driver for certain losses in excess of these limits.
4 Newfoundland and Labrador, Highway Traffic Act, R.S.N.L. 1990, c. H-3, s. 81(1).
5 Québec bases compensation for property damages on fault. Québec, Automobile Insurance Act, R.S.Q.
c. A-25, ss. 108-109.
8
For example, if a victim or survivor suffers catastrophic injuries, they may have the
option to sue but do not have that option for minor or less serious injuries. In
terms of personal injuries, most jurisdictions in Canada can be described as having
a modified fault-based system, because they provide some combination of no-
fault and fault-based compensation.
9
Do I Have The Right To Sue?
For What?
There are two main things victims/survivors can sue for – serious injuries and
wrongful deaths. When a collision results in serious injury, compensation may
be available for injured persons and their families from a number of different
sources. Compensation may be available through the insurer of the at-fault
driver, in addition to statutory accident benefits payable from an injured person’s
own insurer. The at-fault driver’s insurer may be responsible for compensation
for pain and suffering, loss of income, current and future healthcare expenses,
housekeeping costs, and other losses. In most cases, the at-fault driver’s insurance
company will be the main target of any litigation, rather than the at-fault driver
themself.
If someone has been killed in an impaired driving crash, the surviving spouse,
children, parents, grandparents, brothers, and sisters of the deceased person may
be able to make claims for damages. Families can be robbed of an income earner
which can have a devastating impact on a family. Benefits are usually available for
funeral expenses and a death benefit is available for the spouse and dependents
of the deceased.
As the chart on the next page illustrates, a victim/survivor’s right to sue
varies across Canada. For the most part, jurisdictions that provide the most
comprehensive no-fault benefits impose the greatest limits on the right to sue.
The significance of these limits will depend on the extent to which they are
offset by readily available and substantial no-fault benefits. For example, under
Saskatchewan’s no-fault insurance plan, the right to sue for non-pecuniary losses
is severely limited.
10The Right To Sue
Medical/ Lost Pain and
Rehab.* Earnings* Suffering*
AB √ √ limited
BC √ √ limited
MB no no no
NB √ √ limited
NL √ √ √
NT √ √ √
NS √ √ limited
NU √ √ √
ON limited √ limited
PE √ √ limited
QC no no no
NO- √ √ very limited
FAULT
SK
FAULT
√ √ √
YK √ √ √
* We are referring to the right to sue for losses in excess of the no-fault accident benefits.
11My Province/Territory Does Not Provide The
Option To Sue, But The Amount I Received
Is Not Enough. What Options Do I Have?
As mentioned, some provinces/territories do not allow victims/survivors the
right to sue. Each case is assessed based on the injuries and/or loss. For example,
victims/survivors who suffer long-term injuries may receive funds over a period of
time to cover treatment. In other cases, such as a case where someone was killed,
it may be a single lump sum. You may be able to ask for a review of a decision, but
you will not be able to initiate a civil suit.
The Driver Was Drinking At A Bar Before The
Crash. Can I Sue Them Too?
It may be possible to sue other parties, like commercial hosts such as restaurants
or bars, if their actions have contributed to the crash. If a commercial host does
not meet the standard of care owed to their patrons, they may be held liable for
the actions of their patron. Whether or not a provider will be found liable for a
crash caused by an impaired driver will depend on the facts of the case and should
not be assumed for every case.
There Was A Criminal Conviction, Do We
Need To Have A Civil Trial?
A criminal conviction for impaired driving can be an important part of the
insurance and/or civil litigation process, but victims and survivors of impaired
driving crashes will still have to prove the economic losses and expenses
associated with their injuries or loss. If a settlement cannot be reached, a civil trial
will be necessary.
12Will There Be A Trial?
There is no way to guarantee whether or not a case will go to trial or be settled out
of court. Most cases are resolved without a trial, but sometimes it is necessary to
see a case through to trial in order to pursue the maximum possible
compensation for the victim/survivor. In most instances trials are public. This is at
the discretion of the judge.
13I Have Expenses Now. Do I Have To Wait
For The Civil Suit To Be Over Before I Get
Financial Assistance?
Typically, victims and survivors will receive some compensation through their
own insurance company via their accident benefits. Accident benefits provide
insured parties with no-fault compensation from their own insurance company
when they are injured or killed in a motor vehicle crash. The benefits typically
include:
(i) medical and rehabilitation costs;
(ii) loss of earnings;
(iii) death benefits for the deceased’s family; and
(iv) funeral expenses.
Generally, in the case of a civil suit against the at-fault driver’s insurance company,
compensation for your losses will not be paid until the case is resolved. However,
in certain limited circumstances, your lawyer may be able to persuade the
responsible party’s insurance company to make an advance payment.
14I Cannot Afford A Lawyer. What Do I Do?
In most jurisdictions, personal injury lawyers will take a case on a contingency fee
basis. This means that the lawyer will only receive payment if the victim/survivor’s
case is successful and the victim/survivor receives compensation. The lawyer will
take a portion of whatever compensation is achieved as their payment. This fee is
typically about a third of whatever the victim/survivor receives. There is no
guarantee that a lawyer will take on any specific case.
I Heard That Defence Counsel Might Have
Private Investigators Follow Me Or May Gain
Access To My Private Medical Records.
It is possible the defence team will follow the victim/survivor on social media, so
it is important to protect your privacy and discuss concerns with your lawyer.
Some lawyers may recommend social media be avoided altogether.
Sometimes, defence lawyers may have injured victims/survivors followed to
confirm their injuries are as serious as alleged. If a victim/survivor has an injured
back but they are seen lifting heavy things, it could be harmful to a case.
The defendant’s lawyer will have access to the victim/survivor’s medical history
and will ask very personal questions during an examination for discovery. If
someone lost a partner, they may ask if the widow/widower has entered into a
new relationship. If someone lost a child, they may ask very invasive questions
about the kind of relationship they had with their child. If someone suffered an
injury, they may ask about health issues going back years. The civil process can be
much more invasive than the criminal process.
15What If I Was A Pedestrian Or A Passenger,
Am I Still Covered?
Generally, you are still eligible for accident benefits even if you were not driving at
the time of the collision. This process differs between the various jurisdictions. In
some jurisdictions, if you have automobile insurance of your own, your insurance
will provide you with accident benefits even though your car was not in use at the
time of the collision. You can also file your claim through the driver’s insurance
if you do not have insurance. In other jurisdictions, you must file your claim
through the driver’s insurance. In situations where neither you nor the driver
have insurance, you may also be able to file a claim through another source of
compensation such as a Motor Vehicle Accident Fund.
The Driver Did Not Have Insurance Or
Fled The Scene And Was Not Caught. Who
Compensates Me?
You may receive compensation from your own insurer via your accident benefits.
Governments and insurance companies also provide some protection through
mandatory uninsured coverage or underinsured motorist funds, although this
compensation is typically limited to the minimum third-party liability coverage.
16CRIMINAL VS CIVIL SYSTEMS
(A) Criminal
Many victims, survivors and their families are surprised by how little they are
involved in the criminal process and how little information they receive from
the crown attorney. The purpose of the criminal law is to protect society by
deterring morally blameworthy conduct and holding individuals accountable
for their actions. Crimes are public wrongs for which the Crown brings charges
on the state’s behalf. In other words, crimes are committed against the state, not
individuals, and crown attorneys are the state’s lawyer, not the victim/survivor’s.
In the criminal justice system, the accused has more rights than the victim/
survivor, including the right to be presumed innocent, regardless of the
evidence against them. This system is not designed to be fair to the victim/
survivor, but rather to provide the accused with the maximum safeguards
possible to ensure that there are no miscarriages of justice. Indeed, the crown
has a duty not to proceed, unless there is a realistic prospect of conviction.
The role of the victim/survivor is extremely limited in the criminal justice system,
and he or she may not play any role at all. The victim/survivor may be called
to testify by either the Crown or defence counsel, but do not have enforceable
rights regarding participation, or to dictate whether the case will be brought to
trial or be appealed. Victims/survivors do have a right to provide a victim impact
statement before sentencing.
17(B) Civil
In contrast to the criminal system, civil proceedings involve private wrongs, such
as torts, breaches of contracts and negligence claims. The purpose of the civil
system is to restore the aggrieved party to the position they were in prior to the
deleterious acts or omissions of the other party. Civil actions are brought and
maintained by the aggrieved party, usually for the purpose of obtaining financial
compensation, against those who are believed to be responsible for the loss
suffered. Parties in a civil dispute can, typically, settle at any time and on any terms
they choose. The process is designed to encourage settlements.
The victim/survivor and/or his or her family have a lawyer that represents them
personally. The victim/survivor or his or her litigation guardian is the instigator of
the civil lawsuit and, while the lawyer may suggest a course of action, the key
decisions, such as whether to settle or go to trial, are the victim/survivor’s. It is
possible to change lawyers in the civil system should the need or want arise. The
victim/survivor will typically act as a witness during their civil proceedings.
18(i) Discovery
Discovery is a mechanism used in the civil process to examine a person before
trial. Discovery permits counsel to assess the strength of the opposing party’s case,
find topics of agreement, obtain admissions, facilitate settlement, and minimize
the likelihood of surprise at trial. Part of the discovery process is examinations for
discovery, which is the Canadian equivalent to the American deposition. As part of
this process, each party has a set amount of time to split how they wish, but more
time can be granted, typically if the parties’ consent or if the court orders more
time.
Discovery is often the reason why many individuals do not wish to proceed with
litigation. It is a very intrusive process, which will discuss, among other topics, the
victim/survivor, medical evidence from prior years previous, financials, social
media, and evidence from friends and family. Questions can be asked about
anything that is relevant, even topics that may be highly private or embarrassing,
including sexual health or bankruptcy. Participating in discovery is mandatory,
and it can be incredibly stressful mentally, emotionally and physically for victims/
survivors and their families.
19What Do We Do After A Crash?
As soon as possible after a crash, you should:
• Make sure that the police have all the information they need about the
collision.
• Notify your insurance company of your collision as soon as possible.
• Do not voluntarily assume liability, make statements or sign any documents
admitting fault, or indicate that you will refrain from seeking damages, suing,
or holding the other parties accountable.
• Keep receipts for all related expenses and ensure that family members record
the dates and time spent caring for the injured person.
• Consult with a personal injury lawyer to explore your rights. Most lawyers will
provide a free consultation. Please see MADD Canada’s Guide to Personal
Injury Law for more information about how to choose a lawyer.
• Check to see if you have additional insurance coverage from work, school, or
another private plan.
2021
For Victim Support call
MADD Canada’s toll-free line:
1-800-665-6233
2010 Winston Park Drive, Suite 500, Oakville, ON L6H 5R7
Tel: 1-800-665-6233 • Fax: 905-829-8860
Email: info@madd.ca • Web: madd.ca
maddcanada.ca @maddcanada madd_canada
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