Determining Jurisdiction with Out of Province Car Accidents
Ontario has taken great steps to reduce the pain and hassle involved in auto insurance claims. Our no-fault system goes a long way to ensure that claims that arise in Ontario are handled swiftly and fairly.
But what do you do if you’ve been in an accident outside of Ontario? Are you still covered? And if you need to sue, where will the case be heard?
In Canada, insurance laws vary. Each province and territory have their own system for handling car accidents.
The good news is you can take it with you
If you have an Ontario insurance policy, you’re covered to drive anywhere within Canada and the US. Everywhere you go, your coverage goes with you.
Most Ontario auto insurance will cover you with the standard no-fault insurance whether an accident occurs in Ontario, elsewhere in Canada, or in the states. Policies typically insure you against:
- liability (minimum $200,000, recommended $1,000,000)
- collision (sometimes optional)
- comprehensive (sometimes optional)
- income replacement or non-earner/caregiver
- attendant care
- death and funeral
- expenses of visitors
- reimbursement for damaged clothing, glasses and medical devices
- housekeeping and home maintenance expenses
- uninsured automobile coverage
- family protection endorsement
Actual coverage will vary based on your specific policy and carrier.
Uninsured automobile coverage protects you in case an accident is caused by a driver without insurance. And the family protection endorsement protects you and certain family members in the event of an injury if the other driver is underinsured.
What to do if you are injured out-of-province
If you’re injured in an out-of-province automobile accident, return to Ontario as soon as you can. This is where you’ll make your claim to your insurance company, undergo rehabilitation, and try to get back to life as best you can.
And if you decide to pursue legal action against the other driver, you should do that from Ontario as well. This is where you—the plaintiff—live, as well as anyone that might be called upon to testify as to the damages you’re suing for. These people might include:
- family members
- friends and relatives
- teachers or employers
- treating doctors
- rehabilitation therapists
However, having all these connections to Ontario doesn’t guarantee that your case will fall under the jurisdiction of the Ontario Courts system. To find out what it takes to get an out-of-province accident claim tried in Ontario, we need to look at some case studies.
Case Study: Club Resorts Ltd. v. Van Breda (2012)
The landmark case regarding out-of-province auto accident jurisdiction went before the Supreme Court of Canada (SCC) in 2012. Without getting bogged down in the specifics of the Van Breda case, let’s instead focus on the decision handed down by the SCC and how that will be applied to every out-of-province claim going forward.
Their decision specified four presumptive factors that would have to exist before Ontario Courts could claim jurisdiction. All four factors would have to be satisfied.
- The defendant—the at-fault party—lives in Ontario.
- The defendant carries on business in Ontario.
- The tort was committed in Ontario. In other words, you—the plaintiff—were somehow wronged by the defendant in Ontario.
- A contract connected with the dispute was made in Ontario.
If any one of these conditions is not met and the out-of-province defendant won’t voluntarily submit to an Ontario Court’s jurisdiction, you’ll likely have to bring your claim forward in another jurisdiction. This is usually where the accident happened.
In any case, the burden of proving these connecting factors falls entirely on the plaintiff. And the defendant will also have the opportunity to rebut.
Now let’s see how Van Breda has served as a precedent in other cases.
Case Study: Cesario v. Gondek (2012)
Within a four-week span, Dominic Cesario—a resident of Ontario—had the misfortune of being in two separate accidents—one in New York State, the other in Ontario. Claiming that his injuries could not be treated separately, Mr. Cesario brought forward a single suit against both the other drivers and his own insurance company.
When the case came before Justice Edwards, it was decided that it was in the best interests of justice to assume jurisdiction and keep the three lawsuits together. Otherwise, Mr. Cesario would have three cases on his hands—one of which was out of the country. This raised the prospect that the verdicts might be inconsistent.
As for the presumptive factors, the accident in Ontario satisfied the first three conditions. It was also shown that the New York driver’s insurance company was registered with the Financial Services Commission of Ontario. Therefore, the fourth condition was met and Ontario retained jurisdiction over all three actions.
But don’t let the success of Cesario v. Gondek give you the impression that it’s easy for Ontario to apply Van Breda to claim jurisdiction.
Case Study: Paraie v. Cangemi (2012)
In September 2009, a driver from Ontario, Alan Paraie, was rear-ended in New York State by a New York resident. The at-fault driver was underinsured, so Mr. Paraie brought a suit against her as well as his own insurance company under the family protection endorsement (see above). Paraie argued that the claim against his own insurer satisfied the presumptive factor regarding a contract connected with the dispute.
However, when Paraie v. Cangemi came before Justice Lederer, it was decided that the claim against Paraie’s insurer wasn’t enough to make Ontario accept jurisdiction. The plaintiff was told to pursue his case in New York. He would only be allowed to pursue an action against his own insurance company in Ontario if the New York insurer refused to pay the difference owed.
What to do if you’ve been in an out-of-province accident
If you’re an Ontario resident who’s been injured in an out-of-province accident, don’t hesitate to retain a lawyer in Ontario. If your lawyer isn’t licensed to also practice law in the province, territory, or state where the accident occurred, they will immediately retain another lawyer who is.
The out-of-province lawyer will advise your Ontario lawyer as to the substantive laws that govern auto accidents in that jurisdiction. Sometimes, even when an out-of-province case is tried in Ontario following Ontario’s procedural rules, the substantive law of the other jurisdiction could still be applied.
Substantive law covers, among other things, the limitation period that defines when you can still file suit after an accident.
If the Ontario Court doesn’t accept jurisdiction, your Ontario lawyer may ask your out-of-province counsel to issue a claim. They may also choose to do this if the defendant refuses to acknowledge Ontario’s jurisdiction and it seems doubtful they will cooperate.
Thorny insurance issues
Even though insurance in Ontario is relatively simple and straightforward, things start to get complicated when Ontario drivers get into accidents outside of the province. The Van Breda presumptive factors required to have a lawsuit brought under the jurisdiction of Ontario Courts are difficult to satisfy. Even if you meet the criteria, substantive law from the other jurisdiction may still be applied.
Regardless of jurisdictional considerations, you need to retain a lawyer in Ontario who can also retain a lawyer on your behalf in the jurisdiction where the accident took place. And you need to do this as quickly as possible to make sure you satisfy the limitation periods in both jurisdictions.
Have you been involved in an out-of-province auto accident?
If you’ve been injured in a car accident outside of Ontario, you should take immediate steps to hire a lawyer who can help you pursue coordinated action in both jurisdictions.
The dedicated team of professionals at Mackesy Smye, composed of some of Ontario’s most respected personal injury lawyers, can help you make sense of the complex issues involved both here and out-of-province. Contact us today to find out what your best course of action is.