Each year, many Ontarians are involved in car accidents while travelling outside of the province. These claims often involve complex issues, such as where a civil action should be started and questions as to which jurisdiction’s laws should apply.
If you are from Ontario and are involved in a car accident in the United States, you may be able to commence an action in Ontario or in the State in which the accident occurred, or both. Your ability to do so will depend upon many factors, including any insurance available to the parties involved and the particular facts of each case.
How Jurisdiction is Determined in Ontario
Determining whether an Ontario Court has jurisdiction to hear your action involves a two part test. First, the Court will determine if there are any “presumptive connecting factors” linking the subject matter of the action to Ontario. The burden of demonstrating the existence of one or more connecting factors is on the party seeking to bring his or her action in Ontario.
The Supreme Court of Canada established the following four presumptive connecting factors in a case called Van Breda v.Village Resorts Ltd.:
- The defendant lives in or is a resident of the province;
- The defendant carries on business in the province;
- The wrongful act was committed in the province; and,
- A contract connected with the dispute was made in the province.
Where Ontario is found to have jurisdiction over an action, the second part of the test considers what is referred to as “forum non conveniens”. At this stage, the Court may consider issues such as fairness and efficiency to the parties involved. Some examples include the difficulty or inconvenience to you having to pursue litigation outside of Ontario or if you require ongoing medical attention in Ontario. The opposing party will have the burden of showing that the other forum is clearly more appropriate than Ontario.
Is My Case Worth Less in Other Jurisdictions?
Unfortunately, many States require only minimal auto insurance coverage for their drivers. Therefore, if you are injured in the U.S., your access to insurance funds may be limited even if your damages are much higher. Fortunately, you may still be able to access accident benefits through your own policy, including under the Family Protection Endorsement (OCPF-44R). This coverage may increase your protection against uninsured or underinsured drivers.
Be Aware of Limitation Periods
The law of the place where the accident occurred (also known as the “substantive law”) is the law which determines who is at fault for an accident. The substantive law also determines the timeframe within which you must bring your action (also known as the “limitation period”) as against the at-fault driver. U.S. limitation periods are often shorter than the periods that apply in Ontario. As such, it is crucial to contact a personal injury lawyer as soon as possible following the accident. If you miss the U.S. limitation period, you may not be able to bring an action in Ontario.
It is also important to discuss your insurance coverage with your agent before travelling outside of Ontario.
Anna Stoll is practices with the Siskinds Personal Injury Law department. If you have questions about the information contained within this article or any other insurance questions, please write to [email protected] or call 519-660-7832.