Cross-Border MVAs: Am I Covered? Where to issue?

Who doesn’t love a good road trip, right?

With summer in full swing, many Ontarians are packing the car and crossing the border into the United States for shopping, vacationing, catching the occasional football game, or visiting family. Unfortunately, with a high volume of Ontario motorists in the United States at any given time, cross-border car accidents are often a daily occurrence.

There are at least two concerns for Ontarians seeking compensation for injuries sustained in a motor vehicle accident that occurred while traveling in the United States.

The first is coverage. Although Ontario motorists must carry a minimum of $200,000.00 of liability coverage in order to legally operate their vehicles, there are no equivalent mandatory minimum insurance requirements in most of the United States. This means that in car accidents involving an American motorist, there is a good chance the motorist may have little or no insurance from which the injured party can seek compensation.

A second concern that frequently arises in cross-border motor vehicle accident cases relates to jurisdiction. Plaintiffs seeking to bring a law suit for their damages are often left scratching their heads about where to issue their statement of claim – in Ontario, where the injured person (and presumably their family, treating physicians, and other individuals likely to be called as witnesses at a trial) regularly reside, or in the United States?

There are a few things you should know as an Ontario resident before packing up the car and heading south this summer.

Am I covered?

The good news is that there are safeguards in the standard Ontario Motor Vehicle Policy that will protect Ontario motorists irrespective of whether their accident occurs at home or out of province.

Accident Benefits

Under section 59 of the Statutory Accident Benefits Schedule (or “SABS”), drivers with an Ontario Motor Vehicle Policy of insurance are entitled to accident benefits –providing compensation to them and their passengers regardless of who is at fault for the accident – even where the accident occurs in another province or territory of Canada or a jurisdiction in the United States.

Accident benefits include:

1. Income replacement benefits;
2. Medical/rehabilitation benefits;
3. Attendant Care Benefits;
4. Lost Educational Benefits;
5. Death and Funeral Benefits;
6. Visitor Expenses;
7. Reimbursement for clothing, medical and dental devices lost or damaged in the accident; and
8. Housekeeping expenses and caregiver benefits, but only in cases involving catastrophic injury.

The Catch

The accident must have occurred in either Canada or the United States.

Section 59(1)(b) also provides that individuals seeking accident benefits for an accident that occurred outside of Ontario are only eligible so long as “no benefits are received under the law of the jurisdiction in which the accident occurred.”

Uninsured and Underinsured Motorist Coverage

Another safeguard in the standard Ontario Motor Vehicle Policy is the uninsured and underinsured motorist coverage endorsement mandated under section 265 of the Ontario Insurance Act. Under this coverage, if you get into an accident while travelling in the United States involving either a hit-and-run situation or a driver that has little or no insurance, you may sue your own Ontario insurance company. Upon receipt of your claim, your insurer will effectively “step into the shoes” of the uninsured or unidentified driver and defend your claim.

The Catch

Where the endorsement is activated, coverage is automatically limited to a maximum of $200,000.00. This limit is shared between all injured parties advancing a claim under the policy.

Where to issue?

In Club Resorts Ltd. V Van Breda, 2012 SCC 17, the Supreme Court of Canada held that before a Canadian court can assume jurisdiction over a claim for personal injury damages sustained in another province or country, the claimant must prove on a balance of probabilities that a “real and substantial connection” exists between the claim and the forum in which it is being advanced.

Unfortunately, this is not always easy to prove.

In the Ontario Superior Court decision of Romanko v. Nettina, 2014 ONSC 5153, for instance, two Canadian plaintiffs brought a claim against an American motorist for injury sustained in a motor vehicle accident in the State of New York. Ruling in the defendant’s favour and finding that the Ontario Superior Court did not have jurisdiction over the action, the Court held that the simple fact that the plaintiffs were covered under an Ontario motor vehicle policy was not in itself a presumptive connecting factor sufficient to satisfy the real and substantial connection test. The plaintiffs were accordingly forced to bring their claim against the defendant in New York State and undergo the additional cost and inconvenience of bringing an extra-provincial claim.

Conclusion

The law concerning extra-provincial motor vehicle accidents is highly technical and constantly changing. If you are involved in an accident while travelling in the United States, it is best to seek the advice of a personal injury lawyer as early as possible so that you are properly informed about available avenues for compensation and the appropriate forum for advancing your claim. Call us at (416) 967-9100 or contact us online to schedule a free consultation today.