Fault Determination Rules in Ontario: Fighting Back Against Your Insurer

In my 18 years as a litigator, I have been asked countless times about the Fault Determination Rules.  It’s almost always the same question: “My insurer assessed me as being (partially or fully) responsible for a minor car accident, using this thing called the Fault Determination Rules. What can I do?”

My answer is usually that you can fight the determination yourself, because it’s much too expensive to hire a lawyer to fight on your behalf.

For example, let’s say that you are in a minor bump with $1000 in vehicle damage and your insurer says you are 50% responsible for the accident.  Forgetting about insurance policy deductibles for a moment, this means that your insurer would only pay $500 towards your vehicle repair.

What can you do if you don’t agree with the insurer’s finding?

What if you say the way the accident happened is different from the “picture” or illustration that the insurer is relying upon, but the insurer won’t listen to you?

The practical problem is that in order to fight your insurer and challenge their finding, you would have to sue in Small Claims Court – ie time and money is required on your part.

A recent great case illustrates a fed-up insured, angry at her insurance company, fighting the finding that she was 50/50 responsible for what seems to be a minor and straightforward accident.  See Weihua Shi v. Security National Insurance Co., 2013 ONSC 7377 (CanLII)

The interesting part of this case, for me, is not that the plucky self-represented plaintiff appeared to have presented Supreme Court of Canada caselaw in support of her argument that she was not contributorily negligent for this minor accident.

No, the impressive point was the superb Judgment and dignified patience of Barnes, J. who, in a comprehensive and well-reasoned decision, methodically dealt with the myriad of concerns raised by the parties about this simple car accident.

Judges work hard, even if the dispute is over a few thousand dollars.  This is yet another example of how a patient Judge conclusively decided a matter which hopefully will put the Plaintiff’s mind at ease, after a lengthy legal battle.

In short, the Judge found that the insurer improperly applied the Fault Determination Rules by using a diagram which did not fit this accident.  After considering all the evidence and testimony of the drivers in this accident, however, the Judge found that the correct result was a 50/50 split in liability – coicidentally the result that the insurance company had applied.

In the circumstances, the Court declined to award costs to the winning insurance company, for which the plaintiff ought to be grateful.  Even though this Trial took only one day, the plaintiff easily could have paid more in legal fees and disbursements, since she lost this case, than the damage suffered by both her car and the other car in the accident.

Gregory Chang
Personal Injury and Insurance Lawyer