With the arrival of spring weather, Ottawa’s cyclists are out in force. Ottawa is a great city for cycling. We have over 600 km of bike paths in the Capital Region. However, not everyone can get to where they want to go without resorting to cycling on city streets. Cyclists, just like drivers, must obey the rules of the road, including signalling, obeying traffic signals, and not riding on the sidewalk or in pedestrian crosswalks. Even when obeying all the rules of the road, cyclists run the risk of being struck by a motor vehicle. What legal rights does a cyclist have if they are injured in a collision with a motor vehicle?
The circumstances surrounding each and every car/bike collision are unique. However, generally speaking, when a cyclist is struck and injured by a car, they can receive financial compensation from one of the following sources:
· The insurance of any car involved in the crash;
· The cyclist’s own car insurance, or the car insurance of their spouse, or someone on whom they are dependent; or
· The Ontario Motor Vehicle Accident Claims Fund (“The Fund”).
A legal claim for compensation
If a cyclist is struck and injured by a vehicle, they can sue the driver and owner of the vehicle for compensation in the form of monetary damages. A person bringing a lawsuit usually has the onus to establish that the person they are suing was negligent. However, a cyclist is considered a pedestrian under the Highway Traffic Act and therefore a “reverse onus” applies. This means that the driver of the car must prove that the collision “did not arise through (their) negligence or improper conduct”. This reverse onus gives the cyclist an important legal advantage when suing for compensation.
Automobile insurance is mandatory in Ontario and this means that, if a cyclist sues a driver, the driver’s insurance company will pay any damages awarded by the court up to the policy limits, which are a minimum of $200,000 in Ontario and are usually $1 million or more. Should the at-fault driver be uninsured, or if it is not possible to identify the at-fault driver, then the injured cyclist’s damages are paid by their own auto insurance company or that of their spouse (if the policy includes a Family Protection Coverage OPCF – 44R Endorsement, which is quite common).
If the injured cyclist does not have access to personal or family insurance, then the Ontario Government pays the damages through the Ontario Motor Vehicle Accident Claims Fund. Unfortunately, coverage from The Fund is only available to a maximum of $200,000.
“No-Fault” Benefits
No-fault benefits are part of every motor vehicle insurance policy issued in Ontario. They are available to everyone who is injured in a collision with a car no matter who is at fault. This means that an injured cyclist has access to no-fault benefits even if they are responsible for causing the accident. The benefits include income replacement, payment of medical and rehabilitation expenses, the cost of attendant care and, if optional benefits are included, such things as home maintenance.
If the cyclist has their own insurance then they collect these benefits from their insurer. If the cyclist does not have car insurance, they may be able to collect from another policy on which they are listed as a driver, or their spouse’s policy. If these policies do not exist then the cyclist makes a claim against the insurance policy of the involved motor vehicle. If the involved vehicle is unidentified or uninsured then, once again, the claim is against the Ontario Motor Vehicle Accident Claims Fund.
Conclusion
A motorist who is injured in a collision can look to their own insurance policy for some forms of compensation. Because cyclists do not have to be insured, they may need to look to other sources of insurance for access to no-fault benefits.
This blog post was written by Edward (Ted) Masters, a member of the Personal Injury team. He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.
