When you drive across the border into the Great White North, you probably notice that some things are just a bit different. Perhaps you’ll encounter the occasional ‘Stop’ sign that says ‘Arrêt’. When you fill up your tank you’ll count litres instead of gallons. Canadians are renowned for being friendly folk, but apparently we also have a reputation for being a tad more aggressive on the roads. It might surprise you, however, that Ontario’s roads are some of the safest in Canada (and North America), but traffic accidents still occur with regularity. Every year there are tens of thousands of accidents which cause upwards of 50,000 personal injuries or fatalities [ PDF] annually. Accidents involving commercial truck drivers are comparatively few based on total distances travelled, but they still do happen. Recent statistics suggest there are 2.7 crash fatalities and 49 crash injuries per hundred million miles driven by truck drivers.
If you have the misfortune of being involved in one of these accidents on Ontario’s roads – or worse, being seriously injured – what options do you have to receive compensation and support as you begin your recovery? In this article I review some common causes of truck accidents on Ontario’s roads, aspects of Ontario’s accident benefits coverage, considerations for starting a civil lawsuit, government safety regulations, and conclude with some safety tips to help reduce your risk of being involved in a truck-related accident.
Common Causes of Truck Accidents on Ontario’s Roads
Accidents can happen at any time and on any kind of road, but truck drivers should be especially mindful of travelling on highways between 8 a.m. and 4 p.m. on weekdays. Research suggests more than 80% of fatal truck crashes and more than 50% of injury-causing truck accidents occur on highways and despite what you might expect they are more likely during these daylight hours.
Most of these accidents are the result of one of three types of events:
- Leaving a lane or driving off the road completely due to driver fatigue, distracted driving, or improper passing;
- Losing control of the vehicle due to overloading, load shifting or load loss, poor road conditions, excessive speeds, or mechanical malfunction;
- Rear end collisions due to sudden stops, following too closely, or distracted driving.
Some other common causes for truck accidents include:
- Driving under the influence of alcohol, illegal drugs, or prescription medication;
- Attempting an illegal manoeuvre (failing to signal, ignoring signals or signs, or improper lane changes);
- Aggressive or reckless driving that may be a reaction to other drivers or time pressures.
What is Ontario’s Statutory Accident Benefits Schedule (SABS)?
If you’re hurt in a motor vehicle accident in Ontario you will, in most cases, be able to claim statutory accident benefits. The province’s no-fault insurance system covers you whether you are partially, fully or not at all responsible for the accident – the insurance company of one or more of the vehicles involved in the accident must pay certain benefits pursuant to the Schedule.
SABS benefits include:
- income replacement for employed or self-employed persons who can’t work because of the accident (or a non-earner benefit if you were not employed at the time of the accident);
- medical treatment, rehabilitation and attendant care costs not covered by disability insurance plans;
- housekeeping assistance and home maintenance;
- caregiver expenses;
- cost of examinations;
- visitor’s expenses;
- funeral expenses and death benefits, if applicable.
What Are Some Maximum Benefits of SABS?
One of the most potentially important benefits is Medical & Rehabilitation and Attendant Care Benefits, which may provide injured parties with benefits as follows:
- Persons with catastrophic injuries will be entitled to a maximum combined benefit of up to $1,000,000 over their lifetime;
- Persons with non-catastrophic injuries will be entitled to a maximum combined benefit of up to $65,000 over 5 years; or
- Persons with minor injuries will be entitled to a maximum benefit of $3,500.
For more details on accident benefits in Ontario, please review Howie, Sacks & Henry’s Statutory Accident Benefits Summary [PDF] at bit.ly/SABSJune2016.
Can I Get SABS Even Though I Qualify For Worker’s Compensation?
Although statutory accident benefits are available to anyone involved in a motor vehicle accident, even if they were the at-fault driver, there is a significant exception that may impact both foreign and domestic truck drivers.
If you’re injured in a truck accident while driving for employment purposes, and an Ontario resident, usually you must seek benefits through the Workplace Safety & Insurance Board’s (WSIB) program. SABS benefits are generally more generous, so if there appears to be a gray area which would take you out of the WSIB system or allow you to opt out, (e.g. the worker is an independent contractor or is not “on the job” at the time of the accident) often you would try to seek SABS benefits instead. If the accident involves another motor vehicle, you may be able to seek SABS benefits instead, but it will be more difficult if you’re deemed to be covered by workers’ compensation. To pursue SABS, there must have a bona fide reason that takes you out of the WSIB system, or in some cases you elect to pursue a tort claim against the SABS-qualified vehicle. For example, if a SABS-covered driver was at fault in the accident and you are pursuing a civil claim for damages and pain and suffering, you may be able to elect to receive statutory benefits instead of worker’s compensation. Note that if you are a truck driver from outside Ontario, you most likely are entitled to pursue the generous Ontario accident benefits after the accident, instead of lower benefits which might be available under your home state or provincial system of benefits.
Many trucking companies have pushed their drivers to become “independent contractors” to avoid having to pay into workers’ compensation programs. In Ontario, the Workplace Safety and Insurance Appeals Tribunal ultimately determines whether an individual is a covered worker or an independent contractor based on a number of criteria, including: degree of control of employer over the individual, contracts that define the work relationship, the responsibility for route selection, and ownership of equipment, etc. This designation could be critical to you, because as an independent contractor you could qualify for SABS and also could potentially sue an at-fault driver. If there is a contested issue over whether a driver is covered, we can, and have in the past, represented drivers in this coverage dispute.
Should I Consider A Lawsuit In Ontario?
Workers’ compensation programs operate under the principle that a worker injured on the job cannot sue another worker or employer. Workers covered under Schedule 1 of the WSIB such as truckers cannot file a suit against another WSIB-covered driver if the accident occurred while both were working – even if they worked for different employers. (Note: there are still some exceptions here as most government employees even if covered for WSIB are considered under a separate WSIB schedule of covered employees, and therefore the restriction about suing does not apply.)
However, if the accident involved another driver who is not covered by WSIB but who was found at fault, you have two options. You can decide to seek benefits under your own workers’ compensation plan, if you have one, or you can pursue both SABS and a tort claim for damages. In almost all cases you’re likely to end up with a greater total award if you opt to take SABS benefits and utilize the right to sue another at-fault motorist.
Can An American Start a Truck Accident Lawsuit In Canada?
What if you’re an American truck driver involved in an accident while passing through the province of Ontario? Do the same rules apply?
Accident Benefits Claims
If you were not at fault and were injured on the job you may be able to claim workers’ compensation benefits while also pursuing a tort claim (although you will likely not be able to claim duplicate benefits). Even if covered by the Ontario WSIB system, it may be in your interest to attempt to claim SABS in Ontario while suing the at-fault driver here rather than accessing workers’ compensation. As a non-resident of Ontario, you may be able to claim workers’ compensation in your home state or province, and still bring a tort action for other losses, including pain and suffering, against an at-fault motorist or motorists in Ontario.
If an accident occurs in Ontario but the at-fault driver is insured outside of the province, there is a “sufficient connection to Ontario” test the WSIB uses to determine whether these benefits apply. This litmus test may determine your ability to pursue SABS and is often an arguable issue. It is one of the biggest reasons you need to work with a personal injury lawyer who is well-versed in cross-border truck accident disputes.
Truck Inspection and Safety Regulations
To further reduce the risk of accidents involving trucks, Ontario’s Ministry of Transportation employees and police officers enforce safety regulations through on-road inspections and in designated inspection areas just off highways. These inspections assess the key parts and systems of a truck, including tires and wheels, brakes, suspension hydraulic brake system (air brake system), steering columns, electrical components, hitches and couplers, and the power train (engine and axel).
If a vehicle is found to be unsafe, an officer may prohibit it from being driven until repairs are made. Truck drivers and their employers can face fines of up to $20,000 for failing to comply with safety standards and regulations. If a vehicle is found to be “critically defective” (for example, wheel separations or malfunctioning electronic speed limiters), they are impounded for a minimum of 15 days.
Ontario law requires truck operators to inspect their vehicles on a daily basis to find and fix defects which may cause or contribute to an accident. A vehicle’s inspection schedule and a record of any defects identified must always be carried by the truck driver.
Staying Safe: Tips for Truck Driving Safety on Ontario’s Roads
A report by the Traffic Injury Research Foundation titled “Road Safety Bulletin ‘Large Trucks and Road Safety: A Question of Size’” revealed that while large trucks are over-represented in terms of accidents compared to their number on the road, based on the distance they travel their involvement in crashes is actually lower than other vehicles on the road. In fact, most fatal accidents involving large trucks were found to be the fault of drivers of other vehicles.
A number of technological safety improvements, including back-up cameras, crash avoidance systems, and devices that prevent hand-held phone use, have been introduced in bids to keep truck drivers safe. Yet fatigue and, to a lesser degree, driver distraction are two key areas where there is still much room for improvement. Complying with hours of service regulations, taking regularly scheduled breaks for a healthy duration each time, and minimizing actions that take drivers’ eyes off the road all improve safety outcomes for truckers.
Yet, when accidents do happen, the first thing you should do after receiving medical attention is consult a personal injury attorney to review the situation and determine your best course of action. The laws governing workers’ compensation, SABS, tort law, and cross-border law are complex and often intertwined. Personal injury attorneys can help make sense of the legal situation so you can focus on your recovery.
If you or a loved one has been severely injured or someone you know has been killed in a truck-related accident and you have questions about the steps mentioned above, please contact HSH Founding Partner and personal injury lawyer James R. Howie at firstname.lastname@example.org or 416-361-3551. Jim has experience dealing with cross-border truck accidents involving American truck drivers who have accidents in Ontario, and Ontario truck drivers who have had accidents in the US.