In this post, we explain the usual courses of action you would take to obtain benefits and damages if you were involved in a motor vehicle accident, and why the existence of the Motor Vehicle Accident Claims Fund (MVACF) ensures that when all else fails, you still have a place to turn to access assistance in your recovery, but it will take time to get there.
Priority of Payments
If you’ve been injured in a motor vehicle accident, regardless of who is at fault, there is a priority list of insurers to which you would normally turn to seek recovery under the Statutory Accident Benefits Schedule (SABS). First, if you have automobile/car accident insurance, you would contact your own provider. If you are without insurance but were an occupant in a vehicle involved in the accident, you would then seek benefits from the insurer of that vehicle. If neither of these options were available to you (for instance, if you were an uninsured cyclist or pedestrian), you would then seek recovery from the insurer of any automobile involved in the accident.
In Ontario, by law, all motor vehicles in operation on roadways must have insurance coverage that pays out SABS. Under section 265 of Ontario’s Insurance Act, this coverage must also extend to uninsured motorists or others without recourse to insurance who are eligible to make a claim.
In theory, if a motor vehicle accident occurs involving at least one automobile, there should always be an insurer to which you, as an accident victim, could make a claim. If, however, the car(s) involved are uninsured you have to look to other sources for coverage.
What is the MVACF, Who Qualifies, and When Would it be Used?
The MVACF is the payer of last resort on the priority list and is only available when no claim can be brought against another automobile insurance provider. Set up by the Ontario government and managed by the Financial Services Commission of Ontario (FSCO), the MVACF:
- Provides statutory benefits to claimants without recourse to other automobile insurance;
- Provides compensation for personal injuries and property damage for victims of accidents where there is an unidentified driver, an uninsured driver, or a stolen vehicle with no liability insurance; and/or
- Attempts to recover money paid out on behalf of owners and drivers of uninsured vehicles from these people when legally possible.
The MVACF only applies to accidents that occur in Ontario and can only be drawn upon by residents of the province. Most claims brought to the MVACF are the result of hit-and-runs where an uninsured pedestrian or cyclist is not able to identify an insured motor vehicle involved in the accident, but there are also cases involving uninsured and/or stolen vehicles.
The Long and Winding Road to a MVACF Payment
While determining if the MVACF is your last recourse to access SABS is generally straightforward, if you wanted to bring a tort claim against an uninsured or unidentified at-fault driver and needed to draw upon the MVACF to receive damages, the process becomes much more arduous and difficult.
To make a tort under from the MVACF, the accident victim/claimant must first make every effort to identify the at-fault (unidentified) driver. If the driver has been identified, however, proof of no insurance is required. In either case, an accident victim/claimant must commence an action and obtain judgement before MVACF will consider paying the claim.
For example, if an accident victim’s family member (who resides in the same household) has an insurance policy that includes a Family Protection Endorsement, that insurance company would be responsible to respond to a claim of negligence against an uninsured or underinsured driver, absolving the MVACF of responsibility.
Patience may be a truly virtuous path, but it certainly isn’t an easy one. In the face of a long, tedious and complicated process, such as navigating Ontario’s Motor Vehicle Accident Claims Fund (MVACF), there is often great temptation to grow frustrated or angry over the uncertainty and delays you are likely to experience. But as you preserver, remember that all other options must be exhausted before you reach your last resort.