Can you sue your auto insurance company?

Let’s say you get into a car accident.

Tens of thousands of Canadians are involved in one each year, according to Transport Canada data. Perhaps your car smashes into an SUV that drifted into your lane. After a stay in the ER, you find out your arm is shattered. You’ll need months of rehabilitation to fully recover.

Fast-forward several months – and your auto insurance company is refusing to cover the full amount of your physiotherapy. You’ve called and emailed more times than you can count, but it won’t pay up. What happens next? Can you sue?

Why you might decide to sue

Suing your own auto insurance provider is rare, but there are a couple of reasons it may happen. 

Perhaps your insurance company doesn’t cover all of the physical rehabilitation you need after an accident. Maybe your insurance company denies you coverage because it believes you were involved in a crime at the time of the accident. Or maybe the other person involved in the collision wasn’t properly insured, forcing your auto insurance company to foot the entire bill. 

Allen Wynperle, an Ontario lawyer who handles auto insurance cases, says your own insurance company will defend a claim if you get into an accident with someone who isn’t insured or can’t be identified. You’re still entitled to accident benefits, but obviously can’t pursue a settlement against anyone except your insurer. “That’s another situation when you might sue your own insurance company,” says Wynperle. “Even though your insurance company has done nothing wrong.”

There’s also the possibility of suing your auto insurance company for denying you coverage because of the circumstances behind a collision. While you might expect your auto insurance company to back you up, Wynperle says there are occasions where they might backtrack, like if you committed a crime during the course of the accident, though he says that’s “pretty rare.”

In fact, Wynperle says it’s quite rare for an auto insurance company to refuse to cover you at all. 

In other jurisdictions, such as Alberta and Saskatchewan, it is possible to sue your own insurance company for accident benefits without going through a tribunal

There might, however, be an issue with how comprehensively it covers you. For example, in November 2018, a team of lawyers representing 15 people filed claims against some of Ontario’s biggest insurers, such as Aviva, Intact, Belair, and Allstate, which allege that these (and other) insurers had been short-changing auto accident victims for years. The companies allegedly didn’t pay or reimburse HST on accident benefits in some cases while including it in the calculation of others. (None of the allegations have been proven in court.) 

The insurance companies are arguing that the matter must be settled at the Licence Appeal Tribunal’s Automobile Accident Benefits Service (LAT-AABS), not via the provincial court system.

Paul Harte, an Ontario medical malpractice lawyer on the claimants’ legal team, says the LAT-AABS isn’t worthwhile for many clients. While it only costs $100 to file an application, Harte says the vast majority of claims are for very small sums of cash – no more than $150. 

“You have a situation where you effectively have no access to justice,” he says.

Location, location, location

Whether or not you can sue your own insurance company largely depends on where the collision took place. In a nutshell: Manitoba, Saskatchewan, and British Columbia all use public auto insurance run by the government (Quebec uses public insurance for bodily injury claims, and private for vehicle damage). 

The rest of the provinces use private insurance markets that require varying degrees of mandatory minimum coverage. Ontario, for instance, requires drivers to carry accident benefits coverage and a minimum of $200,000 in third-party liability, while in Newfoundland and Labrador, insurance that provides medical payments is actually optional. In Ontario, British Columbia, Quebec, and Manitoba, you’re required to file an application to one of several quasi-independent legal tribunals responsible for settling accident benefits disputes. These tribunals were created in order to streamline the justice process without the need for lawyers. In the other provinces, you either request arbitration with your insurance company or head straight to the courts. 

Up until 2016, Ontario allowed claimants to either sue their auto insurance companies in provincial court or take their case to the Financial Services Commission of Ontario

Usually, the tribunal will ask you to bring documentation proving your case to a hearing where you’ll discuss how to proceed. A webpage for LAT-AABS advises claimants to settle with their insurance company – or seek mediation – before filing an application to the tribunal. Crucially, it only handles disagreements involving a person’s entitlement to accident benefits or the amount of benefits they’re owed. 

However, in other jurisdictions, such as Alberta and Saskatchewan, it is possible to sue your own insurance company for accident benefits without going through a tribunal. An information brochure for Saskatchewan Government Insurance, the province’s public insurer, says claimants who don’t agree with its decision on entitlement benefits or at-fault determination “have access to the courts to resolve the matter.” Alberta uses what’s known as a tort system – meaning an insurance company is required to pay out a certain amount to the policy owner, and then claimants can go after each other’s insurance providers in court.

Ontario’s tribunal troubles

Up until 2016, Ontario allowed claimants to either sue their auto insurance companies in provincial court or take their case to the Financial Services Commission of Ontario, which used to regulate the province’s various insurance companies for arbitration. (This responsibility has since been handed over to the Financial Services Regulatory Authority of Ontario). 

Wynperle went for the latter option about 95% of the time. The arbitrators he dealt with were professional, he says, and capable of quickly handling cases in a very specialized area of the law. But in 2016, Ontario decided to “blow it up completely” for injury claims. 

Wynperle is talking about the LAT-AABS. Anyone seeking an accident benefits claim must go through this tribunal. One of its perks? “You don’t need to go through the expense of hiring a representative,” says Pete Karageorgos, the Insurance Bureau of Canada’s director of consumer and industry relations. The tribunal handles disputes between claimants and auto insurance companies related to accident benefit entitlements and the amount owed – nothing else. It’ll hear your case so long as you pay the $100 filing fee and apply within two years of your insurance company’s denial. 

But Wynperle says claimants often need representation to navigate the complex proceedings at the LAT-AABS. (Besides, he says, the insurance company always brings one). “If they don’t get a lawyer who can help them get the right medical evidence marshalled to prove their case, there is very little chance that they’re going to succeed,” Wynperle says. 

He also says the LAT-AABS doesn’t necessarily speed up justice. Instead, Wynperle believes it adds another barrier to claimants who may be incapacitated and unable to work. “We have created an incredibly complex system, which is quite expensive to navigate and time consuming and takes a lot of expertise,” he says. “We have not created a user-friendly system.”