What to Do if You Are Injured in an Accident Outside of Canada?

Accidents are stressful in and of themselves, without the additional complexities involved in those that take place outside of the province, or in a foreign jurisdiction. If you have been injured in a car accident, truck accident, boat accident, airport accident, aviation accident, resort accident, slip and fall, or other incident outside of Ontario, it can be overwhelming to figure out whether you are entitled to any compensation, and how best to obtain such compensation.

Claims for accidents which took place in other jurisdictions (i.e. another province or country) involve many complex matters, including questions of where a civil action should be filed, which jurisdictions’ laws should apply, and the challenges of navigating potentially shorter limitation periods within which a claim must be made.

Determining Jurisdiction

It may be possible for an Ontario court to hear a personal injury claim for an accident that occurred outside of the province. However, in order for the court to be able to do so, a two-part test must first be met.

Firstly, the plaintiff (i.e. injured party) must establish the existence of one or more “presumptive connecting factors” that link the subject matter of the action (i.e. the accident) to the province. The Supreme Court of Canada established four “presumptive connecting factors” in Club Resorts Ltd. v. Van Breda:

• The defendant lives in, or is a resident of the province;
• The defendant carries on business in the province;
• The wrongful act was committed in the province; and
• A contract connected with the incident/dispute was made in the province.

Outside of the four “Van Breda” factors, a presumptive connection with Ontario could also be established if the plaintiff could show that his or her damages accrued in the province.

However, even where a presumptive connection to Ontario is established, the second part of the test then considers the doctrine of “forum non conveniens”. This is a legal principle which allows a court to decline to exercise its jurisdiction over a claim on the basis that a court in another jurisdiction is more suitable or convenient.

Under this part of the test, the defendant (i.e. opposing party) may be able to show that a forum other than Ontario is more appropriate and that it would be more efficient and more fair to proceed with the matter there, rather than in Ontario.

An Example

Consider a situation where an Ontario driver is on a road trip to Chicago to watch the Cubs play in the World Series, and is injured in a car accident in Illinois, where the other driver is an Illinois driver. If the injured Ontario driver wishes to file a personal injury claim in Ontario, the first step in the jurisdiction test suggests that the driver would have to establish some sort of connection that the Illinois driver has with Ontario. If the driver was able to show a presumptive connection because his/her damages accrued in Ontario, then Ontario’s procedural law would apply (i.e.- Ontario’s rules of procedure), whereas Illinois substantive law (i.e.- caselaw) would be relied upon in the proceedings.

Thereafter, even if a connection to Ontario can be established, the second part of the test permits the Illinois driver to argue that it would be more expedient to have the claim filed and heard in Illinois.

Other Considerations

Other than finding the most appropriate forum in which to file and proceed with a claim, plaintiffs seeking recovery of damages in an international accident must consider several additional factors.

Insurance Limitations

Unfortunately, many foreign jurisdictions, including many States in the U.S, require that drivers possess only minimal automotive insurance coverage. If you are injured in such a jurisdiction, you may have limited access to insurance coverage and therefore damages payments, even if your injuries are serious. This is something that may ultimately affect your claim.

Limitation Periods

The law in the jurisdiction where the accident occurred is the law which determines who is liable (i.e. at fault) for an accident. That law also determines the time frame in which an action must be commenced, also known as the “limitation period”. The limitation period in Ontario is two years from the date of the accident, meaning that an injured party has two years in which to file a claim. However, limitation periods in other jurisdictions may be much shorter. Where a plaintiff misses a limitation period, he or she may not be able to bring a claim.

Best Practices

If you’ve been injured in an accident outside of Canada, it is important to contact a personal injury lawyer as soon as possible and provide them with details about the location of your accident, the date of your accident, and the identity of anyone involved in the accident and any bystanders who may have witnessed it.

At Derfel Injury Law, we will advise you as to whether you have a claim for damages, outline your options, and counsel you on how best to proceed. Call us at 416-847-3580 to schedule a visit or contact us here.