In Ontario, being partially at fault does not ruin your injury claim. Under the Negligence Act, the concept of contributory negligence applies. If you are found 25% responsible for the accident, your final compensation is simply reduced by 25%.
Accidents are rarely completely black and white. Sometimes, both parties share the blame for a collision or a slip and fall. If you were injured in Ottawa but made a mistake that contributed to your own harm, you might worry that you are legally barred from seeking compensation.
Fortunately, Ontario follows a very fair legal doctrine regarding shared blame. 📍 Unlike some jurisdictions that completely block your claim if you are even 1% at fault, Canadian courts use a proportional system. This ensures that you can still hold the primary wrongdoer accountable, even if your own compensation is slightly reduced.
Step-by-Step Process of Handling Shared Fault in Ottawa
Whether you were hit by a car while jaywalking in downtown Ottawa or slipped on an icy step in Barrhaven because you were running, insurance companies will fiercely try to shift the blame onto you. Here is how your personal injury lawyer will handle the process.
Step 1: The Defendant Raises the Defence
When your law firm files a Statement of Claim at the Superior Court of Justice, the at-fault party’s insurance company will file a Statement of Defence. They will formally plead “contributory negligence,” arguing that your actions (like speeding or not wearing a seatbelt) made your injuries worse.
Step 2: Gathering Evidence
Your lawyer must now investigate not just the defendant’s actions, but your own. 🔍 They will review Ottawa Police Service collision reports, consult accident reconstruction engineers, and review medical records. The goal is to minimize your percentage of fault and prove the defendant was the primary cause.
Step 3: Settlement Negotiations
During mediation, both sides will argue over the fault split. For instance, if your total damages are calculated at $100,000 CAD, but you agree you were 20% at fault for texting while walking, your lawyer will negotiate to secure the remaining $80,000 CAD from the insurer.
Step 4: Trial and Judicial Apportionment
If a fair settlement cannot be reached, the case goes to trial. ⚔️ A judge or jury in Ottawa will hear all the evidence and assign an exact percentage of fault to each party under the Negligence Act. The judge then issues a binding court order for the proportionally reduced payout.
How Much Does it Cost to Fight a Shared Fault Case?
Fighting allegations of contributory negligence often requires extra expert testimony, which can influence the upfront disbursements of your case.
| Legal / Expert Expense | Estimated Cost (CAD) |
|---|---|
| Lawyer Contingency Fee | 25% – 33% of final reduced award |
| Accident Reconstruction Expert | $3,000 – $10,000+ |
| Biomechanics Expert (Seatbelt use) | $4,000 – $8,000+ |
| Court Filing Fees | Covered by lawyer’s disbursements |
- Expert Witnesses: If the insurer claims you were not wearing a seatbelt, your lawyer may need to hire a biomechanics expert to prove the seatbelt would not have prevented the specific injury you suffered, thereby defeating the shared fault argument.
- No Upfront Costs: Because most personal injury law firms work on contingency, you will not have to pay these expensive expert fees out of your own pocket while you are recovering.
How Long Does the Process Take?
Contesting shared fault adds complexity to a case. ⏱ A straightforward injury claim might settle in 1 to 2 years, but if liability is heavily disputed, the discovery process and negotiations can stretch the timeline to 2 to 4 years before reaching a final resolution in the Ontario court system.
Frequently Asked Questions (FAQ)
What is the “seatbelt defence” in Ontario?
The seatbelt defence is a common form of contributory negligence. If you are in a car crash and the insurer proves you were not wearing a seatbelt, Ontario courts generally reduce your compensation for your injuries by up to 25%, as you failed to mitigate your own risk.
Can I still get Statutory Accident Benefits (SABS) if I am 100% at fault?
Yes! Ontario has a “no-fault” auto insurance system for basic medical and rehabilitation benefits. Regardless of who caused the crash in Ottawa, your own auto insurer must provide you with SABS to help cover physiotherapy and lost income.
What happens if I slip on ice but I was wearing improper footwear?
If you were wearing smooth-soled dress shoes in a February snowstorm in Ottawa, the property owner’s defence lawyer will argue contributory negligence. Your payout may be reduced, but the owner is still liable for failing to salt or clear the walkway.
Who decides the exact percentage of my fault?
In most cases, your lawyer and the insurance adjuster agree on a percentage during out-of-court settlement negotiations. If they cannot agree, a judge or jury at the Superior Court of Justice will make the final, binding decision.
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