Ontario Fault Determination Question??

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Dec 8th, 2020 4:23 pm

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Dec 7th, 2020 11:46 pm

MattP28757 [OP]: Newbie; Dec 6, 2020; 1 posts; 1 upvote

Dec 7th, 2020 11:46 pm

Ontario Fault Determination Question??

I was recently in accident, the circumstances at which were as follows: I was driving in the right hand lane going through an intersection at about 50-60km/h when a car in the left hand lane merged without checking his/her blind spot. I hit the breaks, honked and swerved to the right to avoid a collision with the car, hitting a snow bank on the curb. I did about $3500 in damage to my right bumper and grill. The offending car (which did not hit me) slowed down briefly, before driving off.

My assumption was that this car was similar in nature to a hit and run. However, when I went to the collision centre the next day to file the report, the officer informed me that I was 100% at fault for the accident, and that I should have allowed the cars to collide rather than take avoidance action.

In any case, Intact insurance informed me that I would be paying a higher deductible on my insurance, and that my insurance rates would likely go up as a result of the way Ontario determines fault.

My question is if anybody here has had an accident under similar circumstances, and if so, is there anything I can do to overturn this determination or keep my insurance rates from going up?

Thanks

14 replies

Dec 8th, 2020 1:05 am

Phonophoresis: Deal Addict; Oct 3, 2013; 2875 posts; 4367 upvotes; West

Dec 8th, 2020 1:05 am

First off, I know nothing about the legal side of these incidents, and have often wondered how this scenario would play out. Logically though, the way it looks to your insurance is that you just drove into the snowbank yourself, and are making up a cover story to offload blame. The onus now falls on you to prove otherwise in this so called, "phantom vehicle" case. Best case scenario is to have it re-classified as a hit-and-run type accident, but you will most certainly need proof for that.

IMO, your only hope is to try to obtain:

1) Witnesses who can attest you were indeed avoiding an accident
2) Dashcam/video footage
3) Any information that will identify the other driver/vehicle

If it's a busy area, try to post on forums (i.e. RFD, reddit) asking for witnesses/footage. You'd be surprised - some people are able to obtain that from strangers.

Crummy situation. As ridiculous as it is, in these cases, it is truly better to hit the other vehicle for proof's sake... otherwise you're just a liar to everyone who wasn't there. Lessons for next time: get a dash cam, and always try to flag down witnesses if you feel you are going to be involved in a he said/she said situation. It's a shame people rarely stop to help at accident scenes these days.

Good luck!

Dec 8th, 2020 1:27 am

CanadianConsumerYEG: Deal Addict; Aug 30, 2020; 3200 posts; 6109 upvotes; YEG/YYZ

Dec 8th, 2020 1:27 am

If you had dashcam you could have possibly got their plate, make, and model, and possibly been able to pursue a not at fault claim with your insurance

Subjectively, you're not at fault. Yes, you avoided an accident with another vehicle that forced you off the road. If the vehicle didn't change lanes into you forcing you to take evasive maneuvers, you wouldn't have crashed.

Objectively, you were in a single vehicle collision and there is no one to blame but yourself. How is this a "hit and run" when you never got "hit"?

If 2 cars are waiting to make a left turn, and the 2nd car honked at the first to go, and the first car got into an accident, is the 2nd car responsible? I bet the 2nd car would think "what an idiot" and complete the left turn and drive away from the situation completely.

+1

Dec 8th, 2020 8:05 am

Cashforlife: Sr. Member; Jan 29, 2020; 514 posts; 493 upvotes

Dec 8th, 2020 8:05 am

Never swerve! Buy a dash cam.

+1

Dec 8th, 2020 9:42 am

Swerny: Deal Expert; Oct 5, 2008; 17833 posts; 13617 upvotes; Toronto

Dec 8th, 2020 9:42 am

sorry OP, without dashcam or 3rd party witness info to confirm your story you are SOL.

Dec 8th, 2020 10:02 am

Ecsta: Deal Addict; Jan 17, 2009; 4464 posts; 4985 upvotes; Toronto, Ontario

Dec 8th, 2020 10:02 am

Honestly without seeing dash cam footage it could just as easily be an over-reaction on your part. Even with video footage the other driver would probably not be found at fault anyways, since he never hit you, so don't stress over it and take it as a life lesson.. In the future brake and move over as far as you can without damaging your car, and dont go further unless its to avoid a pedestrian.

Also get a dash cam.

Dec 8th, 2020 12:16 pm

COSMIC5: Deal Fanatic; Aug 11, 2008; 9473 posts; 1427 upvotes; Ontario

Dec 8th, 2020 12:16 pm

Unfortunately, you collided with another object; therefore, will be 100% at fault. Why would you pay a higher deductible in this case? You are only required to pay your collision deductible for an at fault accident.

RIBO LICENCED INSURANCE BROKER, over 35 years experience

Dec 8th, 2020 1:00 pm

Phonophoresis: Deal Addict; Oct 3, 2013; 2875 posts; 4367 upvotes; West

Dec 8th, 2020 1:00 pm

CanadianConsumerYEG wrote: ↑If you had dashcam you could have possibly got their plate, make, and model, and possibly been able to pursue a not at fault claim with your insurance

Subjectively, you're not at fault. Yes, you avoided an accident with another vehicle that forced you off the road. If the vehicle didn't change lanes into you forcing you to take evasive maneuvers, you wouldn't have crashed.

Objectively, you were in a single vehicle collision and there is no one to blame but yourself. How is this a "hit and run" when you never got "hit"?

If 2 cars are waiting to make a left turn, and the 2nd car honked at the first to go, and the first car got into an accident, is the 2nd car responsible? I bet the 2nd car would think "what an idiot" and complete the left turn and drive away from the situation completely.

That is a terrible example. The OP was attempting to avoid a car accident, so he/she claims. Initiating a car accident because someone honked at you is not even remotely close to the same scenario. See below.

Ecsta wrote: ↑Honestly without seeing dash cam footage it could just as easily be an over-reaction on your part. Even with video footage the other driver would probably not be found at fault anyways, since he never hit you, so don't stress over it and take it as a life lesson.. In the future brake and move over as far as you can without damaging your car, and dont go further unless its to avoid a pedestrian.

Also get a dash cam.

These accidents CAN be classified as a hit & run-like accident, or more specifically a "phantom vehicle"/no-contact car accident, depending on the insurance companies procedures. You guys are joking if you think that avoidance of an accident in an attempt to spare injury/lives/damage must always put you at 100% fault. Partially, maybe, depending on the scenario. The only reason the OP is at 100% fault, is because he/she has no proof to back up his/her claims, and the other driver cannot be located. For all we know, and all the insurance company knows, this is a made up story, and they need to treat it as such, else there would be endless abuse.

In order to have the slightest chance of getting a reduction in fault considered, the OP would need video or eyewitness testimony that backs up their claims, and ideally to identify the other vehicle.

Dec 8th, 2020 1:45 pm

chimaican: Deal Expert; Oct 23, 2008; 18584 posts; 16989 upvotes; GTA, ON

Dec 8th, 2020 1:45 pm

Lesson of the day folks: GET A DASH CAM!!!

I honestly don't know how many of these threads there are where this advice that has been given and yet we still have posters asking for help where a dash cam could have saved the day. We have countless threads here about dash cams. Just please get a dash cam.

Tis banana is IRIE 😎

10% off is cold, 50% off is warm, 75% off is hot, but FREE IS RFD!

Dec 8th, 2020 1:53 pm

CanadianLurker: Deal Fanatic; Sep 9, 2012; 6725 posts; 5805 upvotes; Oakville, ON

Dec 8th, 2020 1:53 pm

Phonophoresis wrote: ↑ That is a terrible example. The OP was attempting to avoid a car accident, so he/she claims. Initiating a car accident because someone honked at you is not even remotely close to the same scenario. See below.

These accidents CAN be classified as a hit & run-like accident, or more specifically a "phantom vehicle"/no-contact car accident, depending on the insurance companies procedures. You guys are joking if you think that avoidance of an accident in an attempt to spare injury/lives/damage must always put you at 100% fault. Partially, maybe, depending on the scenario. The only reason the OP is at 100% fault, is because he/she has no proof to back up his/her claims, and the other driver cannot be located. For all we know, and all the insurance company knows, this is a made up story, and they need to treat it as such, else there would be endless abuse.

In order to have the slightest chance of getting a reduction in fault considered, the OP would need video or eyewitness testimony that backs up their claims, and ideally to identify the other vehicle.

The OP is in Ontario so the Ontario Fault Determination Rules apply. OP will be 100% at fault for a single vehicle collision/incident. There is no rule that reduces fault due to the actions of other vehicles. If you can find a rule that says so then please feel free to point out which rule would apply. Copy of the rules for reference:

http://www.minkinsurance.com/Mink/media ... -CHART.PDF

It sucks, but it is what it is in Ontario.

Dec 8th, 2020 1:54 pm

Ecsta: Deal Addict; Jan 17, 2009; 4464 posts; 4985 upvotes; Toronto, Ontario

Dec 8th, 2020 1:54 pm

Phonophoresis wrote: ↑ That is a terrible example. The OP was attempting to avoid a car accident, so he/she claims. Initiating a car accident because someone honked at you is not even remotely close to the same scenario. See below.

These accidents CAN be classified as a hit & run-like accident, or more specifically a "phantom vehicle"/no-contact car accident, depending on the insurance companies procedures. You guys are joking if you think that avoidance of an accident in an attempt to spare injury/lives/damage must always put you at 100% fault. Partially, maybe, depending on the scenario. The only reason the OP is at 100% fault, is because he/she has no proof to back up his/her claims, and the other driver cannot be located. For all we know, and all the insurance company knows, this is a made up story, and they need to treat it as such, else there would be endless abuse.

In order to have the slightest chance of getting a reduction in fault considered, the OP would need video or eyewitness testimony that backs up their claims, and ideally to identify the other vehicle.

Without seeing a video of the incident we're all just speculating about what may have happened anyways. It really highlights the importance of a dash cam, as fault can swing from 100% against OP to 0% with just a 10 second video.

Honestly though it's a very common mistake inexperienced drivers make when avoiding a hazard to do an overreaction and lose control, so you can't really be surprised at RFD for assuming OP is between partially to completely at fault lol.

Dec 8th, 2020 2:11 pm

Phonophoresis: Deal Addict; Oct 3, 2013; 2875 posts; 4367 upvotes; West

Dec 8th, 2020 2:11 pm

CanadianLurker wrote: ↑ The OP is in Ontario so the Ontario Fault Determination Rules apply. OP will be 100% at fault for a single vehicle collision/incident. There is no rule that reduces fault due to the actions of other vehicles. If you can find a rule that says so then please feel free to point out which rule would apply. Copy of the rules for reference:

http://www.minkinsurance.com/Mink/media ... -CHART.PDF

It sucks, but it is what it is in Ontario.

I just skimmed the rules very briefly - I didn't see any section that outlines a scenario with a single vehicle accident. It appears that if the scenario is not outlined in that document, then none of it applies. Correct me if I'm wrong, please.

IF the OP is able to get proof, they would be able to pursue under the following sections:

5. (1) If an incident is not described in any of these rules, the degree of fault of the insured shall be determined in accordance with the ordinary rules of law.

So by my logic, which may/may not be correct, if there's footage, the other driver can be found negligent via way of unsafe lane change, which cab then factor into the fault determination.

At the end of the day, the "phantom vehicle" scenario is unfortunately quite common. I don't know what the rules are in ON, but given how widespread it is, I would hope there are legal channels to pursue this type of incident... which of course, requires proof. Else, next time I cause an accident without my car hitting the other party(ies), I'm flooring it out of there.

Dec 8th, 2020 2:20 pm

CanadianLurker: Deal Fanatic; Sep 9, 2012; 6725 posts; 5805 upvotes; Oakville, ON

Dec 8th, 2020 2:20 pm

Phonophoresis wrote: ↑ I just skimmed the rules very briefly - I didn't see any section that outlines a scenario with a single vehicle accident. It appears that if the scenario is not outlined in that document, then none of it applies. Correct me if I'm wrong, please.

IF the OP is able to get proof, they would be able to pursue under the following sections:

So by my logic, which may/may not be correct, if there's footage, the other driver can be found negligent via way of unsafe lane change, which will factor into the fault determination.

OP has no such evidence though or it would have presumably been noted in the OP. Hence why the cop and insurance company have opined that it is 100% OP's fault.

Dec 8th, 2020 2:29 pm

Phonophoresis: Deal Addict; Oct 3, 2013; 2875 posts; 4367 upvotes; West

Dec 8th, 2020 2:29 pm

CanadianLurker wrote: ↑ OP has no such evidence though or it would have presumably been noted in the OP. Hence why the cop and insurance company have opined that it is 100% OP's fault.

Yes, we've all already established and understand the part he/she has no evidence. We've also all agreed that unless the OP has proof, they are 100% at fault, as unfair as the situation may be. These are undisputed, and have been agreed upon multiple times, now, in fact.

The current discussion is revolving around whether the OP's question if there's anything they can do to get their claim re-adjudicated; namely, would the OP have a leg to stand on if he/she was able to procure proof or eyewitness testimony that can objectively detail the incident, and identify the other driver. I'm arguing they could make a case for themselves if that were obtainable. On the other hand, you (and others), are saying it doesn't matter, as in single vehicle accident, even if you were able to obtain proof you were run off the road & able to identify said driver, you must 100% be at fault.

The article you posted are for fault determinations for collisions between vehicles, which does not seem to apply in this situation. I suppose, though, insurance is very black & white, and logic doesn't always prevail. Perhaps this is something that would have to be pursued legally, instead of via insurance.

Edit: Here is a RFD thread of a similar circumstance, from ON. The driver who avoided the collision (but ended up hitting a pole in the process) was found to be 0% at fault. Thus, if there is enough evidence of another driver's negligence, there's certainly a chance of the OP's fault determination being reduced.

avoided-collision-but-insurance-finds-m ... 1124694/4/

Dec 8th, 2020 4:23 pm

CanadianLurker: Deal Fanatic; Sep 9, 2012; 6725 posts; 5805 upvotes; Oakville, ON

Dec 8th, 2020 4:23 pm

Phonophoresis wrote: ↑ Yes, we've all already established and understand the part he/she has no evidence. We've also all agreed that unless the OP has proof, they are 100% at fault, as unfair as the situation may be. These are undisputed, and have been agreed upon multiple times, now, in fact.

The current discussion is revolving around whether the OP's question if there's anything they can do to get their claim re-adjudicated; namely, would the OP have a leg to stand on if he/she was able to procure proof or eyewitness testimony that can objectively detail the incident, and identify the other driver. I'm arguing they could make a case for themselves if that were obtainable. On the other hand, you (and others), are saying it doesn't matter, as in single vehicle accident, even if you were able to obtain proof you were run off the road & able to identify said driver, you must 100% be at fault.

The article you posted are for fault determinations for collisions between vehicles, which does not seem to apply in this situation. I suppose, though, insurance is very black & white, and logic doesn't always prevail. Perhaps this is something that would have to be pursued legally, instead of via insurance.

Edit: Here is a RFD thread of a similar circumstance, from ON. The driver who avoided the collision (but ended up hitting a pole in the process) was found to be 0% at fault. Thus, if there is enough evidence of another driver's negligence, there's certainly a chance of the OP's fault determination being reduced.

avoided-collision-but-insurance-finds-m ... 1124694/4/

Yes, it’s possible and it happens from time to time but it requires compelling evidence. There was one a few months ago with dashcam footage showing somebody hitting other vehicles to avoid t-boning a left turner turning into their way. It requires solid and compelling evidence with the onus on you to prove what happened which is a high bar to overcome without video and/or credible independent witnesses to corroborate the case.

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