What a tort claim actually is
Ontario runs a hybrid auto insurance system. After a crash, your own insurer pays accident benefits regardless of fault — medical, rehab, income replacement, attendant care. Those benefits are capped and rule-bound. The tort claim is the other track: a civil lawsuit against the at-fault driver (really, their insurer) for everything those benefits do not cover.
In practice, a tort claim seeks general damages for pain and suffering, plus pecuniary damages like income loss above the accident benefits cap, future care costs, housekeeping, and out-of-pocket expenses. It is a separate proceeding from your accident benefits claim, governed by the Insurance Act and decided in the Superior Court of Justice — not at the Licence Appeal Tribunal, which handles benefits disputes.
You can run both tracks at the same time, and most seriously injured claimants do. The accident benefits file pays as you go; the tort file settles years later, usually after the medical picture has stabilized.
The threshold and the deductible nobody mentions
Ontario does not let you sue for any soft-tissue injury. To recover general damages (pain and suffering) in a motor vehicle tort claim, you must clear the statutory threshold: a permanent serious impairment of an important physical, mental, or psychological function, or death. This is set out in section 267.5 of the Insurance Act and Ontario Regulation 461/96. Threshold motions are decided by a judge, often after trial.
Even if you clear the threshold, a statutory deductible is subtracted from your general damages award. The Insurance Act sets the deductible and indexes it annually — the figure is large enough that smaller pain-and-suffering awards get wiped out entirely, which is exactly the policy intent. The deductible does not apply if the award exceeds a separate indexed monetary threshold, and it does not apply to pecuniary damages like income loss or future care.
Juries are not told about the deductible. That detail surprises plaintiffs who hear a number read out in court and then see a smaller cheque. Your lawyer should walk you through the math before you accept any offer.
Tort versus accident benefits — and how they interact
Accident benefits (the SABS) and a tort claim cover different things and are paid by different insurers. Benefits flow from your own policy under a no-fault framework; the tort award comes from the at-fault driver's liability coverage. You are not double-recovering — Ontario uses a set-off regime so amounts received or receivable as accident benefits are deducted from the tort award for the same heads of loss.
That set-off is why the choice of accident benefits options on your own policy matters for your tort case. If you opted up your income replacement benefit, you collect more from your own insurer and recover less in tort for past wage loss. If you stayed at the standard limits, the gap above SABS is where the tort claim does its real work.
The Minor Injury Guideline caps treatment at $3,500 for injuries that fall within its definition. That cap is a SABS rule, not a tort rule — but a defendant will often argue your injuries are minor as a way of suggesting you cannot clear the tort threshold either. The two systems talk to each other constantly.
What the 2026 Ontario auto reform changes
The reform package taking effect July 1, 2026 reshapes the accident benefits side more than the tort side, but the knock-on effects matter. Several benefits that were previously mandatory become optional, and direct compensation property damage coverage shifts. If drivers opt out of benefits to save premium, the gap that has to be made up through a tort claim grows — assuming the at-fault driver carries enough liability coverage to pay it.
Nothing in the reform repeals the threshold or the deductible on general damages. The Insurance Act framework that defines who can sue, for what, and after which subtraction is unchanged. What changes is the arithmetic underneath: a claimant who waived optional benefits will have less coming in from their own insurer and more theoretically recoverable from the defendant.
FSRA has signalled it will republish consumer materials closer to the in-force date. Track the official FSRA bulletins rather than secondary commentary — the rules around what is mandatory versus optional are exactly the kind of detail that gets misreported in the run-up to a reform.
What a tort claim looks like in practice
Most tort claims settle. The path is roughly: retainer with a personal injury lawyer (almost always on contingency), statement of claim filed within the two-year limitation period under the Limitations Act, examinations for discovery, defence medical examinations, mediation, and then either settlement or trial. Two to four years from crash to resolution is typical; catastrophic impairment files run longer.
Costs come off the top. Contingency percentages, disbursements (medical reports, expert fees, court costs), and HST all reduce the net to the client. Ontario requires contingency fee agreements to be in writing and to disclose how costs are calculated; ask for a worked example on a hypothetical settlement before you sign.
If the at-fault driver was uninsured, underinsured, or unidentified, the tort claim does not disappear — it shifts. Uninsured motorist coverage and the OPCF 44R family respond in different ways depending on the fact pattern. That is a separate conversation with counsel, not a DIY exercise.
When a tort claim is worth pursuing
If your injuries are genuinely soft-tissue and resolve within the MIG framework, a tort claim is unlikely to clear the threshold and the deductible will eat any modest pain-and-suffering award. Lawyers will usually decline these files on contingency, which is itself a useful signal.
If you have ongoing functional impairment — you cannot return to your pre-accident job, you need long-term care, your earning capacity is permanently reduced — the tort claim is where most of the meaningful recovery happens, because accident benefits caps are not designed to make a seriously injured person whole. The pecuniary heads of damage (income loss, future care, housekeeping) are not subject to the general-damages deductible and often dwarf the pain-and-suffering portion.
The honest summary: accident benefits are the floor, tort is the ceiling, and the threshold plus deductible exist specifically to keep minor cases out of the courts. Whether your case is closer to the floor or the ceiling is a medical question first and a legal one second.
Frequently asked
Can I sue for pain and suffering after any Ontario car accident?
No. Ontario's Insurance Act requires you to clear a verbal threshold — a permanent serious impairment of an important physical, mental, or psychological function, or death — before you can recover general damages from the at-fault driver. Pecuniary losses like income loss above SABS limits are not threshold-gated, but the pain-and-suffering portion is.
What is the deductible on a tort claim and when does it apply?
The Insurance Act imposes a statutory deductible on general damages awards in motor vehicle tort claims, indexed annually. It is subtracted before you are paid and the jury is not told about it. The deductible drops away if the award exceeds a separate indexed monetary threshold, and it does not apply to pecuniary damages. The current figures are published by the Ministry of Finance — check the year you settle, not the year of the crash.
Do I still get accident benefits if I sue the at-fault driver?
Yes. The two claims run in parallel. Your own insurer pays accident benefits under the SABS regardless of fault, and you separately pursue the at-fault driver's insurer for amounts beyond what benefits cover. Amounts received as accident benefits are set off against the tort award for the same heads of loss, so you are not double-paid — but you do not have to choose one or the other.
How long do I have to start a tort claim in Ontario?
Two years from the date of the accident, under the Limitations Act, 2002. There are narrow extensions for discoverability and for minors, but treating the two-year date as a hard deadline is the safe assumption. Notice requirements to the defendant's insurer and to your own insurer can be shorter — usually 120 days for written notice of the tort claim — so do not wait until month 23 to call a lawyer.