Claimants should know about key differences between Ontario and Quebec law that change how they deal with a personal injury in each province.
Location, location, location.
Location is vitally important. It determines your residential property value and the success or failure of your business. It’s also a key factor in how to deal with your personal injury claim, whether as the result of a car crash, medical malpractice, or slip and fall. Whereas criminal law is governed by federal laws, injury law is governed by provincial laws. Clear differences exist between Ontario law and Quebec law. Knowing these differences allows the injured claimant to maximize recovery and compensation.
Common Law vs. Civil Law
Ontario operates under the common law system, which is a legal framework heavily steeped in case law or judicial precedent (stare decisis). The common law system is not based on a definitive, comprehensive collection of legal rules and statutes. Instead, in Ontario, principles evolve through judicial decisions, which judges then interpret for each case before them. It’s a dynamic and adaptable system that reflects societal changes over time. Some people refer to the common law as ‘judge-made’ law.
On the other side of the border, Quebec follows the Quebec Civil Code, which falls under the civil law tradition. Unlike common law, civil law is codified, meaning the legal rules and principles are all written in legal codes. In this system, the laws are not based on judicial decisions but rather on detailed, written legislation. While judicial processes are important, they are not binding precedents the way they are in common law jurisdictions. The civil code sets the binding precedent, and the role of judges is to apply the codes to the unique case.
These differences between the two legal systems are essential to understand any legal case, especially about personal injury. In Ontario’s common law system, judicial decisions on personal injury cases create precedents that inform future cases. This case-based approach allows for flexibility as courts can adapt to evolving societal values and new types of personal injuries. However, it can also lead to unpredictability, as courts may interpret similar facts differently. In contrast, Quebec’s civil law system provides clear guidance on personal injury matters such as fault assessment, damages calculation, and victims’ rights. But while this codified system brings a degree of certainty, it lacks the adaptability of common law, making it difficult for those used to the Ontario system and vice versa.
SABS vs. SAAQ
In Canada, motor vehicle accidents are the most common form of personal injury leading to a court case. While this is true for both Ontario and Quebec, what is different is how each province deals with motor vehicle collisions.
In Ontario, an injured person has the right to sue for compensation through the courts based on common law principles and has the right to claim no-fault accident benefits. The Statutory Accident Benefits Schedule (SABS) applies, giving individuals specific benefits following a motor vehicle accident. The SABS system is more complicated when it comes to catastrophic impairment assessments, making it challenging for those with severe injuries, such as spinal injuries or significant brain damage, to be considered catastrophically impaired.
Quebec uses a no-fault system administered by the Société de l’Assurance Automobile du Québec (SAAQ). Whereas the Ontario system allows for compensation claims through the courts under the common law, the Quebec system strips the individual’s right to sue the at-fault driver but provides automatic benefits to accident victims through the SAAQ.
The unique structures of these motor vehicle accident regulations often lead to confusion, with many Ontarians unfamiliar with the workings of SAAQ and vice versa. This lack of knowledge can pose a problem when Ontarians are injured in Quebec and the other way around.
Tort vs. No-Fault
Legal fees are another key distinguishing factor between the provinces. In the context of injury law, Quebec’s no-fault system does not pay legal fees. As a result, there is less uptake of personal injury law in Quebec and a greater emphasis on administrative tribunals. In fairness, the Ontario SABS system does not provide a way for an injured claimant to recover legal fees either. The difference is that in Ontario, an innocent accident victim can also sue the at-fault driver and collect not only damages (compensation) but some legal fees as well.
Ontario follows a tort system where the ‘loser pays,’ meaning the successful party can recuperate legal fees. Many travellers assume that if they are injured while they are away, they can sue in their courts at home and their home province’s legislation applies. But this is not true. The tort system does not apply to Ontario residents that are injured in Quebec. However, Quebecers injured while in Ontario may be eligible for a tort claim. As with everything in law, there is a Latin maxim that applies. The Supreme Court of Canada ruled that the principle of lex loci delicti commissi (meaning “the substantive law of the place where the wrongful act occurred applies”) says what law will govern an injury case. Thus, if a crash occurs in Ontario, then Ontario law applies. If a crash occurs in Quebec, then Quebec law applies.
Advice for Quebec & Ontario Residents
Thousands of motorists who have property or commitments in the other province use the Ontario-Quebec border daily. Many live in one province but work in the other, or own cottages in one of the provinces but primarily reside in the other. Whatever the reason for crossing that border, it’s important to know the legal differences between your home and visiting provinces.
It is most often Quebeckers who find themselves misinformed about their injury rights. If a crash occurs in Ontario, the Quebec resident may return to Gatineau, Montreal or beyond and collect SAAQ benefits. But they also have the right to make a common law claim for compensation under Ontario law.
This fortunate turn of events for the Quebecker works in reverse for the Ontario resident. If injured in Quebec, the Ontarian has the right to collect SAAQ benefits and possibly SABS benefits as well. However, they have no right to sue the at-fault driver for compensation in neither the Quebec nor Ontario courts.
Seek a Qualified Personal Injury Lawyer
Only some individuals know the full extent of personal injury law. That’s why working with a qualified personal injury lawyer is absolutely essential in cross-province injury cases. Navigating the complexities of personal injury can be much simpler with the help of an experienced professional. Regardless of the province of injury, personal injury lawyers are the best-equipped professionals to help you receive the fairest compensation possible for your unique situation. Not calling your lawyer after an injury means you may not receive compensation for your losses.
Seek Out Location-Specific Experts
When it comes to cross-border injury litigation, no matter where you live, everything needs to go through local service providers. Ideally your lawyer will be local to where you live and will ensure you receive the best and most appropriate rehabilitation care for your specific injury or impairment. It’s essential for your lawyer to consult with local experts to ensure the best healthcare outcome and return to function, work and healthy living. Often your injury lawyer will collaborate with a qualified lawyer in the region where your injury occurred. Your Ontario injury lawyer will need the advice and guidance of a Quebec lawyer, and vice versa, to properly litigate an out-of-province case.
The differences between Ontario’s and Quebec’s personal injury laws are distinct and can feel overwhelming to those trying to navigate the legal system. Being aware of these differences helps you know how to manage any situation you may find yourself in. Working with a lawyer well-versed in the relevant jurisdiction can help you stay informed and feel more prepared and confident to tackle the case ahead, regardless of where you live.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Ted Bergeron
