OHTA.ca

Hi everyone,

my wife and kids were in an accident where she was driving her car straight in the right lane through an 4 lane intersection, when a right-turning car at the intersection tried to cut in abruptly, about to hit her side. This caused her to swerve to try and avoid an accident. Now, the right-turning car still hit her, and caused some damage to both vehicles. My wife's car was hit in the back right wheel well area cracking the bumper, and the right-turner's car cracked his bumper's front left side.

A policeman drove up to the scene after the fact, consoled my wife, told her and the kids to sit tight, not to worry about anything, then proceeded to take a statement from the right-turner about how my wife changed lanes unsafely and hit him. Now my wife's side of the story is completely unheard, and the police report is written up with only the right-turner's side of the story. We only found this out when the insurance company notified us that my wife is at fault because of this bad police report. The policeman didn't witness the accident, this is completely wrong!

We went to the police station where the policeman is stationed, and he would not take my wife's side of the story, saying he had 20 years of experience with this sort of thing and it was obvious from the damage that my wife was at fault. His Sergeant was no help either, and they said that the police reports are final and they do not change them, ever.

What can I do in this situation? I know that the police claim about never changing is not true - we need to go to some court to fight this, he has no right to judge my wife at fault when there are no witnesses, and the only statement came from the guy who was directly involved in the accident.

Where do I go from here?

Help!

Unfortunately, you'll likely have to sue in order to challenge your insurer's fault determination. It all depends upon the provisions of your insurance policy on whether you can pursue alternative dispute resolution such as arbitration. However, in Ontario, auto insurance policies follow the standard OAP 1 policy. You can view OAP 1 here. You'll notice that under section 6.7.3, they specifically say that you have to sue them if you disagree with their fault determination so that a judge can make the proper determination. Section 263(4) of the Insurance Act also sets that out.

Thus, your best bet is to retain a lawyer. Just be aware that the police report may be flawed (and you might also have legal recourse against the police service for its potential shoddy work), but even so, accident fault determination is always made by the insurers; not the police. Therefore, don't confuse the two matters.

Also just wanted to clarify... was your wife charged with anything?

Has your insurance company determined she was at fault? They will get the police report, (hopefully) take her statement into account as well and make their determination. But, like any other organization private or public, they'll likely take the easy road and just go with what the police wrote. At this point, if you wanted to continue disputing the police investigation, you could ask to speak to an Inspector or Superintendent. I wouldn't be too happy if an officer just took only one person's version of events, made up his mind and walked away... but that's just me.

If the insurance company doesn't listen to your wife's version of events, or discounts it entirely, I'd probably contact the FSCO (Financial Services Commission of Ontario), since they regulate Ontario's insurance industry. If you disagree with your insurance company's decision, that's the best place to start. They can be bureaucratic but there are people who said that, even with a bit of red tape, they're generally helpful.

After opening the page, you'll find "Dispute Resolution Services." You can also call the FSCO and ask them for general information.

Unfortunately, the FSCO's Dispute Resolution service is limited to Accident Benefit claims. Therefore, court is your only option since your claim would be related to the physical damage (fault determination). If the total damages are under $25K, then you could proceed via small claims court (and might be able to do so without a paralegal or lawyer). However, if its greater than $25K, its best to retain a lawyer since it would take place in Superior court.

In any event, you should also get legal advice regarding the potential liability of the police service----the courts have been allowing lawsuits and recovery to succeed against the police for various forms of negligence (but in a very limited scope).

Keep in mind theres a big difference between not listening to your wifes version of events and not agreeing with them. In most accidents, there are conflicting statements from the involved drivers regarding each others actions and whos at fault. Police try their best to determine what happened based on the drivers and witness statements along with any physical evidence. Sometimes the evidence doesnt support a drivers claim and sometimes the police get it wrong. If the officer never took even the most basic statement from your wife regarding what happened, I would agree thats not acceptable. If he simply disagrees with what she said happened, thats a different matter. Regardless, youll have to follow the appeals process set out above. Good luck.

highwaystar wrote:Unfortunately, the FSCO's Dispute Resolution service is limited to Accident Benefit claims.

Ah yes, I should've read the fine print. Thanks for pointing it out.