What If My Insurance Broker Doesn’t Tell Me About Optional Benefits?

As previously discussed on the OTLA Blog, everyone should consider buying optional automobile insurance Accident Benefits.

In 2016, Accident Benefits were slashed by the Ontario Government.  But, consumers can buy back the old coverage levels (and more) by purchasing optional benefits.

Instead of the “normal” $65,000 of Medical and Rehabilitation (Med-Rehab) and Attendant Care Benefits available to non-“minor” and non-Catastrophic injury victims and the $1M for Catastrophic level benefits, people can buy:

  • $130,000 for non-Catastrophic Med-Rehab and Attendant Care
  • Combined $1M for all injuries
  • Combined $3M for Catastrophic injuries

And, buying this significantly increased coverage costs very little.

The problem is, many people don’t know about optional benefits.

Some insurance brokers do a good job of telling their clients about optional benefits.  Others do a horrible job (or say nothing at all).

If you are in a car accident and your broker did not properly explain optional benefits to you at the time that you bought your insurance, then you can sue your broker for the difference between the standard benefits and optional benefits.  There is a huge difference between $65,000 of benefits and $130,000 (or $1M!), especially for someone with severe injuries. 

A broker has a duty to exercise reasonable skill and care to obtain insurance policies for their client in the terms bargained as circumstances might require.  As part of this:

  • The agent/broker has a duty to advise his customer if he is unable to obtain the policies bargained for so that his customer may take such further steps to protect himself as he/she deems desirable
  • If the customer gives no specific instructions, but simply relies on the agent/broker to see that he/she is protected, then, the agent/broker must inform himself/herself about the client in order to assess foreseeable risks and insure his client against them

If the broker fails in that duty, the client must show that 1. The policy requested would have covered the loss (ie. the insurance coverage exists somewhere) and 2. If the client knew that they were not covered, they would have obtained coverage.[1]

Applying to this to optional Accident Benefits, the broker has a duty to (at least) tell the client about optional benefits, explain what they cover and explain the cost.  If the broker does not meet that duty, the client must show that:

  1. The coverage exists. It does!  Optional benefits exist!
  2. The client would have bought the coverage had they known about it. The client would have bought the optional coverage as the optional coverage is very similar (or the same) as what the client had previously bought prior to the 2016 benefit reductions.  And, because the cost of the optional benefits is cheap!

Therefore, the client wins.  The broker loses.  And, it all would have been so much better if the broker had properly informed the client about optional benefits.


[1] Fine’s Flowers, ONCA, 1977

Duncan Macgillivray
Written by

Duncan is a founding partner of White Macgillivray Lester LLP in Thunder Bay and Lecturer at the Bora Laskin Faculty of Law, Lakehead University, teaching Insurance Law. Duncan has served injury clients all across Northwestern Ontario, from the Manitoba border in the west, to Greenstone in the east and all the way up north to Hudson’s Bay. Duncan is involved in his community, serving on the Board of Directors of the Brain Injury Association of Thunder Bay and Area from 2009 to Present (with 2010 to 2015 as President) and the Board of Directors of Thunder Bay Counselling Centre 2009 to 2015 (with 2011 to 2015 as Board Chair). Duncan is also involved in the legal community, sitting on the Board of Directors of the Ontario Trial Lawyers’ Association since 2015, Thunder Bay Law Association since 2012, and Co-Chairing the Thunder Bay Law Association’s Civil Litigation CLE programs.