Small Claims Court

Can you sue the other driver in Small Claims Court for damage to your car?

Last updated October 7, 2026.

Usually not, if both cars were insured in Ontario and the crash happened in Ontario. Section 263 of the Insurance Act makes your own insurer pay for damage to your car, its contents and loss of use, based on the provincial Fault Determination Rules, and takes away your right to sue the other driver for that damage. Small Claims Court is still open when the other driver was uninsured, the crash was outside Ontario, other property was damaged, or you dispute fault with your insurer.

This system is called Direct Compensation, Property Damage, often shortened to DCPD. It surprises many drivers, who expect to send the repair bill to the person who hit them. This guide explains when the courthouse door is closed, when it is open, and what a claim looks like when it is. For the wider picture of the court and the help Carson Frankum, a licensed paralegal in Hamilton, offers, see our page on Small Claims Court representation.

How does a car damage claim work in Ontario, step by step?

The rules come from section 263 of the Insurance Act and the Fault Determination Rules (R.R.O. 1990, Reg. 668). Here is the usual path after a collision between two insured vehicles.

1. Collect the other driver's details at the scene. Every driver involved must, on request, give in writing their name, address, licence number, insurer and policy number, and the owner's name and address (Highway Traffic Act, s. 200(1)). Whether the other car was insured decides almost everything that follows. If the other driver leaves or refuses, that is its own offence; see our guide on failing to remain or report a collision.
2. Report the claim to your own insurer. Under section 263(2), you recover for damage to your car and its contents, and for loss of use, from your own insurer "as though" you were a third party making a claim against someone else.
3. Your insurer decides fault using the regulation. Section 2 of Reg. 668 requires the insurer to set your degree of fault under those rules. Section 3 says this is done without reference to weather, road conditions, visibility or the actions of pedestrians. For example, a driver struck from behind while stopped or moving forward in the same lane is not at fault, and the driver behind is 100 per cent at fault (s. 6(2)).
4. Your insurer pays according to that fault. Section 263(3) bases recovery on your degree of fault. In general, the more fault assigned to you, the less you recover. Your policy may also carry a deductible on this coverage (s. 263(5.1) and (5.2.1)).
5. If you disagree, the dispute is with your insurer. Section 263(4) lets you sue your own insurer if you are not satisfied that the fault percentage reflects what actually happened, or with its settlement offer. That case is decided under the ordinary rules of law, not the fault chart, and a claim of $50,000 or less belongs in Small Claims Court.
6. If section 263 does not apply, you sue the people responsible. Under the Highway Traffic Act, the driver is liable for damage caused by negligent driving (s. 192(1)), and so is the owner, unless the vehicle was taken without consent (s. 192(2)). They are jointly and severally liable (s. 192(6)), so you can name both.
7. File, serve and prepare. You file a Plaintiff's Claim where the collision happened or where a defendant lives or carries on business; our guide on which courthouse to file in explains the choice. You serve it within six months, and the defendants have 20 days to file a Defence.

When can you sue the other driver in Small Claims Court?

Section 263(5)(a) says that when the section applies, you have no right of action against anyone involved in the incident, other than your own insurer, for damage to your car, its contents or loss of use. So the real question is whether section 263 applies at all. It does not apply, and a lawsuit against the at-fault driver and owner becomes possible, in these situations:

• The other vehicle was uninsured. Section 263(1)(c) requires at least one other vehicle insured under an Ontario motor vehicle liability policy. If it was not, you can sue the driver and owner, and your own policy's uninsured automobile coverage may also pay for damage caused by an identified uninsured driver (s. 265(1)(c)). Driving without insurance is also an offence, which our guide on driving without insurance covers.
• The collision was outside Ontario. Section 263(1)(a) covers damage from the use or operation of a vehicle in Ontario. Where you sue for a crash elsewhere raises its own questions.
• The property is not your car. If a driver hits your garage, fence or storefront, section 263 does not cover that property, so the claim goes against the driver and owner.
• Contents carried for reward. Section 263 does not apply to goods you were carrying for pay (s. 263(7)).

In each case, Small Claims Court can hear the claim if it is $50,000 or less, not counting interest and costs. Our guide to how much you can sue for explains the limit.

What changes the answer?

• Opting out of DCPD. Section 263(2.2) lets an insured elect, under the regulations, not to recover from their own insurer under DCPD. If you do, your insurer also cannot offer you collision or upset coverage (s. 263(2.3)(b)), and the bar on suing the other driver in subsection (5) still applies. Check your policy before you assume you have this coverage.
• Who proves what. When a motor vehicle causes damage on a highway, the owner or driver usually has to prove it was not their negligence (Highway Traffic Act, s. 193(1)). That reverse onus does not apply to a collision between motor vehicles (s. 193(2)), so in a car-to-car case you must prove the other driver's fault.
• Rules that overlap. If more than one fault rule fits, the one giving your insured the least fault applies (Reg. 668, s. 4(1)). If the situation is not described in the rules, or there is not enough information, fault is decided under the ordinary rules of law (s. 5).
• Uninsured property damage other than vehicles. Ontario's Motor Vehicle Accident Claims Fund may pay for uninsured property damage, other than vehicles, when the at-fault owner and driver are identified: up to $10,000 including interest per accident, with a $100 deductible. Ontario says a claim over $3,000 also requires legal action.
• Time. A claim generally must be started within two years of the day it was discovered (Limitations Act, 2002, s. 4 and 5). Do not let a slow insurance file run you past that date.
• Injuries. Injury claims after a collision follow different rules in the Insurance Act and are outside this guide.

A worked example

For example, imagine a Hamilton driver named Marcus who is stopped at a red light when another car rolls into his rear bumper. Both drivers have Ontario auto insurance. Marcus is annoyed that his insurer, not the other driver, handles the repair. Because he was stopped and struck from behind in the same lane, Reg. 668 section 6(2) puts him at zero per cent fault, and he claims under DCPD for his repairs and a rental car (loss of use). He has no right to sue the other driver for those items, so a Small Claims Court claim against that driver would be the wrong move.

Now change one fact. The other driver's policy had lapsed months earlier, and the car also clipped the brick planter in front of Marcus's house when it rolled forward. Section 263 no longer applies to the car, because the other vehicle was not insured. Marcus gets a written repair estimate for the car and another for the planter, notes the owner's name from the ownership papers, and files a Plaintiff's Claim at the Small Claims Court in Hamilton against both the driver and the owner. He serves the repair estimates at least 30 days before trial so they can be received in evidence (Small Claims Rules, r. 18.02). He also tells his own insurer, since his uninsured automobile coverage may pay part of the car damage. How much he recovers, and whether he can collect, depends on the evidence and the defendants' means; the example shows the steps, not a result. Our guide to what happens at a Small Claims trial covers the hearing.

Common mistakes people make

• Suing an insured driver for car repairs. If section 263 applies, there is no right of action for that damage, and the claim can fail on that ground alone.
• Not getting insurance details at the scene. Whether the other car was insured is the first fact everyone will ask, and it is hardest to prove later.
• Suing only the driver. The owner is also liable when the car was driven with consent (HTA s. 192(2)), and an owner may be easier to find and to collect from.
• Arguing the fault chart with the other driver. A dispute about your DCPD fault percentage is with your own insurer under section 263(4), not with the other motorist.
• Losing the estimate trail. Repair estimates, invoices and rental receipts are your proof of the amount. Keep originals and serve them on time.
• Waiting on the insurer past two years. The limitation period keeps running while you negotiate.

What to do this week

1. Write down everything you know about the other driver, the owner, the plate and the insurer, and get the police report or collision report number if there is one.
2. Open a claim with your own insurer and ask, in writing, for the fault percentage and the rule they applied.
3. Check your policy for DCPD, any deductible and any collision coverage.
4. If the other driver was uninsured or other property was hit, get written repair estimates and keep every receipt.
5. Mark the two-year date from the collision in your calendar.
6. If a court claim is needed, decide where to file and gather the evidence for a Plaintiff's Claim.

Frequently asked questions

Can I sue the other driver for my deductible?

Generally no, when section 263 applies. The bar in section 263(5)(a) covers any claim against the other people involved for damage to your car, its contents or loss of use, and a deductible is part of that damage.

Does a ticket for the other driver decide who is at fault?

Not for DCPD. Your insurer applies the Fault Determination Rules, which look at how the collision happened. A traffic charge is a separate Provincial Offences Act matter in the Ontario Court of Justice, with its own process; our guide on careless driving charges explains one common example.

What if I think my insurer got the fault percentage wrong?

Ask your insurer for the rule it applied and the facts it relied on. If you still disagree, section 263(4) lets you sue your own insurer, and the court decides fault under the ordinary rules of law. A claim of $50,000 or less can be brought in Small Claims Court.

Can I get a rental car paid for?

Section 263(2) includes "loss of use" in what you recover from your own insurer under DCPD. When section 263 does not apply, loss of use can be part of a claim against the driver and owner.

The other driver drove away. Can I still recover?

If the driver is never identified, you cannot sue them. Ontario's Motor Vehicle Accident Claims Fund does not compensate damage to vehicles, so any physical damage coverage on your own policy is usually the route for the car.

Can a licensed paralegal handle this?

Yes, for a claim in Small Claims Court, including a claim against your own insurer that fits within the limit. Ontario's paralegal licence covers Small Claims Court proceedings; a claim above $50,000 that you do not want to reduce belongs in the Superior Court of Justice, where you would need a lawyer.

Is this different from a renovation or property claim?

Yes. Ordinary property and contract claims have no DCPD-style bar. If your dispute is about building work, see our guide on suing a contractor.

Sources

• Insurance Act, sections 263 and 265 (Ontario e-Laws)
• R.R.O. 1990, Reg. 668, Fault Determination Rules (Ontario e-Laws)
• Highway Traffic Act, sections 192, 193 and 200 (Ontario e-Laws)
• Motor Vehicle Accident Claims Fund (Government of Ontario)
• Limitations Act, 2002 (Ontario e-Laws)
• O. Reg. 626/00, Small Claims Court Jurisdiction and Appeal Limit (Ontario e-Laws)
• Rules of the Small Claims Court, O. Reg. 258/98 (Ontario e-Laws)
• Law Society of Ontario By-Law 4, Licensing

Need help with a Small Claims Court matter? Contact us today for a consultation.

This page gives general information about Ontario law, not legal advice for your situation. Cheddar Paralegal PC is a paralegal firm licensed by the Law Society of Ontario; licensed paralegals can help only with matters the Law Society allows paralegals to handle.