Difference between revisions of "ICBC and Compulsory Coverage (12:X)"

Regardless of who is at fault in an accident, ICBC pays benefits for injuries to the occupants of a licensed vehicle and pedestrians and cyclists injured by a vehicle described in any owner’s certificate. The accident benefits, commonly called “no fault” benefits, are payable to an insured for death or injury caused by an accident arising out of the owner’s ownership, use, or operation of a vehicle in Canada or, with some restrictions, in the U.S. (IVR, s 79(1)).  

In [http://www.canlii.org/en/ca/scc/doc/1995/1995canlii66/1995canlii66.html?autocompleteStr=amos%20v&autocompletePos=1 ''Amos v ICBC''], 1995 CanLII 66 (SCC), the Supreme Court of Canada laid out a two-part test for determining if death or injury falls within the scope of s 79(1). The following must be met:

*a) the accident must result from the ordinary and well-known activities to which automobiles are put; and  

*b) there must be some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’s injuries and the owner’s ownership, use, or operation of his or her vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous.

*a) within 20 days of the accident, the injury completely disables the insured; and

:'''NOTE:''' There is a waiting period of seven days before disability benefits are paid out. Also, no benefits are paid for these initial seven days (''IVR'', s 85).  

Insured persons who are homemakers may also be eligible for no fault benefits. If a homemaker sustains an injury from an accident, and it substantially or continuously disables the insured from regularly performing most household tasks, ICBC will compensate the insured for the duration of the disability or 104 consecutive weeks, whichever is shorter (''IVR'', s 84(1)). The insured will be compensated for reasonable expenses incurred by the insured in hiring a person to perform household tasks on the insured’s behalf, up to a maximum of $145 per week (''IVR'', Schedule 3, s 2). However, there is no compensation for household tasks performed by an insured’s family members (''IVR'', s 84(2)).

If at the end of the first two years, the total disability continues, an insured receiving benefits under s 80 or 84 of the ''IVR'' can continue to receive the payments for the duration of the disability or until the age of 65, whichever is shorter (''IVR'', s 86). The no fault benefits will be reduced by the amount of the Canada Pension Plan benefits if and when such benefits become payable to the insured (IVR, s 86).  

:'''NOTE:''' Any benefits payable under s 80, 84, or 86 of the ''IVR'' may be reviewed every 12 months and terminated by ICBC on the advice of its medical adviser (''IVR'', s 87).  

In addition to the disability benefits described above, ICBC is obligated to pay all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing service, or for necessary physiotherapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis (''IVR'', s 88(1)). In appropriate cases, ICBC may also provide attendant care to the insured to perform duties normally undertaken by the insured (''IVR'', s 88(2)(c)). Under Schedule 3, s 3, ICBC’s liability for rehabilitation benefits is limited to $150,000. Also, ICBC is not liable for expenses payable to the insured under a medical, surgical, dental, or hospital plan, or paid or payable by another insurer (s 88(6)).

In the event of the applicant’s death, ICBC will pay:  

*a) up to $2,500 for funeral expenses (see s 91 and s 4 of Schedule 3 of the ''IVR'');

*b) $5,000 if the deceased was a “head of a household” (i.e. was providing the “major portion” of household income), plus a Supplemental Death  benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per  week for each additional survivor for a duration of 104 weeks (see s 92–94 and Schedule 3 ss 5, 6 and 7 of the ''IVR'');  

:'''NOTE:''' Status with respect to “head of household”, “spouse of household” or “dependent child” is determined at the date of death resulting from a motor vehicle accident.

In addition, the ''Family Compensation Act'', RSBC 1996, c 126 [''FCA''], creates a statutory right for claims to be brought by the surviving spouse, parent, grandparent, or child of the deceased, in some cases appropriately as against ICBC.

The ''FCA'' provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see [http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1168/2013bcsc1168.html?autocompleteStr=mcleod%20v%20ga&autocompletePos=5 ''Gaida Estate v McLeod''], 2013 BCSC 1168).

The ''FCA'' intends to place the claimant in the same economic position that he or she would have enjoyed but for the death of his or her spouse, parent or child.  There are only a limited number of family members that would be eligible for compensation under the ''FCA'', and the definition of who qualifies for compensation is important.  The starting point to determine eligibility for bringing a claim begins with section 1 of the ''FCA''.

No fault benefits can be reinstated if a person receiving benefits goes back to work only to find that the injury comes back and prevents them from working ([http://www.canlii.org/en/bc/bcsc/doc/1999/1999canlii6570/1999canlii6570.html?autocompleteStr=brewer%20v%20ins&autocompletePos=1 ''Brewer v ICBC''] 1999 CanLII 6570 (BCSC)). This includes a situation where a plaintiff goes back to work prior to the end of the 104-week period and leaves work after the end of the 104-week period ([http://www.canlii.org/en/bc/bcca/doc/2016/2016bcca207/2016bcca207.html?autocompleteStr=symons%20v%20insu&autocompletePos=3 ''Symons v ICBC''], 2016 BCCA 207).

Claimants should check the ''IVR'' carefully to find what restrictions are applicable to a given claim for benefits. The following is merely a brief summary of some very complicated provisions. Generally, ICBC is not liable to pay any of the benefits discussed above, in any of the following situations:  

The same provisions apply as those outlined under Third Party Legal Liability. These are contained in s 19 of the ''IVA'' and s 55 of the ''IVR''. See [[{{PAGENAME}}#10. Forfeiture of Claims and Relief from Forfeiture | Section III.B.10: Forfeiture of Claims and Relief from Forfeiture]] and [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section III.B.11: Breach of Conditions and Consequences]], above.

Section 103 of the ''IVR'' provides that any action started to enforce no fault or accident benefits must do the following:

*the insured must have “substantially” complied with sections 97-100 (See Section III.C.6.b: Duties in Sections 97-100 of the ''IVR'' below); and  

*the action must be started within two years after the date of the accident for which the benefits are claimed, or where benefits have been paid, the date the insured last received a payment. This limitation period also applies to minors. In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident.

An insured must meet the requirements set out in s 97-100 of the ''IVR''. If an insured fails to do this to the prejudice of ICBC, ICBC may deny coverage of a claim. The following is a brief summary and claimants should refer to the ''IVR'' for more detail. The insured must comply with the following:

:'''NOTE:''' For liability to cease (i.e. coverage to be denied), ICBC must have suffered prejudice as a result of the applicant’ s failure to comply.