|
|
| Line 177: |
Line 177: |
| :*a conviction under ss 95 or 102 of the MVA or similar convictions under another Canadian or American jurisdiction (both concern driving while prohibited); or | | :*a conviction under ss 95 or 102 of the MVA or similar convictions under another Canadian or American jurisdiction (both concern driving while prohibited); or |
| :(c) permitting another person to use the insured vehicle in a way that results in a conviction for any of the offences outlined above (''IMVA Regulations'', s 55). | | :(c) permitting another person to use the insured vehicle in a way that results in a conviction for any of the offences outlined above (''IMVA Regulations'', s 55). |
|
| |
| == C. Accident (“No-Fault”) Benefits: Part 7 of the ''IVR'' ==
| |
|
| |
| === 1. What are “No-Fault” Benefits? ===
| |
|
| |
| 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] 3 SCR 405, 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 their vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous.
| |
|
| |
| ''Amos'' reversed the BC Court of Appeal judgment and held that the plaintiff’s injuries were causally connected to the ownership and use of their vehicle. The plaintiff was shot while driving away from a gang who was trying to gain entry into their motor vehicle. However, Major J. noted that if the gunshots had been truly random and not causally connected to the plaintiff’s ownership of the vehicle then their injuries would not have been covered under s 79(1).
| |
|
| |
| === 2. Who is Covered? ===
| |
|
| |
| Section 78 of the ''IVR'' contains a definition of "insured", which includes, in part:
| |
| *a person named as an owner in an owner's certificate;
| |
| *a member of the household of a person named in an owner's certificate;
| |
| *an occupant of a vehicle that is licensed in the province and is not exempted under section 1.01 or 1.02 of the ''Act'' (vehicles from the federal or a provincial government other than BC);
| |
| *any occupant of a vehicle that is not required to be licensed in BC, but is operated by a person named in a driver's certificate;
| |
| *a cyclist or pedestrian who collides with a vehicle described in an owner's certificate;
| |
| *a resident of the Province who is entitled to bring an action for injury or death under section 20 (uninsured vehicles) or 24 (remedy for hit and run accidents) of the ''IVA''; or
| |
| *the personal representative of a deceased insured.
| |
|
| |
| === 3. Benefits Payable ===
| |
|
| |
| ==== a) Disability Benefits for Employed Persons ====
| |
|
| |
| ICBC is obligated to pay “no fault” benefits to an insured person if:
| |
| :(a) within 20 days of the accident, the injury completely disables the insured; '''and'''
| |
| :(b) the insured is an “employed person” (''IVR'', s 80).
| |
|
| |
| An “employed person” is defined in s 78 of the ''IVR'' as a person who, on the day of the accident or for any 6 months during the previous 12 months immediately preceding the accident, is employed or actively engaged in an occupation for wages or profit. Eligible insured persons who are completely unable to engage in employment can collect either 75 percent of their average gross weekly earnings or $300 per week, whichever is less, for the length of the disability or 104 weeks, whichever is shorter. See section 80 and Schedule 3, s 2(a) of the ''IVR'' for more details. Starting April 1, 2019, this amount will be increased to $740 per week.
| |
|
| |
| :'''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).
| |
|
| |
| ==== b) Disability Benefits for Homemakers ====
| |
|
| |
| 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(b)). However, there is no compensation for household tasks performed by an insured’s family members (''IVR'', s 84(2)). Starting April 1, 2019, this amount will be increased to $280 per week.
| |
|
| |
| ==== c) Disability Beyond 104 Weeks ====
| |
|
| |
| 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).
| |
|
| |
| ==== d) Medical or Rehabilitation Benefits ====
| |
|
| |
| 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 $300,000. For qualification: the amount by which the liability of the corporation is limited in respect of each insured injured:
| |
| *in the same occurrence on or after January 1, 1990 and before January 1, 2018 must not exceed $150 000, and
| |
| *in the same occurrence on or after January 1, 2018 must not exceed $300 000.
| |
| 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)).
| |
|
| |
| ==== e) Death Benefits ====
| |
|
| |
| In the event of the applicant’s death, ICBC will pay:
| |
|
| |
| :(a) up to $7,500 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 of the ''IVR'');
| |
| :(c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), 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 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 [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96126_01 ''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 (CanLII)).
| |
|
| |
| The ''FCA'' intends to place the claimant in the same economic position that they would have enjoyed but for the death of their 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''.
| |
|
| |
| Compensation under the ''FCA'' is generally limited to the following:
| |
|
| |
| # damages for loss of love, guidance and affection (generally for infant children of the deceased only);
| |
| # damages for the loss of services that would otherwise have been provided by the deceased to the remaining family members;
| |
| # damages for the loss of financial support to the remaining family members;
| |
| # limited out-of-pocket expenses incurred as a direct result of a death (funeral and related expenses); and,
| |
| # damages for loss of inheritance.
| |
|
| |
| ==== f) Reinstatement and Revival of No-Fault Benefits ====
| |
|
| |
| 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 Insurance Corporation of British Columbia''] 1999 CanLII 6570 (BC SC). 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 Insurance Corporation of British Columbia''], 2016 BCCA 207 (CanLII)).
| |
|
| |
| === 4. Restrictions and Exclusion of Benefits ===
| |
|
| |
| 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:
| |
| *if the applicant resides outside BC '''and''' the vehicle in which they were riding or driving at the material time was not designated in an owner’s certificate (s 96(a));
| |
| *if the applicant at the time of the accident was an occupant of, or was struck by, a vehicle that could not be licensed under the ''MVA'' or ''Commercial Transport Act'' (s 96(b)(i));
| |
| *if the death or injury resulted from the injured person’s suicide or attempted suicide, whether “sane or insane” (s 96(c));
| |
| *if the applicant was an occupant of a vehicle being used in an illicit trade at the time of the accident (s 96(e)); or
| |
| *if the death or injury is a result of the applicant's medical condition, as distinct from an injury caused by the accident, unless the condition was itself a direct result of an accident for which benefits are provided under Part 7 of the ''IVR'' (s 96(f)).
| |
|
| |
| Also, under s 90 of the ''IVR'', ICBC may terminate an insured’s benefits if the insured refuses to undergo any:
| |
| *medical, surgical, or other similar treatment, which, in the opinion of the ICBC medical adviser and the medical practitioner attending the insured, is likely to relieve, wholly or partly, the insured’s disability; or
| |
| *retraining or educational program likely to assist in the insured’s rehabilitation.
| |
|
| |
| If ICBC intends to terminate an insured’s benefit, ICBC must first give an insured at least 60 days notice in writing, by registered mail, of their intention to terminate benefits. Under section 90(3) of the ''IVR'', the insured may, within that 60-day period, apply to the Supreme Court for an injunction against the termination of the benefits, on the ground that:
| |
| *the treatment required of the insured is unlikely to relieve the disability;
| |
| *the treatment may injuriously affect the balance of the insured’s health; or
| |
| *the treatment program is not likely to assist in rehabilitation.
| |
|
| |
| === 5. Forfeiture and Breach of Conditions ===
| |
|
| |
| 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 X.B.10: Forfeiture of Claims and Relief from Forfeiture]] and [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section X.B.11: Breach of Conditions and Consequences]], above.
| |
|
| |
| === 6. Making a Claim Under Part 7: Procedural Steps and Considerations ===
| |
|
| |
| ==== a) Limitation Period ====
| |
|
| |
| 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 [[{{PAGENAME}}#6. Duties in Sections 97-100 of the ''IVR'' | Section X.C.6.b: Duties in Sections 97-100 of the ''IVR'']], below; and
| |
| *the action must be started by the later of the following:
| |
| :(a) with '''three months''' after the date of the response from ICBC;
| |
| :(b) within '''two years''' after the date of the accident for which the benefits are claimed;
| |
| :(c) where benefits have been paid, with two years after the date the insured last received a payment.
| |
| *These limitation periods also apply 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.
| |
|
| |
| ==== b) Duties in Sections 97-100 of the ''IVR'' ====
| |
|
| |
| 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:
| |
| *give prompt notice to ICBC of the accident;
| |
| *provide a written report within 30 days of the accident;
| |
| *provide a proof of claim (a standard form authorized by ICBC and provided to applicants) within 90 days of the accident; and
| |
| *at ICBC’s request, promptly provide a certificate of an attending medical professional as to the nature and extent of the insured’s injury and the treatment, current condition, and prognosis of the injury;
| |
| *at ICBC’s expense and request, be medically examined by someone selected by ICBC;
| |
| *where applicable, permit a post mortem examination and/or autopsy.
| |
|
| |
| :'''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.
| |
|
| |
|
| == D. Uninsured Motorists or Unidentified Motorists (Hit and Run) Cases == | | == D. Uninsured Motorists or Unidentified Motorists (Hit and Run) Cases == |