When You Can Still Sue (12:VII)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 18, 2021.|
NOTE: The following portion of this chapter is meant to serve as a basic primer covering some of the key principles of the new ICBC system, which applies to claims for accidents occurring on or after May 1, 2021. Given that this no-fault system is new as of May 1, 2021, there are still certain portions of it that are being clarified, or that may adapt with implementation.
A. Injuries from an Accident
Section 115 of the IVA states that there is no longer a right of action (an ability to bring a lawsuit against someone) in British Columbia for injuries from a motor vehicle accident.
However, s 116(2) of the IVA outlines certain exceptions in which those injured in a motor vehicle accident can sue for certain non-pecuniary and non-compensatory damages (non-pecuniary damages are those that are difficult to assign a number value to, such as pain and suffering damages. Non-compensatory damages are those that are not meant to directly compensate for the injury, such as punitive damages, which are designed to punish the defendant). The exceptions in which a person injured in a motor vehicle accident can still bring a lawsuit for non-pecuniary and non-compensatory damages are:
a) a vehicle manufacturer, respecting its business activities and role as a manufacturer;
b) a person who is in the business of selling vehicles, respecting the person's business activities and role as a seller;
c) a maker or supplier of vehicle parts, respecting its business activities and role as a maker or supplier;
d) a garage service operator, respecting its business activities and role as a garage service operator;
e) a licensee within the meaning of the Liquor Control and Licensing Act whose licence authorizes a patron to consume liquor in the service area under the licence, respecting the licensee's role as a licensee in the sale or service of liquor to a patron;
f) a person whose use or operation of a vehicle
(i) caused bodily injury, and (ii) results in the person's conviction of a prescribed Criminal Code offence; [(s 12 of the IVR sets out prescribed Criminal Code offences)]
g) a person in a prescribed class of persons. [(s 13 of the IVR further defines this)]
Note that the government has reserved the right to pass new regulations restricting ss 116(a) - 116(e). They also reserve the right to pass further regulations clarifying exceptions under s 116 (g).
These exceptions also do not apply to voluntary operators and passengers in vehicles that, “knew or ought to have known...[were] being operated without the consent of the owner, the out-of-province owner or, in the case of a leased motor vehicle, the lessee” (IVA, s 116(1)). This means that voluntary operators and passengers in situations where a vehicle is being operated without the owner or lessee’s consent cannot sue under the new system, even if they otherwise fit within the other exceptions outline in s 116(2).
B. Vehicle Damage
Sections 172 and 173 of the IVA state that there is no longer a right of action (an ability to bring a lawsuit against someone) in British Columbia in most circumstances for vehicle damage occurring in accidents involving at least two cars and occurring on- and off-highway.
However, there are certain prescribed classes of persons who may still have an action brought against them for vehicle damage from on-highway accidents, or who may start an action for vehicle damage from off-highway accidents (IVA, ss 172 and 173). See the Basic Vehicle Damage Coverage Regulation ss 6(2) and 8(2) for these exceptions in relation to both on-highway and off-highway accidents.
C. Uninsured and Unidentified Motorist Cases
As noted in Part I, Sections III.D and E of this manual, in order to claim damages in uninsured and unidentified motorist cases, a claimant may be required to bring legal action against an uninsured motorist, or (in unidentified motorist cases) against ICBC as a nominal defendant. As noted, under the new system the coverage for uninsured and unidentified motorist accidents only applies to non-vehicle property damage caused by such accidents, so the bars on litigation for injuries and vehicle damage discussed above would not affect the ability to litigate in these cases.
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