Canadian Underwriter

Public not aware of rights lost in B.C.’s no-fault auto scheme: personal injury lawyer

December 1, 2020   by Greg Meckbach

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The average British Columbia consumer does not really understand what rights they will lose with the auto insurance reforms scheduled to take effect this May, a Vancouver personal injury lawyer warns.

Provincial politicians voted earlier this year to pass Bill 11, which would increase accident benefits but also take away claimants’ right to sue at-fault motorists in most cases.

“If you get injured, there is going to be no fault with respect to consequences,” said Tony Vecchio, a partner with law firm Slater Vecchio, in a recent interview. “The public here does not [fully] understand [what no-fault actually means].”

The reforms brought in by the provincial government are intended to reduce the Insurance Corporation of B.C.’s claims burden. The idea is to reduce the cost of defending tort claims and to bring in first-party care and treatment benefits of up to $7.5 million.

“The overall intent is, only rare occasions and odd circumstances would result in the ability [of a motor vehicle accident victim] to sue,” Chuck Byrne, CEO of the Insurance Brokers Association of B.C., explained in an interview this past October.

Byrne was interviewed about a provincial opposition Liberal election promise to open up basic auto insurance to competition. Byrne also commented on some of the auto insurance reforms the ruling New Democratic Party has brought in.

Before the B.C. election Oct. 24, 2020, the NDP had a minority government, supported by the Greens. As a result of that provincial election, the NDP now has a majority government.

“The no-fault concept that the NDP came out with is rock-solid from the perspective of the modern need to fulfill the requirements of the population dealing with the social dilemma of driving,” Bryne told Canadian Underwriter before the election.

But personal injury lawyers are concerned about Section 115 of the Insurance (Vehicle) Act, which was passed into law alongside Bill 11 in August 2020. That section has yet to come into force.

Section 115 says:

Despite any other law or enactment but subject to this Part,

(a) a person has no right of action and must not commence or maintain proceedings respecting bodily injury caused by a vehicle arising out of an accident, and

(b) no action or proceeding may be commenced or maintained respecting bodily injury caused by a vehicle arising out of an accident.

There are a few exceptions.

The recently-passed amendment includes a list of persons or corporations who can still be named as defendants in B.C. motor vehicle personal injury lawsuits after the reforms take effect. They include vehicle manufacturers, at-fault drivers convicted of “prescribed” criminal offences, and someone licenced to serve alcohol.

Denying accident victims the right to sue takes away access to justice, said Vecchio. “The no-fault system is essentially a system in which, ‘We will tell you it’s so, and therefore it’s so, and that’s the end of it.’ So it’s an egregious system.”

For its part, the provincial government says ICBC’s current coverage only provides up to $300,000 in accident benefits, far lower than the $7.5 million that would be available under the system scheduled to take effect in May, 2021.

With the current system, income replacement is up to 75% of gross income to a maximum of $740 a week. Under the yet-to-be implemented care-based system, income replacement would be 90% of net income up to $1,200 a week, with options to buy higher limits.

The provincial government says accident benefits claimants who have complaints or disputes can take them to the Civil Resolution Tribunal, the B.C. ombudsperson, or an ICBC fairness officer.

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