McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

June 2019

AB from Sea to Sea: A Look at Accident Benefits across Canada

Catherine Korte
Catherine Korte,
Partner

Michelle Legault
Michelle Legault,
Associate

émilie-Anne Puckering
Émilie-Anne Puckering,
Law Student

By Catherine Korte, Michelle Legault and Émilie-Anne Puckering

First presented at the Canadian Defence Lawyers Annual Meeting * Plus excerpts were included.

OVERVIEW

The concept of accident benefits is well-known in almost every Canadian jurisdiction. This paper will focus on how the different systems operate, the benefits available, and practice tips that can be applied in cross-border cases. Comparisons between jurisdictions and unique facts about the different systems will also be discussed.

INTRODUCTION

Automobile insurance is classified in one of two common law schemes across Canada: private versus public insurer, and no-fault versus tort. Importantly, these schemes should not be seen as mutually exclusive. Instead, the schemes are best visualized along a spectrum, with different provinces and territories varying in the extent: (1) to which their governments subsidized accident benefits, and (2) to which the insured is entitled to claim additional damages through a tort claim.

  Pure No-Fault Benefits Hybrid Principally Tort-Based Benefits

Public Insurer

Manitoba   British Columbia
Hybrid Quebec Saskatchewan  
Private Insurer   Ontario

Alberta
New Brunswick
Newfoundland & Labrador
Northwest Territories
Nova Scotia
Nunavut
Prince Edward Island
Yukon

Table 1: A comparison of the various automobile insurance schemes in Canada

Private versus Public Automobile Insurance

Automobile insurance in British Columbia and Manitoba is provided through government-owned corporations.1 In Québec, la société de l'assurance automobile du Québec ("SAAQ") provides bodily injury insurance; however, insureds are required to purchase additional coverage for property damage. Similarly, Saskatchewan Government Insurance ("SGI") also provides coverage for some bodily injuries, but allows an insured person to purchase additional coverage for increased liability limits, as an example. All other Canadian provinces and territories have private automobile insurance systems.

No-fault versus Tort-Based Automobile Insurance

... a driver may be entitled to receive benefits regardless of whether they are at-fault ...

Designed to expedite the recovery process, "no-fault" automobile insurance refers to a regime in which an automobile insurer will pay certain benefits (such as medical benefits, attendant care, and weekly disability income) prior to determining liability. In other words, a driver may be entitled to receive benefits regardless of whether they are at-fault for a motor vehicle accident. With this regime, an injured deals with the relevant insurer directly.

Only Manitoba and Québec follow a pure no-fault system, meaning that parties cannot sue one another in a tort claim (usually negligence). Alberta, British Columbia, the Maritimes, and the Territories are at the opposite end of this spectrum. With the exception of certain limited no-fault accident benefits, these jurisdictions have fault-based systems permitting an injured party to bring a claim as against the parties that allegedly caused their injuries. Last, Ontario and Saskatchewan fall somewhere mid-spectrum. Ontario has a threshold no-fault system. There is an accident benefits system in place to deal with an injured party's claims promptly, as well as the possibility of a tort claim if damages meet a certain threshold. In Saskatchewan, the insured may elect accident benefits under either a no-fault system or a tort-based system.

AVAILABLE BENEFITS ACROSS CANADA

1. Alberta, British Columbia, Ontario, and Saskatchewan

The common link between these provinces is that entitlement to accident benefits is determined through insurance legislation and regulations, as well as province-specific case law.

1.1 British Columbia

British Columbia's statutory accident benefits regime is an add-on no-fault system that offers basic benefits without providing any exclusionary coverage provisions. The system is governed by the Insurance (Vehicle) Regulation ("IVR").2 As of April 1, 2019, applicants bringing claims of $50,000.00 or less are required to resolve them through an online dispute resolution tribunal.

Under the IVR, an applicant may receive medical and rehabilitation benefits of up to $300,000.00 per person,3 funeral expenses of up to $2,500.00,4 and death benefits (ranging from $500.00 to $5,000.00) for a head of household, a surviving spouse, and/or a surviving dependent.5 In addition, the IVR offers applicants income replacement benefits up to $300.00 per week up to 104 weeks, depending on their income.6 To receive income replacement benefits, the applicant must demonstrate that they are working for wages or profit, which means that they cannot already be receiving Employment Insurance benefits or Worker Compensation benefits.7

..."homemakers" may receive a maximum weekly benefit of $145.00 per week up to 104 weeks...

Although non-earner benefits are not available under the IVR, "homemakers" may receive a maximum weekly benefit of $145.00 per week up to 104 weeksAlthough non-earner benefits are not available under the IVR, "homemakers" may receive a maximum weekly benefit of $145.00 per week up to 104 weeks8 for "reasonable expenses incurred by the insured to hire a person to perform the household tasks on [their] behalf".9 A homemaker is defined as "a member of a household who, without payment, does the majority of the housekeeping for the household".10 The British Columbia Human Rights Tribunal has specified that an applicant's family member cannot be a homemaker, indicating that "if the household work is done by a family member, [then the applicant will have] have no incentive to settle their claim, since they effectively receive an income enhancement which they [will be self-interested] in prolonging."11

The IVR can extend the weekly disability benefit beyond the 104-week mark and for the applicant's entire duration of disability up to age 65.12 Notably, the British Columbia Court of Appeal in Symons v Insurance Corporation of British Columbia decided that applicants receiving disability benefits who recovered before the 104-week mark are still entitled to a reinstated benefit if they become disabled again after the 104-week mark.13

* In the interest of completeness, British Columbia has made legislative changes affecting the quantum of certain benefits since the time we completed research on this paper.

These changes are as follows:

  • Under section 4 of Schedule 3 to the Insurance Vehicle Regulation (“the IVR”), an insured person can obtain up to $7,500.00 in funeral benefits;
  • Death benefits, which are outlined under section 92 of the IVR, range from $3,000 to $30,000; and
  • The Insurance Vehicle Regulation offers income replacement benefits of up to $740 per week, while homemakers can obtain up to $280 per week.

1.2 - Alberta

Alberta's accident benefits are governed by the Automobile Accident Insurance Benefits Regulation ("AAIBR"),14 which provides benefits similar to those outlined in the IVR. With the exception of its medical and rehabilitation benefits (limited to $50,000.00 per applicant),15 the quantum of benefits provided by the AAIBR is higher than the IVR:

  • Income replacement benefits are calculated at 80% of the applicant's gross weekly wages (for a maximum of $400.00 per week) up to 104 weeks.16
  • The allotted funeral expenses are doubled;17 and
  • Death benefits range from $1,000.00 to $10,000.00.18

Unlike the IVR, the AAIBR provides non-earner benefits instead of homemaker benefits of $135.00 per week for a maximum of 26 weeks;19 however, the two benefits are arguably similar. According to the AAIBR, a non-earner is "an insured person who is 18 years of age or over and who is not engaged in an occupation or employment for wages or profit and is completely incapacitated and unable to perform any of the insured person's household duties".20

...the definition of accident does not include collisions arising from a suicide attempt, racing, or the illicit use of a vehicle.

In addition, the AAIBR outlines exclusionary provisions that further narrow the definitions of "accident" and "insured", suggesting that the AAIBR offers more limited coverage than the IVR. According to the AAIBR, an "insured person" excludes individuals that are "engaged in the business of selling, repairing, maintaining, servicing, storing, or parking automobiles at the time of the accident", individuals that regularly use another vehicle owned by someone at the same residence, and individuals that use their vehicle to carry passengers for compensation.21 Also, the definition of accident does not include collisions arising from a suicide attempt, racing, or the illicit use of a vehicle.22

The AAIBR also provides for its application in the other "no-fault jurisdictions" of Manitoba, Ontario, Québec, and Saskatchewan. If an applicant is involved in a motor vehicle accident any of the above-mentioned provinces, then their insurer is required to pay benefits in the amount prescribed in that province.23 Furthermore, the insurer cannot raise any of the above-mentioned exclusions and limitations, which are outlined in Schedule B of the AAIBR.24

1.3 - Ontario

Ontario's statutory accident benefits are governed by the Statutory Accident Benefits Schedule ("the SABS").25 The specific sections that determine accident benefits are outlined in Parts II to V.

To begin, Part II of the SABS discusses income replacement benefits, non-earner benefits, and caregiver benefits. Income replacement benefits are limited to the lesser of the applicant's gross weekly wages or $400.00 per week for the first 104 weeks.26 Non-earner benefits are limited to $185.00 per week.27 An insured party may also apply for caregiver benefits of up to $250.00 per person in need (and $50.00 for each additional person in need thereafter).28 Caregiver benefits, which are not included in the IVR or the AAIBR, are provided to a party who has suffered a catastrophic impairment and who is the primary caregiver for someone in need.29 Note that typically, the person in need of care must reside with the applicant, and the applicant cannot receive any remuneration for engaging in care; however, in L (V) v TD Meloche Monnex, the arbitrator decided that the issue of residence must be determined on a case-by-case basis to "reflect different family arrangement and dynamics".30 The applicant in that case, who lived in a separate house 900 meters away from his parents, was awarded caregiver benefits.

Part III of the SABS outlines medical and rehabilitation benefits, which are limited to $3,500.00, $65,000.00, and one million dollars for a minor injury, a non-catastrophic injury, and a catastrophic injury, respectively.31 Attendant care benefits (i.e., expenses that are incurred by or on behalf of an insured person for services provided by an aide/attendant or by a long-term care facility) are limited to either $3,000.00 or $6,000.00 per month, depending on whether the applicant is non-catastrophic versus catastrophic. Unlike the homemaker benefits provided for in the IVR, the SABS permits an applicant's family member to be reimbursed for providing care to the applicant; however, this family member must prove either: (1) that they are a professional health care provider who performed attendant care services in the course of employment that they would have been engaged but for the accident, or (2) that they suffered economic loss as a result of caring for the applicant.32

Other unique statutory accident benefits outlined in the SABS include the following (which are outlined in Part IV and Part VI of the regulation):

  • Optional dependent care benefit (for those who become injured while caring for others);33
  • Lost educational expenses of up to $15,000.00 (for students who are unable to complete their elementary, secondary, post-secondary or continuing education);34
  • Visitor expenses (for certain individuals wishing to visit the injured party during their recovery);35
  • Housekeeping and home maintenance services (for drivers having sustained a catastrophic impairment);36
  • Damage to clothing, glasses, and medical devices;37 and
  • Cost of examinations.38

...car surfing" is an example of something which would preclude an Alberta driver from claiming accident benefits in their home province, but not in Ontario.

Although there are some coverage exceptions in the SABS, the Ontario case law also defines important concepts such as "accident". For example, the Ontario Divisional Court in Charbonneau v Intact Insurance Company claimed that the "use or operation of an automobile" included a dangerous activity known as "car surfing" (whereby a person rides on top of or at the rear of a moving vehicle). Although this activity is illegal,39 the Divisional Court determined that it was sufficiently common as to fit within the SABS definition of "accident".40 In fact, "car surfing" is an example of something which would preclude an Alberta driver from claiming accident benefits in their home province, but not in Ontario.

According to Part V of the SABS, an applicant can receive up to $6,000.00 in funeral expenses,41whereas death benefits vary between $10,000.00 and $25,000.00 depending on whether the applicant is a surviving spouse, a surviving dependent, or the estate of the deceased driver.42 In Ontario, additional insurance coverage may be purchased to increase the amount of funeral and death benefits payable.

1.4 - Saskatchewan

In contrast to the above-noted regulations (the IVR and AAIBR in particular), Saskatchewan's The Automobile Accident Insurance Act ("AAIA")43 offers a variety of benefits that differ depending on whether or not the insured elected no-fault bodily injury benefits.

If an applicant selected the tort-based option (outlined in Part II of the AAIA), then they may receive up to $20,000.00 in medical and rehabilitation benefits;44 $5,000.00 for funeral expenses;45 and death benefits extending to the deceased's spouse, dependents, and estate (if there are no surviving relatives).46 The AAIA also offers tort claimants income replacement benefits and homemaker benefits in the amount of $396.00 per week ($198.00 for partial disability) for up to 104 weeks.47 Benefits that are unique to the AAIA include the following:

  • Benefits for relapse of bodily injury;48
  • Benefits for applicants who are specifically confined to a wheelchair or bed as a result of their injuries;49 and
  • Permanent impairment benefits (which increases with the severity of the applicant's injuries).50

However, if the applicant selects the no-fault option under the AAIA, then they will be entitled to receive significantly higher amounts of benefits. Medical and rehabilitation benefits are capped at $5,000,000 for each accident in which a person suffers bodily injury51 and income replacement benefits are calculated at 90% of the applicant's net income.52 If an applicant does not qualify for the income replacement benefit, then they may also apply for non-earner benefits, substitute worker benefits, family enterprise benefits, and various weekly benefits for students.53

2. Manitoba

Unlike the above-mentioned provinces, Manitoba's The Insurance Act54 is relatively silent regarding its statutory accident benefits. In fact, accident benefits are only briefly mentioned in subsection 265(1) of The Insurance Act:

"Where in a contract an insurer provides accident insurance benefits in respect of the death of, or injury to, an insured person arising out of an accident involving an automobile, the insurance applies only in respect of,

(a) any person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and

(b) the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the named insured who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the policy for the purposes of the insurance."

This plan is adjusted on an annual basis based on either the Consumer Price Index or the Manitoba Average Industrial Wage.

In Manitoba, statutory accident benefits are further specified under the provincial "Personal Injury Protection Plan". This plan is adjusted on an annual basis based on either the Consumer Price Index or the Manitoba Average Industrial Wage.55 As of March 1, 2019, the weekly benefits available to applicants include caregiver benefits (ranging from $465.00 to $611.00), death benefits (ranging from $14,310.00 to $492,500.00 depending on whether the applicant is a spouse, disabled dependent, and non-dependent child or parent), and funeral expenses (up to $8,758.00). Similar to Ontario, Manitoba also offers benefits for lost education expenses. Specifically, applicants may obtain a lump sum indemnity for each school year not completed anywhere between kindergarten and post-secondary studies.

Other statutory accident benefits unique to Manitoba include care expense reimbursements from $120.00 to $242.00 (which is determined based on the number of dependents in need of care), personal assistant expenses (up to a monthly maximum of $4,818.00), expenses to pay for hired help for a family business (up to a weekly maximum of $802.00), meal allowances (up to a daily maximum of $46.12), critical care attendance (up to a maximum of $4,771.00), and leisure and recreational activities for parties with permanent impairments or catastrophic injuries (which is determined based on the injury and is provided for up to two years).56

3. Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland & Labrador

Each of the Maritime Provinces offers near identical accident benefits, with the exception of Newfoundland and Labrador. In fact, Newfoundland and Labrador are considered to offer the least amount of accident benefits to its residents, as insureds are required to purchase additional coverage for most benefits. Unlike the above-mentioned jurisdictions, the Maritime Provinces' accident benefits are not governed by legislation, but rather the provisions of their respective Standard Automobile Insurance Policies.

The Maritime Provinces offer up to $50,000.00 in medical and rehabilitation benefits (an optional purchase of $25,000.00 in Newfoundland).57 Funeral expenses are limited to $2,500.00, with Newfoundland having the option to purchase this benefit up to a limit of $1,000.00.58 Income replacement benefits are limited to $250.00 per week for 104 weeks (with Newfoundland having the option of purchasing a benefit of $140.00 per week). None of the Maritime Provinces has non-earner benefits, although there are homemaker benefits in the amount of $100.00 per week ($70.00 per week for Newfoundland).59 Death benefits are limited $25,000.00 (with Newfoundland having the option of purchasing a benefit of up to $10,000.00).60

4. The Canadian Territories

The Canadian Territories are similar to the Maritime Provinces in that the Yukon, the Northwest Territories, and Nunavut regulate their accident benefits through a standard policy (specifically under "Section B"). For each territory, an applicant can claim up to $10,000.00 in medical benefits,61 $2,000.00 in funeral expenses,62 and death benefits ranging between $1,000.00 and $10,000.00 (depending on the age of the applicant).63 In addition, the territories offer a weekly income replacement benefit of up to $300.00 (for 104 weeks) and a weekly non-earner benefit of up to $100.00 (for 26 weeks).64

* In clarification regarding the territories, it should be noted that:

  • The Yukon has a medical and rehabilitation benefit limit of $10,000, whereas Nunavut and the Northwest Territories have limits of $25,000 under their standard automobile policies.
  • Furthermore, the funeral benefits are $2,000 in the Yukon and $1,000 in Nunavut and the Northwest Territories.
  • Death benefits do in fact range from $1,000 to $10,000 across the territories, depending on such factors as the status of the deceased at the time of the accident (including their age and position within the household) and the number of dependants, as examples. It is best to consult the specific standard automobile policy, as there are considerable differences within this range based on the particular policy and the factors we have outlined.
  • Regarding income replacement benefits, the Yukon has a weekly benefit of 80% of the insured's gross income, but in any event, no less than $100 and no greater than $300. Nunavut and the Northwest Territories have a weekly benefit of $140 (or 80% of the insured's gross income, less any applicable statutory deductions for, as an example, collateral benefits).
  • There is also a weekly non-earner benefit of $100 in the Yukon and a weekly housekeeping benefit of $100 in Nunavut and the Northwest Territories.

5. Québec

Although Quebec does not fall under the common law regime in Canada, its automobile insurance and statutory accident benefits schemes are worth a brief comment. As previously mentioned, automobile insurance in Quebec is primarily funded by the SAAQ, which is a crown corporation. The maximum limits for medical and rehabilitation benefits vary depending on the type of treatment.65 Funeral expenses are limited to $ 5,377.00,66 and death benefits can range anywhere between $ 57,510.00 and $ 382,500.0067 (depending on the applicant's relationship with the deceased). Income replacement benefits and non-earner benefits are available up to the lesser maximum of $76,500.00 or 90% of the applicant's gross annual wages, and minimum wages, respectively.68

PRACTICE TIPS

Lawyers who provide coverage opinions and who litigate cross-border cases will want to be aware of certain considerations.

Drivers and insured persons who travel outside of their own jurisdiction may wonder how accident benefits apply in other parts of Canada. The above sections provide an overview of the different systems and the benefits available; however, there may be specific questions about how to deal with claims and accidents from a legal perspective. Lawyers who provide coverage opinions and who litigate cross-border cases will want to be aware of certain considerations. The following, non-exhaustive list includes practice points that lawyers should consider when dealing with cross-border cases. The list is purposefully general to allow for potential differences in the applicable legislation, case law, and legal documents:

  • Obtain a copy of the motor vehicle accident report. Be sure to have a clear sense of where the accident occurred (especially if it is close to a provincial border).
  • Obtain copies of any relevant automobile insurance policies. Consider whether an applicant has coverage under a policy issued in a different province, or whether they had coverage under a rental policy issued in the province where the accident occurred, for example. Insured drivers will often rent vehicles for long distance driving and/or in combination with air travel, and will purchase insurance accordingly.
  • For accident benefits applications, note that an election process may be available to an applicant. For example, an applicant may be able to elect accident benefits of the level and kind provided by the province where the accident occurred (as opposed to the province where their automobile insurance policy is issued). Specific legislation, Powers of Attorney and Undertaking, and interprovincial agreements may also provide for this outcome.
  • Be sure to commence a court application or action in the appropriate jurisdiction (in tort cases, it is where the accident occurred). Be aware of what substantive law applies and what procedural law applies.
  • Consider whether to involve local counsel, who may be able to provide a legal opinion on the applicable substantive law or procedural law. Counsel may also be able to assist with key steps in the litigation process, including serving and filing court materials, commissioning of documents, appearances and/or enforcement.

  1. Automobile insurance is provided by the Insurance Corporation of British Columbia and Manitoba Public Insurance, respectively.
  2. BC Reg 447/83.
  3. Supra note 2 at Schedule 3, s 3(2). This quantum represents a recent amendment to the Insurance (Vehicle) Regulation and represents all accidents occurring on or after January 1, 2018. Prior to this date, medical and rehabilitation benefits were limited to $150,000.00 per person.
  4. Supra note 2 at Schedule 3, s 4(b).
  5. Supra note 2 at Schedule 3, s 5.
  6. Supra note 2 at 80(1).
  7. Lancaster v Insurance Corp of British Columbia, 2001 BCSC 927 at para 13.
  8. Supra note 2 at Schedule 3, 2(b).
  9. Supra note 2 at 84(1).
  10. Supra note 2 at 78.
  11. Vukmanovic v ICBC, 2011 BCHRT 318 at para 41.
  12. See BC Reg 447/83, s 86.
  13. 2016 BCCA 207 at para 26.
  14. Alta Reg 352/1972.
  15. Supra note 14 at section B, subsection 1, (1).
  16. Supra note 14 at part II, "amount of weekly benefit".
  17. Supra note 14 at subsection 2, part 1.
  18. Supra note 14 at subsection 2, part 1.
  19. Supra note 14 at part II, "amount of weekly benefit", (1).
  20. Ibid.
  21. Supra note 14 at "special provisions, definitions, and exclusions of section B", (1).
  22. Supra note 14 at "special provisions, definitions, and exclusions of section B", (2).
  23. Supra note 14 at subsection 2(a).
  24. Ibid.
  25. O Reg 34/10.
  26. Supra note 25 at s 7.
  27. Supra note 25 s 12.
  28. Supra note 25 s 13.
  29. Supra note 25 s 13(1).
  30. 2016, LAT Docket 16-000308/AABS at para 16.
  31. Supra note 25 at s 18.
  32. Supra note 25 at 3(7)(e)(iii).
  33. Supra note 25 at 29.
  34. Supra note 25 at 21.
  35. Supra note 25 at 22.
  36. Supra note 25 at 23.
  37. Supra note 25 at 24.
  38. Supra note 25 at 25.
  39. "Car surfing" contravenes section 178 of the Highway Traffic Act.
  40. 2018 ONSC 5660 at 13.
  41. Supra note 25 at 27.
  42. Supra note 25 at 26.
  43. The Automobile Accident Insurance Act, RSS 1978, c A-35.
  44. Supra note 43 at 21(3). This amount increases to $150,000.00 per person for catastrophic injuries.
  45. Supra note 43 at 27.4.
  46. Supra note 43 at 27.
  47. Supra note 43 at 22 – 241.
  48. Supra note 43 at 24.2.
  49. Supra note 43 at 25.
  50. Supra note 43 at 28.
  51. Supra note 43 at 112(3).
  52. Supra note 43 at 112(3).
  53. Saskatchewan Government Insurance "Your Guide to No Fault Coverage" (2019).
  54. The Insurance Act, CCSM 1987, c I-40.
  55. Manitoba Public Insurance, "PIPP Benefits" (March 1, 2019).
  56. Ibid.
  57. New Brunswick Standard Automobile Policy, Newfoundland Standard Automobile Policy , Nova Scotia Standard Automobile Policy, Prince Edward Island Standard Automobile Policy.
  58. Ibid.
  59. Ibid.
  60. Ibid.
  61. Yukon Standard Automobile Policy, Northwest Territories Standard Automobile Policy, Nunavut Standard Automobile Policy.
  62. Ibid.
  63. Ibid.
  64. Ibid.
  65. Gouvernement du Québec, "Private Health Care Covered by the Public Automobile Insurance Plan" (2019).
  66. Gouvernement du Québec, "In The Event Of a Death in a Traffic Accident" (2019).
  67. Ibid.
  68. Gouvernement du Québec, "Income Replacement Following A Traffic Accident" (2019).

TORONTO | OTTAWA | KITCHENER | BARRIE | LONDON

416.86001 | mccagueborlack.com | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

clcnow.com | harmonie.org