In July of 2020, a client was a passenger in an Uber in the Province of British Columbia. Suddenly and without warning, either the Uber driver reversed into the vehicle behind them or the vehicle behind them rear ended the Uber. This article, Ontario Passenger Injured in British Columbia Motor Vehicle Accident, is based on research on the applicable British Columbia laws as they apply to motor vehicle collisions.
British Columbia operates a universal compulsory automobile insurance scheme known as “Autoplan” administered by the Insurance Corporation of British Columbia (ICBC). As a passenger injured in a BC licensed motor vehicle, the client has two options for filing a claim: No fault claim and Tort claim.
ICBC No-Fault Claims
Similar to Ontario, under ICBC Basic insurance, Accident Benefits are available to anybody in BC who is injured in a motor vehicle accident, no matter who is responsible. The client meets the definition of “insured” under Part 7 of the Insurance (Vehicle) Regulation as a passenger of a licensed vehicle who suffered injuries in a motor vehicle accident and has the right to file a claim for no-fault benefits despite not being a BC resident. No-fault benefits include: Wage Loss Benefits, Homemaker Benefits and Medical and Rehabilitation Benefits.
Wage Loss Benefits
- Regulation 80 of the Insurance (Vehicle) Regulation provides for payment of wage loss benefits if an accident and injury prevents a person from working. To qualify for wage loss benefits a person must have either been employed at the time of the accident or have worked at least 6 months of the immediately preceding the accident.
- Eligible insured persons can collect either 75 percent of their average gross weekly earnings or $740 per week whichever is less, for the length of the disability or 104 weeks, whichever is shorter. If at the end of the first two years, the total disability continues, an insured can continue to receive the payments for the duration of the disability or until the age of 65, whichever is shorter.
Homemaker Benefits
- Regulation 84 of the Insurance (Vehicle) Regulation provides benefits to a homemaker whose injuries prevent him or her “substantially or continuously disables the insured from regularly performing most household tasks.” 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. While Regulation 2 (84) specifically says there is no compensation for household tasks performed by an insured’s family members, the British Columbia Supreme Court in the 1992 case Watson v ICBC held that if the family member did not reside with the injured person before the accident and comes in specifically to help after the accident, then ICBC must pay.
- The maximum coverage available is $280 per week for the length of the disability or 104 weeks, whichever is shorter.
Medical and Rehabilitation Expenses
- Under Regulation 88(1) of the Insurance (Vehicle) Regulation, ICBC is required to pay for all “reasonable” and “necessary” medical and rehabilitation services to a limit of $300,000. As of April 1, 2019, ICBC is only be required to pay for the following treatment types:
- Receipts for the expenses incurred must be provided no later than 60 days from the date that those expenses are incurred. ICBC is not liable for expenses that may be claimed under other insurance policies, medical or hospital plans.
Tort Claims
The client’s tort claim would be governed by BC law as that is where the motor vehicle accident occurred. The Supreme Court of Canada provided in Tolofson v Jensen, 1994 CanLII 44 (SCC), [1994] 3 SCR 1022 that the law to be applied in tort is to be governed exclusively by the law of the place where the wrongful activity occurred. The rights of the parties are determined by the substantive law of the foreign jurisdiction whereas all matters of procedure are governed exclusively by the law of the forum.
The Limitation Period is 2 years. As part of the regular vehicle licensing procedure, every owner of a licensed motor vehicle is required to purchase the ICBC Basic Autoplan which covers up to $200,000 of their injury cost for any one accident.
Damages
It is possible to sue for medical treatment beyond the $300,000 limit of the ICBC Accident Benefits coverage and for wage loss beyond the $740 per week limit of the ICBC Accident Benefits coverage. The quantum of damages must be reduced by all no-fault benefit payments which the Plaintiff actually received or was entitled to receive from the ICBC. It is also possible to sue for pain and suffering.
Threshold
If an injury is determined to be minor, then compensation for the pain and suffering for accidents is limited. A minor injury is defined in s. 7 of the Insurance (Vehicle) Act as: sprains, strains, general aches and pains, cuts, bruises, road rash, persistent pain, minor whiplash, temporomandibular joint disorder or TMJ (pain in jaw joint and in the jaw muscles), mild concussions, short-term mental health conditions.
If the injury causes serious impairment for more than 12 months, it may no longer be considered minor and may not be subject to the payment limit. In the case of concussions or mental health conditions, the limit on pain and suffering may not apply if there is incapacity beyond 16 weeks.
Sources
Insurance (Vehicle) Act, RSBC 1996 Ch 231, online: https://www.bclaws.ca/civix/document/id/complete/statreg/96231_01#part1
Insurance (Vehicle) Regulation, BC Reg 447/83 online: https://www.bclaws.ca/civix/document/id/crbc/crbc/447_83_multi
