No – Fault Insurance Injustice
Every now and then, I have a discussion with people about the merits of no-fault insurance. The argument goes that if we only had no-fault, we would save a lot of time and money in not fighting over the damages in each case. Some people believe that the fault based system is an industry designed purely for lawyers to make money. While I can see how this impression can be arrived at, I strongly disagree. I see my colleagues every day fighting the good fight for people, and most of the time substantially improving their clients’ lives. Quebec is an example of a no-fault jurisdiction. The case discussed below is a good example of the alternative system.
Here is a prime example of the injustice that can occur because of no-fault insurance. In 2006, 27 year old Gabriel Rossy was killed by a tree which was rotten and fell on his car. There was evidence suggesting negligence by the City which could have caused the rotten tree to fall – suggesting that if some action was taken by the City, the tragic accident could have been avoided.
In British Columbia, the family of this man would have the right to bring a number of claims, including an ICBC claim, a wrongful death claim, and a claim against the City. However, the Supreme Court of Canada recently ruled that the Quebec No fault insurance scheme barrs any claim that involves a motor vehicle accident in this manner.
Each case must be considered on its facts. However, at a minimum, an accident arising out of the use of a vehicle as a means of transportation will fall within the definition of “accident” in the Act and will therefore be “caused by an automobile” within the meaning of the Act. Any civil action in connection with the damage caused by that accident will be barred and victims will have to file a claim with the Société de l’assurance automobile du Québec.
Thankfully, in BC we have the right to bring a claim in the courts for appropriate damages. We also have a rough upper limit cap on damages, which addresses any concerns that damages will run rampant like some jurisdictions in the United States.