Your Questions Answered (FAQ)
On May 1, 2021, the government of British Columbia dramatically changed how ICBC works. Instead of a negligent driver being responsible for the harm that they cause to an innocent victim, ICBC is now a No Fault insurer. This means that fault for the accident is irrelevant; both the victim and the negligent party are entitled to the same schedule of benefits following an accident. It will operate much more like WorkSafe BC with an individual adjuster in charge of your rights.
No fault means that if you are injured in a car collision by a reckless driver, that driver is entitled to the same schedule of benefits as you.
A no fault system also means that seriously injured individuals will have a lifelong relationship with ICBC. Rather than having their case resolved with a fair settlement that allows the individual to decide what care they need and when No Fault requires the individual (or their family) to go back to ICBC week-after-week, month-after-month, year-after-year, seeking needed care or wage loss benefits that will often be insufficient.
If the insurance adjuster refuses to pay for needed care or wage loss benefits — for example, by alleging you had a “pre-existing condition” — you are left with no meaningful recourse to challenge that decision through an independent court.
No fault schemes result in less damages being paid to those injured on our roads. No damages are paid for pain and suffering. Wage loss benefits are limited and will not cover your actual loss.Your care costs are covered only to the extent that your care providers are prepared to accept ICBC’s rates. With No Fault, individuals don’t receive damages paid once as a lump sum so they can move on with their lives. Instead, compensation is rationed at the control and direction of an ICBC adjuster.
For the purpose of compensating for injuries, “no fault” insurance ignores who causes a collision and treats “fault” as irrelevant. If there is a collision involving a vehicle causing injury, ICBC, as the insurance monopoly in British Columbia, has total control over everything including if, when, how much, and for how long an injured party gets coverage for their treatment and benefits.
Some studies do show that collision and fatality rates are increased in no fault insurance jurisdictions. At-fault drivers are entitled to not just the same compensation as injured parties, the only deterrent to bad driving behavior may be increased premiums.
The government’s “no fault” promise that victims can still sue “criminally convicted” motorists like drunk drivers is misleading.
In British Columbia, most collisions are caused by careless driving, not criminal conduct.
It is only in the rarest of circumstances that a motorist is charged and convicted for a criminal driving offense, most such charges are plead down to traffic offenses or discharged after good behavior.
Most importantly, even if the at-fault driver is convicted of a criminal offense, No Fault still gives that criminal immunity for your wage losses and your care costs. The exception only applies to “non-compensatory” damages.
If ICBC offers you an unfair settlement, you have no right to sue for damages in court and have an independent judge or jury decide what is fair. Through Canada’s constitution, courts are independent from the government. Instead, the proposed no fault insurance scheme forces you to appeal to entities that are hired and fired by the government, like the ICBC’s own fairness commissioner, the government’s online Civil Resolution Tribunal (CRT), or an ombudsperson.
In no fault, you must apply for benefits, and you are not awarded one-time lump sum damages. This means that only people who can afford to pay a lawyer by the hour will have legal representation to challenge ICBC decisions, which will result in two-tier justice, one system for the wealthy and one for everyone else. The overwhelming majority of British Columbians will be forced to deal with ICBC on their own for weeks, months, years, or indefinitely, depending on how serious their injuries are.
British Columbians and their doctors and other caregivers already have lots of experience with no fault insurance through their interactions with WorkSafeBC and some other disability insurers. Like WorkSafeBC, under no fault auto insurance, individuals who are in need of care will be forced into a potentially lifelong relationship with ICBC.
Many or most of the individuals who have long-term injuries are not in a position to advocate for themselves. Individuals struggling with physical and psychological injuries will be largely on their own. The government itself says that 700,000 of us don’t even have a regular family doctor in our corner.
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An Occupational Therapist’s Perspective
Compared to vehicle occupants, pedestrians, cyclists and motorcyclists are the most vulnerable users on our roads and they often suffer more severe injuries, harms and losses when they are involved in collisions. No fault affords no special protections for vulnerable road users. Cyclists, pedestrians and motorcyclists are disproportionately impacted by the shortcomings of no fault because they are more likely to suffer serious injuries than vehicle occupants.
- Vulnerable British Columbians. Any British Columbian with a pre-existing disability is at risk for discrimination on the basis that ICBC could deny wage loss or treatment on the allegation that the collision did not “cause” or make worse physical or mental health injuries. Under our current system the law protects the vulnerable and makes the at-fault driver pay damages for all the harms and losses they cause, even if the harms and losses are unique or more severe for a vulnerable British Columbian with a pre-existing disability.
- The unemployed. Unemployed British Columbians will not be entitled to any wage loss benefits unless the individual can prove that they would have had employment but for the collision (for example, by showing that they were about to start a new job or had a promise of employment). Otherwise, someone unemployed at the time of a collision will be treated as though they would have been unemployed forever.
- People who are not participating in the labour force—including parents of young children. If the person was not in the labour force at the time of the collision (not working and not looking for work), they will not be entitled to wage-loss benefits. There are many reasons one might not be participating in the labour force at a given time, but still have the intention to return to the labour force in the future (parenting, extended vacation, nonpermanent disability, et cetera). People who are not participating in the labour force will not be entitled to a wage loss under the new ICBC scheme.
- Students. If you are injured while you are still young and/or a student, you will not have reached anywhere close to your full earnings potential. These individuals will have their future income benefits based on their existing earnings history which may be very minimal. Future benefits, if any, will be based on “average” earnings within the province and not take into account the earnings potential of the individual.
- Young people. Wage-loss benefits for these people will be based on their earnings at the time of the collision. As a person gains experience their wages increase. Young people will be locked in to a wage-loss benefit that is sure to under-represent their earning capacity and potential.
- Part-time workers (including parents or guardians of young children). Again, there are many reasons a person might choose to work part-time at any given time in their career, but fully intend to return to full-time work in the future.
- High earners. The new scheme will only compensate for wage loss up to about $93,000 per year. Those who earn more than this amount will be under-compensated.
- Women and minorities. Women and minorities experience a discrimination-based wage gap. In 2018, women earned 13.3 percent less per hour than men. Under the current system compensation for wage loss takes into account historical and current discrimination. However, the wage benefit under the new ICBC scheme will be based on this existing discrimination.
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The Yukon, Alberta, Ontario, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland do not have no fault insurance. All of these provinces have private insurance companies that compete against each other for customers. All of these provinces have restrictions or “caps” on compensation for less serious injuries but you can still sue at-fault drivers for damages and if you think the insurance company is treating you unfairly, you can sue in court and have your case decided by the court. None of these provinces force you to appeal to a non-arm’s length tribunal that is hired and fired by the government.
While Quebec has private insurers, it also has a no fault insurance scheme which is unique in Canada because of its system of civil justice, unlike the rest of Canada’s common law jurisdictions.
The only other no fault jurisdictions in Canada are Saskatchewan and Manitoba, both of which, like B.C., have government-run monopolized auto-insurers with no insurance market competition. However, in Saskatchewan, individuals are given the choice to buy their own insurance to recover full damages for all their harms and losses. In B.C., no fault insurance is mandatory for everyone with no choice option.
The 2016 census indicates that about 23,500 people work in BC law offices. About 9,300 are lawyers and 14,200 more are support staff. Support staff are predominantly women – about 90%. Statistics from the Law Society show 2,461 lawyers were practicing motor vehicle litigation.
When the full weight of no fault is enacted and felt across BC, somewhere between 4,000 and 10,000 people may find themselves out of work, the overwhelming majority of them being women in legal support services. With average full-time earnings of about $65,000, these are above average paying jobs. Even more work as legal assistants, with average full-time salaries of around $55,000. These are good paying jobs at risk and not easily replaced.
Following the implementation of no fault, there will be significant losses of private sector jobs in the short-term. In the long-term, many of these lost private sector jobs may transition to public sector jobs as ICBC itself becomes a far bigger bureaucracy. Much of the savings may prove short-lived.