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Kingston, Ont. last summer get the $300,000 in benefits Bellemare believes they are entitled to under Quebec's no-fault public insurance system, it would mark a new high, or low. "Crime pays in Quebec," says the longtime anti-no-fault crusader, who went into politics in 2003 with the express goal of modifying the system but quit cabinet a year later when the Liberal government failed to act. "When it comes to indemnities, as long as a motor vehicle is involved, people here can get away with murder." Such an absurd scenario wouldn't be possible elsewhere in Canada, since no other province or territory — or American state for that matter — has a pure no-fault auto insurance regime quite like Quebec's. But as many jurisdictions across the country consider legislation, or calls for legislation, to introduce, repeal, or tinker with no-fault laws or complex no-fault systems like thresholds, deductibles, caps, and combinations, it is indicative of both the problems and the passions raised by an insurance system that provides benefits to all accident victims, regardless of fault, while restricting or denying the rights of innocent victims to sue reckless drivers who are responsible for their injuries. "There are a lot of good things about a no-fault system," says Bellemare. "But the bad things outweigh them, especially when permanent disabilities are involved." Debate over the merits of no-fault insurance is not new. First elaborated in Saskatchewan in 1947 as a way to settle accident claims faster than the traditional tort liability system — reducing court and legal costs in the process and leading, so the theory goes, to lower premiums — it has been adopted by two provinces (Quebec and Manitoba) and 17 U.S. states since the 1970s. From the get-go, however, no-fault has been fiercely opposed in many jurisdictions by coalitions of trial lawyers, consumer, and community groups, including those that represent people with disabilities, mostly for limiting or denying the rights of innocent victims to pursue claims in court. As a result, Manitoba and six states have either repealed or limited parts of their comprehensive no-fault systems, and no province or state has adopted a no-fault system since the early 1980s. All provinces, however, have cherry-picked from the no-fault tree in recent years by developing accident benefits that provide coverage according to intricate sets of rules which vary in complexity from province to province. No two provinces, for example, offer the same coverage for medical and rehabilitation treatments, funeral expenses, loss of income, or economic losses for people who are injured or killed in motor vehicle accidents. As a general rule, the difference comes down to the weight accorded in each province to a person's right to sue for pain and suffering versus "When it comes to indemnities, as long as a motor vehicle is involved, people here can get away with murder." — Marc Bellemare the limitations placed on those rights by the no-fault system (or access to accident benefits). "It's always difficult to balance the rights of the innocent with the need for first-party compensation," says Dale Orlando, a Toronto plaintiffs' lawyer and president-elect of the 1,100-member Ontario Trial Lawyers Association. "That's especially true when catastrophic injuries are involved." That balance, he warns, is being thrown increasingly out of whack in places like Ontario, which has a hybrid system that allows people to bring a tort action to sue for pain and suffering or future loss of income injuries provided they meet stringent conditions. One is the need for people to reach the claims threshold by satisfying a judge that the injuries they sustained in an accident have left them with permanent and serious physical and/or cognitive impairments. If they are unable to do that, they are not entitled to compensation. If they can, they then face a head-on collision with the province's $30,000 deductible on the $100,000 maximum amount that is set for pain and suffering (more in cases deemed catastrophic that require lifelong care benefits) according to payment tables (known as "meat charts") that set out the indemnities for all imaginable injuries. "It's a double whammy," says Orlando. "That's a sizeable amount of money, when you keep in mind that a brain- damaged quadriplegic might be awarded a total of $330,000." In addition to being too excessive, Orlando believes the deductible is a significant barrier for access to justice because it eliminates most cases involving minor injuries. At the same time, the many updates, changes, and amendments made to Ontario's no-fault insurance system since it was introduced in 1990 are driving many plaintiff lawyers in the province to distraction. "A car accident isn't rocket science — but understanding what benefits accident victims are entitled to sure is," says Brian Goldfinger, a personal injury lawyer and blogger. He laments, for example, the myriad forms and paperwork people, many of them immigrants with a tenuous grasp of English or French, need to fill out just to get the claim process started. "It's sad for clients and lawyers," says Goldfinger. "The Canadian Charter www. C ANADIAN Law ye rmag.com FEBRU AR Y 2010 31