The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50811
no-fault and tort coverage for auto injury insurance. "I think we've struck a good balance," says McIntyre, a litigator who has worked both sides of the personal injury fence. Though no-fault benefits were first introduced in the province in 1948 — the first place in the world to do so — as an add-on to the tort system, he says the introduction of a full-blown no-fault regime in 1995 "radically changed the landscape." Since then, numerous revisions have given the roughly 6,000 people who make new claims every year in the province "a relatively simplified choice" between comprehensive no-fault benefit packages and tort coverage that covers some expenses for injured people and, in the event someone else is found responsible for the accident, the ability to sue for pain and suffering and other expenses. "People here seem satisfied," says McIntyre, who says SGI has a customer satisfaction rating of around 90 per cent. "We don't get a lot of complaints." The spokesman for Manitoba Public Insurance, which runs the province's pure no-fault program (called the Personal Injury Protection Plan or PIPP) says much the same. "Manitobans love [no-fault]," says Brian Smiley, a media relations co-ordinator with MPI, which was introduced in 1994 and is modeled on Quebec's system. According to Smiley, lawyers' fees accounted for roughly one third of the payments meted out by the courts under the province's old tort system. "Lawyers were opposed to no-fault because they weren't involved in the system," he says. "But the system has proven itself. We have some of the lowest insurance premiums in Canada [and] we get consistently high ratings from consumers groups." A big reason for that satisfaction, adds Smiley, is that Manitoba has continued to refine and streamline its no-fault scheme, which received nearly 17,000 claims for bodily injury related to motor vehicle accidents and paid out $208 million in benefits in 2008. One notable change was a modification in the province's insurance law two years ago that prevents spouses from receiving death benefit payments if they are found criminally responsible for the accident that caused the death. Enacted following a review of a crash in which the wife of a drunk driver died in an accident he caused, and for which he received death benefits, the changes direct payments instead to the estate of the deceased or the executor of his or her will. In terms of injuries, too, injured spouses and children get all entitled benefits for everything from rehabilitation and living needs to grief counselling and home renovations, while those found to be criminally at fault get only partial payments. For its part, Quebec has stubbornly resisted making similar changes to its pure no-fault regime, enacted in 1977 by the first Parti Québécois government under René Lévesque. According to Claude Gélinas, a lawyer for the past 23 years and now vice president of legal "[The IBC] says it is losing money so it wants to pay less. But the result is the gradual erosion of no-fault rights in Ontario without a return of the right of innocent victims to pursue claims in court." — Dale Orlando affairs for the Société de l'assurance automobile du Québec, which runs the province's no-fault system, the issue of payments to the criminally responsible has been debated often — but never acted upon legislatively. "The basic question or principle is whether we should simply compensate events, which we do, or be selective," says Gélinas, who adds that payments to people found criminally responsible for the accidents in which they and others are injured or killed represent only a fraction of the $1 billion the SAAQ pays out in indemnities each year. "If we make modifications and open it to court challenges it could be detrimental to the regime itself." Bellemare calls that poppycock. While lauding the avoidance of long and costly lawsuits and the expedient settlement and payment of small claims under no-fault — though he believes the system can be sped up through the elimination of "stupid review boards that always side with the government insurer [and] drag files for two or three years" — he says a few minor changes to Quebec's auto insurance law would put an end to what he calls "a moral and legal injustice" in pure no-fault schemes. They could include the legal redefinition of an accident, and the rewording and addition of a fifth exemption to s. 10 (modifications he says he proposed as justice minister to Premier Jean Charest, whose refusal to present them to cabinet prompted Bellemare's abrupt departure from politics). "No law should protect a criminal from the consequences of their crime and no lawyer should have to tell their client that they have been victims of a crime but they can't sue," he says. "The first step of social and psychological rehabilitation is justice — then money. But with the way our courts tap criminals on the wrists when motor vehicles are involved [and] the limits no-fault puts on innocent victims, if your daughter is killed or permanently disabled by a drunk driver in Canada, you don't get either." www. C ANADIAN Law ye rmag.com FEBRU AR Y 2010 35