(Public) Auto Subrogation In Canada

ICBC (Insurance Corporation of British Columbia) www.icbc.com Crown Corporation operating March 1974 Governing Legislation Insurance Corporation Act, R.S.B.C. 1996, c. 228 Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231

SGI (Saskatchewan Government Insurance) www.sgi.sk.ca Crown Corporation operating April 1946 Governing Legislation The Automobile Accident Insurance Act, R.S.S., 1978, c. A-35

MPI (Manitoba Public Insurance) www.mpi.mb.ca Crown Corporation operating November 1971 Governing Legislation The Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215

SAAQ (Societe de l’Assurance Automobile du Quebec) www.saaq.qc.ca Government Corporation established 1977 Governing Legislation An Act respecting the SAAQ, R.S.Q., c. S-11.011 Automobile Insurance Act, R.S.Q., c. A-25

DIFFERENCES BETWEEN PUBLIC SCHEMES

Differences PD BI BC No-fault Tort SK No-fault (‘95) & Tort (‘03) MB Jurisdiction PD BI BC No-fault Tort SK No-fault (‘95) & Tort (‘03) MB No-fault (‘94) QC Private

HOW THE PUBLIC SCHEME WORKS

Physical Damage Generally, there is no-fault first party coverage. Insured may sue for uninsured portions or determination of liability.

In British Columbia you may sue. Bodily Injury Manitoba and Quebec entitled to no-fault compensation no law suits. Saskatchewan may sue if your gross income exceeds the no-fault amount since 2003 may sue if you opted out of no-fault. In British Columbia you may sue.

SUBROGATION WITHIN SCHEME

Physical Damage Subrogation Generally, upon payment of damage claim, or upon accepting liability to pay, the public insurer is subrogated to and an assignee of all the insured’s rights of recovery from a liable third party. BC – s. 84 SK – s. 80 MB – s. 26

Bodily Injury Subrogation In no-fault provinces the public insurer is entitled to bring an action against a liable non-resident to recover the amount of no-fault compensation paid to the extent they are responsible for the accident. SK – s.111 MB – s.77 QC – s.83.61

No-fault Recovery in Manitoba Subrogation re accident in Manitoba involving non-resident 77(1) Notwithstanding section 72 (no tort actions), where a person is entitled to compensation under this Part in respect of an accident that occurred in Manitoba, the corporation is subrogated to the person’s rights and is entitled to recover the amount of the compensation (a) from any person who is not resident in Manitoba, to the extent that the person is responsible for the accident;

No-fault with a Tort Twist “ [P]ursuant to subsection 77(1), the Legislature has chosen to reinstate the right of suit and to subrogate MPIC to the rights of the victim recipient of compensation. The rights which that victim would have had are the common law rights to sue the wrongdoer in tort which encompasses the right to recover compensation for his/her bodily injuries subject to proof of liability and to the principles of remoteness, foreseeability and causation. “ MPIC v. University of Waterloo

MPIC v. University of Waterloo Still Twistn’ Section 77 provides MPI with a recovery action in tort from which damages MPI is entitled to keep the lesser of the amount payable in tort the amount of compensation actually paid MPIC v. University of Waterloo

SUBROGATION FOR OTHERS

Physical Damage Generally entitled to exercise subrogation rights to recover physical damage in each public insurer province.

Bodily Injury No subrogation for bodily injury in no-fault provinces and significantly limited in British Columbia due to reduction of liability legislation (see s. 83 Insurance (Vehicle) Act and Gurniak v. Nordquist [2003, SCC]).

ENFORCING SUBROGATION Negotiation between insurers predominates. Mediation on large recoveries worth the expense is an option either through private mediators or court appointed mediators. Litigation is also an option in either a small claims forum or in Court of Queen’s Bench on larger recoveries.

BOTTOMLINE Facts of specific cases aside, the rules for subrogation in the provinces with public auto insurance is rather straight forward and uncomplicated. Having said that, when in doubt or the stakes are high, consult a lawyer.

QUESTIONS??