Documentation:Torts/No-fault compensation schemes

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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No-fault compensation schemes
Publicly-run no-fault compensation schemes operate in some jurisdictions/contexts as an alternative to the court-based tort system. Under such schemes, accident victims generally cannot sue wrongdoers claiming compensation for personal injuries that they suffer. Instead, a government system provides comprehensive compensation and rehabilitation to "injured persons ... for their injuries without having to prove fault against any individual".[1]

New Zealand's no-fault accident compensation scheme

ACC New Zealand: Who we are
ACC New Zealand has created this informative video on their scheme.[2]

ACC Thinksafe advertising campaign
GRAPHIC CONTENT WARNING: This intense ad campaign run by New Zealand's ACC in the 1990s–2000s illustrates how in the absence of private rights of action, governments may have to be more proactive in encouraging safety through regulation and public awareness campaigns.[3]

New Zealand has a no-fault compensation scheme called the Accident Compensation Corporation (ACC). This scheme is comprehensive and covers everyone, both visitors and residents, with compensation for recovery expenses if they have been injured in the country.[4] There is no need for the injured party to prove the fault of another party for their injuries.[5]

A majority of the claims filed to the ACC are physical injuries from accidents, but mental injuries and injuries caused by gradual processes can be covered as well.[5] The ACC covers costs for any medical treatment, lost income, necessary social and vocational rehabilitation, and lump sums when there is a permanent disability.[5] New Zealand residents overseas are covered by the ACC under certain conditions.[5]

Although injured parties usually do not have the "right to sue in the courts for injuries covered by the scheme ... [if it] isn't covered by the ACC and was caused by someone else's actions, [the injured party] can sue them in court for compensation".[5]

No-fault workers' compensation schemes

Workers' compensation schemes emerged in Germany, Great Britain, and the United States in the late 19th and early 20th centuries.[6] These schemes have been a part of Canadian legislation since 1914. As part of a social contract, they exchange injured workers' rights to sue employers for the right to compensation benefits when injured.[6] The foundation for Canadian no-fault workers' compensation schemes began with the Meredith Report, chaired by Sir William Meredith, which expressed five principles that "underlie most workers' compensation legislation in Canada today".[6]

Meredith principles[6][7]
1. No-fault compensation: "Workers’ injuries are compensated regardless of how the injury occurred. The worker and the employer waive the right to sue. Fault is irrelevant; providing compensation is the focus."[7]
2. Security benefits: "A fund is established to guarantee compensation funds exist and will be available to all workers."[7]
3. Collective liability: "Covered employers, on the whole, share liability for workplace injury insurance. The total cost of the compensation system is shared by all employers. All employers contribute to a common fund. Financial liability becomes their collective responsibility."[6]
4. Independent administration: "The boards that administer workers’ compensation insurance are financially independent and separate from government."[7]
5. Exclusive jurisdiction: "[O]nly workers’ compensation organizations provide workers’ compensation insurance. All compensation claims are directed solely to the compensation board. The board is the decision-maker and final authority for all claims."[6]

WorkSafe BC

WorkSafe BC was "established by [the Workers’ Compensation Act, RSBC 2019, c 1] as an agency with the mandate to oversee a no-fault insurance system for the workplace".[8] If a BC resident is injured while they are working, they file a claim with WorkSafe BC.[9]

WorkSafeBC works with employers and employees in the province to help with prevention, rehabilitation, and compensation for workplace injuries, illnesses, and diseases.[8] It operates under the same social contract trade-off as most no-fault schemes – "employers fund a no-fault insurance scheme for injured workers and, in return, workers give up their right to legal action against their employer for work-related injuries and occupational diseases".[10] The common types of injuries claimed under WorkSafe BC are: personal injury, psychological injury, occupational disease, and hearing loss.[11]

In the news
Workers' compensation claims soared in British Columbia over the span of the COVID-19 pandemic
Between 2020 and 2022, more than 15,000 claims were filed with WorkSafe BC regarding exposure to COVID-19.[12] 87% and 94% of these claims were approved, in 2020 and 2022 respectively, which is both surprising and uncommon when it comes to other types of claims usually filed with WorkSafe BC.[12]

Provincial workers’ compensation statutes

No-fault vehicular insurance schemes

Enhanced Care model controversy
These videos discuss the experiences of some of the individuals who are opposed to BC's Enhanced Care model.[13][14][15]


No-fault vehicular insurance schemes hold the same premise as other no-fault schemes – injured parties in vehicular accidents waive the right to sue the party at-fault in order to receive compensation. BC has introduced several reforms to its legislation to move vehicular accident claims away from the tort system (the courts).

British Columbia

Enhanced Care model

ICBC launched their Enhanced Care model in May 2021.[16] This model is a no-fault scheme, meaning that any B.C. resident injured in a crash is to have immediate and early "access to medical care and treatment needed to recover, no matter who is responsible (at fault) in the crash".[16] This model also "brought an end to financial settlements and insurance legal proceedings".[17] ICBC has created a short guide of benefits and covered treatments here.

If a worker is injured in a crash during work, they must first file a claim with WorkSafeBC, and ICBC may be a second payer to cover treatments fees.[16] Under the Enhanced Care model, the injured party cannot sue the driver at-fault, even if they were negligent, unless are "convicted of a criminal driving offence (such as drunk driving) in connection with the accident" (which is uncommon).[18]

In 2022, a civil claim was filed against ICBC by a car crash victim, Tim Shober, and the non-profit Trial Lawyers of British Columbia (TLABC), challenging the constitutionality of ICBC's Enhanced Care model.[19] The parties argue that the model's cap on compensation claims violate constitutional rights.[19] The TLABC has "fought against the no-fault insurance model since it was announced in 2020".[19]

Civil Resolution Tribunal

Starting in 2018, the B.C. provincial government introduced legislation to increase the Civil Resolution Tribunal's (CRT) jurisdiction under the Civil Resolution Tribunal Act. The CRT is Canada's first online tribunal,[20] where the adjudicators are lawyers and not independent judges.[21]

Shannon Salter: BC's Civil Resolution Tribunal
In an episode of Runnymede Radio, Shannon Salter "discusses the nature and work of the Civil Resolution Tribunal and how this administrative body is reshaping legal dispute resolution in British Columbia."[22]

The B.C. Supreme Court originally struck down sections of the legislation as unconstitutional,[23] but the BCCA overturned the judgment.[24]

In relation to vehicular accidents and B.C.'s Enhanced Care model, the CRT has jurisdiction over "motor vehicle accident injury claims for damages up to $50,000,... claims about entitlement to accident benefits under the enhanced care regime,...[and] claims about ICBC's assessment of responsibility for a motor vehicle accident".[25] If a party does not agree with the CRT's final decision, there are narrow grounds to seek judicial review of the decision from the B.C. Supreme Court.[26]

Victim compensation funds

The tort system is not particularly efficient at addressing widespread harm to large numbers of people. That said, a tort action or class action can be effective in bringing governments to the table to discuss compensation for alleged wrongdoing.[27] Additionally, the prospect of dealing with hundreds of claims trying to prove individual damages can be problematic for defendants.

Sometimes governments will step in and replace access to the tort system in certain circumstances by setting up funds for victims to obtain compensation for harm without having to meet the hurdles imposed by tort law, such as fault, proven damage and causation. Such funds may be presented to and negotiated with victims by way of settlement of any civil claims.

9/11 compensation fund
The movie Worth "dramatizes the creation of the Sept. 11 Victim Compensation Fund, which the federal government established after the attacks to limit lawsuits against the airlines".[28]

Residential schools

Residential schools were "an extensive school system set up by the Canadian government and administered by churches that had the nominal objective of educating Indigenous children but also the more damaging and equally explicit objectives of indoctrinating them into Euro-Canadian and Christian ways of living and assimilating them into mainstream white Canadian society".[29] They were run in Canada, mostly by churches and other religious organizations, from the 1600s to 1996, with funding from the federal government under the goal of colonialism.[30]

Separating children from parents: The Sixties Scoop in Canada
This CBC News video breaks down the Sixties Scoop and its long last effects.[31]

National Settlement
This CBC News video from 2018 sets out the multiple perspectives on whether or not the settlement should be accepted.[32]

This CBC News video provides coverage of when the Sixties Scoop survivors received their first settlement cheques.[33]

Starting in the mid-1980s, survivors of residential schools started to form class action lawsuits to "seek compensation for the abuses they experienced at residential school".[34] The Indian Residential School Settlement Agreement (IRSSA) was approved in 2006 and provided a minimum of $1.9 billion to compensate survivors of residential schools.[34][35] This agreement also set up the Truth and Reconciliation Commission (TRC).[34]

In a "monumental" decision[36], Tk'emlúps te Secwépemc First Nation v. Canada [2023] FC 327, Madam Justice McDonald "approved a $2.8-billion settlement agreement between the Canadian government and plaintiffs representing 325 First Nations whose members went to residential schools".[37] The agreement releases the Crown from any future claims by the plaintiffs in relation to residential schools "fully, finally, and forever".[38] If the agreement passes the appeal period, "the money will be transferred to a not-for-profit fund managed by a board of Indigenous leaders".[37]

The Sixties Scoop

Starting in 1951, after amendments to the Indian Act, until the 1980s, tens of thousands of Indigenous children were take from their families by the Canadian government to be adopted by middle-class non-Indigenous families.[39] A class action was subsequently brought forward by a group of survivors of the Sixties Scoop that "argue[d] that those affected by the Sixties Scoop suffered significant harms as a result of these practices–especially the loss of their cultural identity".[40] The class action resulted in a National Settlement that was approved in 2018.[40]

The Sixties Scoop National Settlement also established the Sixties Scoop Healing Foundation, giving it $50 million, to "support [s]urvivors and their [d]escendants along their [h]ealing [j]ourney", and is completely independent of the government.[41]

Discussion questions

  • Compare the tort system and no-fault schemes in light of these eight questions: 1) Who processes the claims? 2) What is the lawyer's role? 3) What do victims (not) get? 4) How long does it take to receive compensation (money)? 5) What is the victim's role? 6) Does fault matter? 7) How do decisions get appealed? 8) What is the legal theory involved?
  • Read L.N. Klar's article on the ACC (§12.1.2) and make your own pros and cons list for no-fault compensations schemes. Do you think that the no-fault compensation scheme is more effective than regular tort law?
  • Consider the story of the 11-year-old Kiwi boy left disabled by a botched birth whose family fought for five years to receive ACC cover.[42] What does this story reveal about the benefits and challenges of no-fault personal injury schemes?
  • Do you think that a no-fault compensation scheme could be implemented anywhere, or do you think that the societal values of the jurisdiction matter when implementing such a scheme?
  • Should tort law be fully replaced by these types of no-fault compensation schemes? Could it be realistically done?
  • Can you think of other situations, in Canada or abroad, were class actions have successfully compensated victims?
  1. ↑ "No-fault compensation". Oxford Reference.
  2. ↑ ACC New Zealand (29 July 2022). "ACC New Zealand: Who we are". YouTube.
  3. ↑ Gardner, Eddie (5 September 2017). "NZ ACC Thinksafe TV Ad Campaign from 1990s-2000s". YouTube.
  4. ↑ "What we do". ACC.
  5. ↑ 5.0 5.1 5.2 5.3 5.4 “Overview of the ACC Scheme,” Community Law Manual (Community Law, 2020) at Chapter 19.
  6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 "Workers Compensation". Association of Workers' Compensation Boards of Canada.
  7. ↑ 7.0 7.1 7.2 7.3 "Workers' Compensation". United Food and Commercial Workers Union.
  8. ↑ 8.0 8.1 "Our mandate, vision, mission, goals & values". WorkSafe BC.
  9. ↑ "Report a workplace injury or disease". WorkSafe BC.
  10. ↑ UBC Law Students' Legal Advice Program (2022). Law Students' Legal Advice Manual (46 ed.). CanLII. pp. 7–1.
  11. ↑ UBC Law Students' Legal Advice Program (2022). Law Students' Legal Advice Manual (46 ed.). CanLII. pp. 7–6.
  12. ↑ 12.0 12.1 Kulkarni, Akshay (5 February 2023). "More than 15,000 workers' compensation claims filed in B.C. over COVID-19". CBC News.
  13. ↑ Urquhart, Catherine; Boynton, Sean (6 July 2023). "B.C. man paralyzed by crash launches legal challenge against ICBC's no-fault insurance". Global News.
  14. ↑ CTV Vancouver (7 February 2020). "How 'no-fault' insurance affects drivers". YouTube.
  15. ↑ CTV Vancouver (4 August 2021). "Injured cyclist slams ICBC changes". YouTube.
  16. ↑ 16.0 16.1 16.2 "Enhanced Care". ICBC.
  17. ↑ Adriano, Lyle (8 July 2022). "Civil claim filed against ICBC's no-fault insurance system". Insurance Business.
  18. ↑ "What to Expect with ICBC No-Fault Insurance". Klein Lawyers LLP.
  19. ↑ 19.0 19.1 19.2 Boynton, Sean; Urquhart, Catherine (5 July 2022). "B.C. man paralyzed by crash launches legal challenge against ICBC's no-fault insurance". Global News.
  20. ↑ "Civil Resolution Tribunal". Civil Resolution Tribunal.
  21. ↑ "Staff and Members". Civil Resolution Tribunal.
  22. ↑ Runnymede Radio (24 March 2020). "Shannon Salter: BC's Civil Resolution Tribunal".
  23. ↑ Trial Lawyers Association of British Columbia v. British Columbia (AG), 2021 BCSC 348.
  24. ↑ Trial Lawyers Association of British Columbia v. British Columbia (AG), 2022 BCCA 163.
  25. ↑ Civil Resolution Tribunal Act, SBC 2012, c 25.
  26. ↑ "What if I don't agree with a final decision?". Civil Resolution Tribunal.
  27. ↑ See e.g. Tk'emlúps te Secwépemc First Nation v. Canada, 2023 FC 327 at Court Order 4.a.
  28. ↑ Kenigsberg, Ben (11 September 2021). "'Worth' Review: Appraising Lives". New York Times.
  29. ↑ Hanson, E., Gamez, D., & Manuel, A. (2020, September). The Residential School System. Indigenous Foundations.
  30. ↑ "Residential schools in Canada". Government of Canada.
  31. ↑ CBC News (22 June 2018). "Separating children from parents: The Sixties Scoop in Canada". YouTube.
  32. ↑ CBC News: The National (10 May 2018). "Sixties Scoop survivors split on proposed $875-million settlement". YouTube.
  33. ↑ CBC News: The National (26 June 2020). "Sixties Scoop survivors receive first settlement cheques". YouTube.
  34. ↑ 34.0 34.1 34.2 "The Indian Residential School Settlement Agreement". Indian Residential School History and Dialogue Centre.
  35. ↑ "The Indian residential schools settlement has been approved" (PDF).
  36. ↑ Tk'emlúps te Secwépemc First Nation v. Canada, 2023 FC 327 at para 101.
  37. ↑ 37.0 37.1 The Canadian Press (9 March 2023). "'Historic' $2.8B class-action Indigenous court settlement approved". CBC/Radio-Canada.
  38. ↑ Tk'emlúps te Secwépemc First Nation v. Canada, 2023 FC 327 at Court Order 4.a.
  39. ↑ Sinclair, Niigaanwewidam James; Dainard, Sharon (13 November 2020). "Sixties Scoop". The Canadian Encyclopedia – via Historica.
  40. ↑ 40.0 40.1 "Frequently Asked Questions". Sixties Scoop Settlement.
  41. ↑ "Home". Sixties Scoop Healing Foundation.
  42. ↑ "Child wins five-year battle with ACC for birth-related injury cover". Radio New Zealand. 24 January 2022.
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