Difference between pages "Introduction to ICBC Automobile Insurance for Accidents on or Before April 30 2021 (12:VIII)" and "Missing Persons and Abductions (4:IX)"

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{{REVIEWED LSLAP | date= August 12, 2020}}
{{REVIEWED LSLAP | date= June 30, 2021}}
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{{LSLAP 12 Old System Notice}}
According to the National Center for Missing Persons and Unidentified Remains (NCMPUR), British Columbia records the highest number of missing persons in the country, accounting for more than 40% of the countries 29,645 cases in 2020 .


== A. General ==
NCMPUR categorizes probable cause for missing persons into the following categories:


The automobile insurance system in BC is comprised of “no-fault” benefit claims and indemnification for claims in tort law. 
* Abduction by stranger
* Accident
* Wandered Off
* Parental Abduction with Custody Order
* Parental Abduction without Custody Order
* Abducted by Relative
* Runaway
* Presumed Dead
* Human Trafficking
* Unknown


No-fault benefits are included as part of the basic (compulsory) insurance coverage offered by the Insurance Corporation of British Columbia (ICBC or “the Corporation”) exclusively. As the name implies, payment of the no-fault coverage is given regardless of whether any element of fault is attributed to the insured. Optional coverage above and beyond the basic coverage may be purchased from either ICBC or a private insurer under an optional insurance contract (“OIC”).


Claims for damages brought under tort law, however, do require the presence of a fault element on the part of the defendant to be successful. The victim of the accident (e.g. a personal injury claimant) may sue the other driver(s), the owner(s) of the insured car, the manufacturer(s), automobile shop(s), municipality, the insurer(s), or any other parties liable for the injury. Legislatively, there is no limitation on the maximum amount of damages that a court could award to a victim. However, case law and statute may effectively cap certain heads of damage, such as non-pecuniary damages. Where the necessary conditions are met, ICBC may indemnify the insured for all or part of the assessed liability. This means that where damages are awarded to a victim in an accident, ICBC will pay those damages instead of the party (i.e. the insured) who is at fault.
In British Columbia, there is no waiting period to report someone missing and anyone can make a report. Furthermore, you do not need to be a member of the missing persons immediately family to make a report. Before contacting police, you may want to reach out to family members, friends, loved ones and next of kin prior to filing a report. However, if these attempts at gaining information on an individuals whereabouts are unsuccessful, reporting to police is the best next step. You can expect the following from police when making a report :
It is important to determine whether the action is one that can be commenced in BC and whether the law of BC applies. For cases involving a BC resident who has been involved in an out-of-province accident, private international law rules will govern the action. Generally, for the substantive issues, the laws of the jurisdiction where the accident took place will apply. For procedural matters, the rules of the trial court will apply. A summary of out-of-province insurer qualifications, service procedures, and jurisdictional considerations is listed in [[Claims Involving Out-of-province Insurers or Accidents (12:XIII)|Section XII]], below.


The ''Insurance (Vehicle) Act [IVA]'' and the ''Insurance (Vehicle) Regulation [IVR]'' form a code governing most aspects of auto insurance in BC. This chapter is not meant to be a comprehensive summary of the IVA or IVR but rather is a guide to help people locate the relevant sections of the ''IVA'' and ''IVR'' that they are likely to encounter.  A few preliminary concepts, which will be of use in understanding this chapter, are discussed immediately below.
* Report will be taken seriously, and investigation started without delay.  
* Conducting a thorough investigation, including risk assessment, focused on the safety and wellbeing of the missing person
* Offer information about supports or resources that may be available, designate a contact person within the police force to support ongoing communication, and keep you updated on the investigation, as appropriate
* Consult with the family or reportee before releasing information or photographs of the missing person to the media, unless doing so would jeopardize the missing person or the investigation, for example by creating delays.
* When a missing person has been found, attend the location in person to confirm their identity and wellbeing. To balance respect for privacy with police duty to investigate safety concerns, this may be handled differently in some circumstances.
* Not close a file until the missing person has been located and their identity has been established.
* Not share information about the location of a found missing adult without their permission. Police may also keep this information confidential in certain cases involving minors, depending on the circumstances.
* Where appropriate, work with other agencies to promote a found missing person’s ongoing safety and limit recurring reports involving the same person, or to prevent others from going missing in similar circumstances.


=== 1. Indemnification ===


Drivers purchase car insurance to protect themselves in the event that they are found liable for damages. If the necessary preconditions are met, ICBC assumes liability for payment of benefits or damages to the claimant or victim of a car accident. Instead of the insured paying the damages claimed, the insurance company, “indemnifies” the insured.
== A. Governing Legislation and Resources ==


=== 2. Subrogation ===
=== 1. Legislation ===


Subrogation is a common feature of insurance contracts. When ICBC assumes liability for payment of benefits or damages of any kind on behalf of the insured, ICBC is ‘subrogated’ to the right of recovery that the insured had against any other person (''IVA'', s 84), i.e., ICBC has all remedies available to it that the insured person might have exercised by him or herself (''IVA'', s 83).  
The Missing Persons Act (the Act) came into force June 9, 2015, setting out the provisions for accessing records that will help find missing persons, including special provisions for people who are vulnerable, youth and persons at risk.


=== 3. Premiums and Point Penalties ===
The Act allows a member of a police force to apply to the court for records to help find a missing person. When there is a risk of serious harm to a missing person or a concern that records could be destroyed, the Act authorizes officers to make an Emergency Demand for Records without going through the court. Section 18 of the Act requires that a report on the use of  Emergency Demands for Records must be submitted to the Minister or his or her designate on an annual basis and must be made public.


Premiums are regular payments made by the insured to ICBC. Premiums are based on where the insured lives, how the vehicle is used, the type of vehicle, and the insured driver’s claim record.
The Act defines a missing person as an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and:


The point penalty system is authorized by sections 210 and 211 of the ''Motor Vehicle Act [MVA]''. Section 28.01 of the ''Motor Vehicle Act Regulations'', BC Reg 26/58, outlines the various breaches and/or offences of the ''MVA'' and the corresponding point penalties recorded.
1. who has not been in contact with those persons who would likely be in contact with the individual or;


Starting June 10, 2019, any traffic ticket a driver gets will have the potential to increase their ICBC insurance rates. Traffic tickets will be broken down into two categories: high-risk tickets and regular traffic tickets. High-risk tickets include but may not be limited to:
2. whose safety and welfare are feared for given:
    i) the individuals age
    ii) the individual’s physical or mental capabilities, or
    iii) the circumstance surrounding the individuals absence


*Impaired driving incidents, including a 24-Hour Prohibition from driving, a 3-day prohibition from driving, a 7-day prohibition from driving, a 30-day prohibition from driving, or a 90-day Immediate Roadside Prohibition or Administrative Driving Prohibition. The increased insurance rates for impaired driving incidents will also include any individuals who have criminal convictions for impaired driving, refusing to provide a breath sample. The individual will be required to pay increased insurance rates once the individual‘s mandatory driving prohibition is over.
=== 2. Resources ===
*Electronic Device tickets, which increases insurance rates on top of adding to the Driver Risk Premium
*Excessive Speeding tickets, which also increases insurance rates on top of adding to the Driver Risk Premium
*Driving While Prohibited charges
*Criminal Code driving convictions


These increased insurance rates would start on September 1, 2019.
==== a. The National Centre for Missing Persons and Unidentified Remains (NCMPUR) ====
=== 4. Waiver ===


Section 85 of the ''IVA'' allows ICBC to waive a term or condition of an insurance contract (also known as “the plan”).  However, in order for a term or condition to be waived, the waiver must be in writing '''and''' signed by an ICBC officer.
NCMPUR is Canada's national centre that provides law enforcement, medical examiners and chief coroners with specialized investigative services in support of missing persons and unidentified remains investigations.


== B. Application of the Current Legislation, and Transitional Provisions ==
One of the NCMPUR’s responsibilities is managing the national public website to provide information on selected cases to the public for the purposes of seeking tips on investigations.


On June 1, 2007, the IVA and accompanying IVR were amended. Transitional provisions in Parts 1, 4, and 5 of the IVA dictate which regime, old or new, will apply to a particular claim (ss 1.2, 58, and 74 respectively).
The Canadasmissing.ca website features profiles of missing persons and unidentified remains that have been published at the request of the primary investigator from either police, coroner or medical examiner agency. Furthermore, resources are provided that instruct individuals on how to submit tips, specialized services, and fact sheets.  


Generally, it is safe to say that the IVA and the IVR, taken as a whole, apply to:
==== b. Travel Reunification Services ====


*'''Insurance policies''' under the universal compulsory vehicle insurance plan set out by the Act (the “plan”) that take effect on or after June 1, 2007;
This is a program designed to assist a parent or a legal guardian who cannot afford to return the abducted child to or within Canada, once the child is located. In order to be eligible for travel assistance, the following guidelines must be met:
*Optional '''insurance contracts''' that take effect on or after June 1, 2007;
*Any '''claims''' that arise under these insurance plans or contracts; and
*'''Insured persons''', and '''insurers''', and '''ICBC''' in relation to these insurance plans or contracts.


'''NOTE''': TThe critical time to look at is the date on which the individual insurance policy or contract came into effect, or was renewed.  
1. The request for transportation must come from the investigating Police Agency or the Central Authority from the child's home province:
*A law enforcement agency investigating a child abduction complaint;
*A representative of a Canadian Central Authority pursuant to the Hague Convention on the Civil Aspects of International Child Abduction; or
*An agency designated by NCMPUR Operations.


Claims and parties to the claims in relation to an insurance policy that came into effect before June 1, 2007 will continue to be governed by the old IMVA and IMVAR. It is entirely possible for a single accident to trigger the operation of both the old and new Acts simultaneously, (albeit in relation to different aspects of the resultant legal issues).
2.The requesting agency is responsible for assessing the financial status of the family and determining if transportation should be provided. (For example: whether the requesting parent's financial circumstances would make paying for the child and/or parent's transportation prohibitive).


Although the IVA and IVR cover both ICBC and private insurer plans, some parts of the Act and Regulation apply only to one or the other. Specifically, the parts of the Act and Regulation that govern ICBC are Parts 1, 5, and 6 of the Act and Parts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, and 14 of the Regulation. The parts of the Act and the Regulation that govern the private insurers are Parts 4, 5, and 6 of the Act and Parts 13 and 14 of the Regulation.
3.Assistance will be limited to child abduction situations, including situations where the child is abducted by parent or legal guardian.


Furthermore, the IVA and IVR apply to both universal mandatory coverage and optional coverage. Part 1 of the IVA applies to ICBC’s mandatory coverage only. Part 4 of the IVA applies to optional coverage. Parts 5 and 6 of the IVA apply to both mandatory coverage and optional coverage.
4.Assistance will be provided to transport:
*In the case of older abducted children, home; and
*In the case of younger children, enable the left behind parent or legal guardian to travel to the jurisdiction where the child is and return home.


== C. Seeking Legal Counsel for Your Claim==
5.In some cases, it may be appropriate for a person other than the left behind parent or legal guardian to retrieve the child and accompany the child home.


Most personal injury lawyers will take motor vehicle accident claims on a contingency basis (a percentage of the total sum recovered) and offer a free consultation.  Since this means that there is usually no cost barrier, it is often wise to at least consult a lawyer to ensure that you will receive the amount to which you are entitled. Here are a few things to be aware of when consulting a lawyer for your claim:
6.If the left behind parent is travelling to retrieve the child, the requesting authority must make every reasonable effort to confirm/ensure that the parent will be able to obtain legal physical custody of the child. For example, consideration should be given to whether a return order is pending or under appeal, the child's whereabouts are known, there are legal impediments to the child's removal, etc.


=== 1. Contingency Fees===
7.The requesting agency must ensure that the parent or legal guardian has all the necessary documents in order to retrieve the child. For example: child's birth certificate; custody order; passport and any other necessary travel documents.


Contingency fees are variable; some lawyers use a sliding scale so that the fee increases as the trial date approaches. The Law Society of British Columbia imposes limits on contingency fees for motor vehicle injuries, and the claimant is unlikely to encounter lawyers who charge more than 33.33 per cent.
8.Assistance will not be provided to transport the abductor, even if he or she is the person able to accompany the child home.


=== 2. The Contingency Fee Contract===


The contingency fee contract must be in writing and must contain a provision that it is the claimant’s right to have the contract reviewed by the Supreme Court for reasonableness.
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Contingency fee contracts often provide that if the claimant discharges the lawyer, the claimant will have to pay an hourly rate for services up to the date of discharge and that these fees must be paid before the lawyer will transfer the file to another lawyer.  A claimant who discharges a lawyer can have the lawyer’s bill reviewed by a Registrar of the Supreme Court in a hearing called an Assessment.  The Registrar will make a ruling about the reasonableness of the bill and whether the claimant should be required to pay the bill right away.
 
=== 3. Disbursement Costs===
 
Disbursement costs are the expenses incurred for photocopying, medical reports, transcripts of evidence, police reports, motor vehicle searches, etc.  Law firms will often pay these costs for the claimant and collect them at the end of the lawsuit. Some law firms take a retainer fee for disbursements.
 
=== 4. Marshalling of Reports===
 
Over the course of the claim, the claimant’s lawyer will collect your medical records, typically for the period from 2 years before the motor vehicle accident to the period following the accident, and deliver them to the defence counsel.  As a claimant in a personal injury action, it is important to be diligent in pursuing recommended medical treatment and visiting a family physician, as clinical medical records are typically only generated when a patient attends at an appointment.  The lawyer for the claimant and for the defendant(s)/ICBC may also arrange for independent medical evaluations with specialized doctors over the course of the claim.
 
If there is a claim for loss of prospective earnings or cost of future care, the claimant’s lawyer may also collect and deliver economic briefs and reports by vocational specialists, accountants, actuaries, and other non-medical professionals. This will require the claimant to draft a letter granting their lawyer signing authorization. – this letter should address who is receiving the authorization (in this case, the lawyer) and for what purpose, related issues, or kinds of documents (in this case, disclosures) the authorization is for,
 
The claimant’s lawyer will also receive defence reports and expert summaries.  All of this goes on behind the scenes.  Claimants wishing to have a more active role in their file should not hesitate to contact their lawyers for periodic updates.
 
=== 5. Limitation on Experts (affecting all trials taking place after October 1, 2020)===
 
Amendments are introduced to the Evidence Act, RSBC 1996, c.124 [EA] which will limit the number of experts and expert reports that are used on the issue of damages in most trials, with judicial discretion to allow for additional experts in appropriate cases. The purpose of the amendments is to decrease the cost, complexity, and delay associated with using many experts in a trial. As a result, claims will be resolved more efficiently in court.
 
See [https://www.icbc.com/partners/Pages/evidence-act-amendments.aspx#:~:text=A%20maximum%20of%20three%20experts,for%20a%20trial%20before%20Oct. ICBC Evidence Act Ammendments] and [https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/5th-session/bills/amended/gov09-2 BILL 9 – 2020 - EVIDENCE AMENDMENT ACT, 2020 [EAA<nowiki>]</nowiki>]
 
Proposed Changes:
 
1) For fast track claims (where the amount sought by the plaintiff is less than $100,000.00), there will be a limit of one expert and one expert report per party, EAA 12.1 (2)(b).
 
2) For claims that are not considered to be fast track claims, there will be a maximum of three experts and expert reports for each party, EAA 12.1 (2)(a).
 
3) Parties involved in the claim can agree to use more experts than the limit if every party to the claim agrees, EAA 12.1 (4)(a)(b).
 
4) EAA 12.1(5) provides judicial discretion to allow for additional experts beyond the limitation for cases where:
 
a. The subject matter of additional expert to be tendered has not already been addressed by the other experts. EAA 12.1 (6)(a)
 
b. Without the additional expert evidence, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding. EAA 12.1 (6)(b)
 
5) A limit is placed on the maximum amount recoverable from an unsuccessful litigant to $3,000.00 per each expert report in motor vehicle personal injury cases, EAA 12.1 (9)(a)(i)(A). The total recoverable disbursements in motor vehicle personal injury cases will also be limited to 5% of the judgment or settlement, EAA 12.1 (9)(a)(i)(B).
 
6) Disbursements include all expenses used for the purpose of the lawsuit including expenses such as courier fees and photocopying. It will not include fees payable to the Crown such as filing fees, court fees, and jury fees. EAA 12.1 (9)(a)(ii).
 
 
Exceptions:
1) The limitation of the number of experts will not apply if an expert report has been served before February 6, 2020, and the trial date set out in the notice trial is before October 1, 2020, EAA 12.2 (2)(b)
 
2) The $3,000.00 limit to recoverable on expert reports and the 5% limit on disbursements would not apply if the cost for experts has already been incurred prior to February 6, 2020, or a notice of trial has been filed and served prior to February 6, 2020, for a trial before October 1, 2020. EAA 12.2 (3)(b)
 
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Revision as of 03:16, 3 November 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
4. Victims
 · I. Introduction

 · II. Governing Legislation
 · III. Crime Victim Assistance Program
 · IV. Avenues to Address Crime
 · V. Victims of Sexual Assault
 · VI. Victims of Relationship Violence
 · VII. Seniors or Those with Disabilities
 · VIII. Victims of Human Trafficking
 · IX. Missing Persons and Abductions
 · X. TIP and Restorative Justice
 · XI. Resources for Indigenous Victims

 · XII. Referrals and Follow-up
v • d • e



According to the National Center for Missing Persons and Unidentified Remains (NCMPUR), British Columbia records the highest number of missing persons in the country, accounting for more than 40% of the countries 29,645 cases in 2020 .

NCMPUR categorizes probable cause for missing persons into the following categories:

  • Abduction by stranger
  • Accident
  • Wandered Off
  • Parental Abduction with Custody Order
  • Parental Abduction without Custody Order
  • Abducted by Relative
  • Runaway
  • Presumed Dead
  • Human Trafficking
  • Unknown


In British Columbia, there is no waiting period to report someone missing and anyone can make a report. Furthermore, you do not need to be a member of the missing persons immediately family to make a report. Before contacting police, you may want to reach out to family members, friends, loved ones and next of kin prior to filing a report. However, if these attempts at gaining information on an individuals whereabouts are unsuccessful, reporting to police is the best next step. You can expect the following from police when making a report :

  • Report will be taken seriously, and investigation started without delay.
  • Conducting a thorough investigation, including risk assessment, focused on the safety and wellbeing of the missing person
  • Offer information about supports or resources that may be available, designate a contact person within the police force to support ongoing communication, and keep you updated on the investigation, as appropriate
  • Consult with the family or reportee before releasing information or photographs of the missing person to the media, unless doing so would jeopardize the missing person or the investigation, for example by creating delays.
  • When a missing person has been found, attend the location in person to confirm their identity and wellbeing. To balance respect for privacy with police duty to investigate safety concerns, this may be handled differently in some circumstances.
  • Not close a file until the missing person has been located and their identity has been established.
  • Not share information about the location of a found missing adult without their permission. Police may also keep this information confidential in certain cases involving minors, depending on the circumstances.
  • Where appropriate, work with other agencies to promote a found missing person’s ongoing safety and limit recurring reports involving the same person, or to prevent others from going missing in similar circumstances.


A. Governing Legislation and Resources

1. Legislation

The Missing Persons Act (the Act) came into force June 9, 2015, setting out the provisions for accessing records that will help find missing persons, including special provisions for people who are vulnerable, youth and persons at risk.

The Act allows a member of a police force to apply to the court for records to help find a missing person. When there is a risk of serious harm to a missing person or a concern that records could be destroyed, the Act authorizes officers to make an Emergency Demand for Records without going through the court. Section 18 of the Act requires that a report on the use of Emergency Demands for Records must be submitted to the Minister or his or her designate on an annual basis and must be made public.

The Act defines a missing person as an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and:

1. who has not been in contact with those persons who would likely be in contact with the individual or;

2. whose safety and welfare are feared for given: 

   i) the individuals age 
   ii) the individual’s physical or mental capabilities, or
   iii) the circumstance surrounding the individuals absence

2. Resources

a. The National Centre for Missing Persons and Unidentified Remains (NCMPUR)

NCMPUR is Canada's national centre that provides law enforcement, medical examiners and chief coroners with specialized investigative services in support of missing persons and unidentified remains investigations.

One of the NCMPUR’s responsibilities is managing the national public website to provide information on selected cases to the public for the purposes of seeking tips on investigations.

The Canadasmissing.ca website features profiles of missing persons and unidentified remains that have been published at the request of the primary investigator from either police, coroner or medical examiner agency. Furthermore, resources are provided that instruct individuals on how to submit tips, specialized services, and fact sheets.

b. Travel Reunification Services

This is a program designed to assist a parent or a legal guardian who cannot afford to return the abducted child to or within Canada, once the child is located. In order to be eligible for travel assistance, the following guidelines must be met:

1. The request for transportation must come from the investigating Police Agency or the Central Authority from the child's home province:

  • A law enforcement agency investigating a child abduction complaint;
  • A representative of a Canadian Central Authority pursuant to the Hague Convention on the Civil Aspects of International Child Abduction; or
  • An agency designated by NCMPUR Operations.

2.The requesting agency is responsible for assessing the financial status of the family and determining if transportation should be provided. (For example: whether the requesting parent's financial circumstances would make paying for the child and/or parent's transportation prohibitive).

3.Assistance will be limited to child abduction situations, including situations where the child is abducted by parent or legal guardian.

4.Assistance will be provided to transport:

  • In the case of older abducted children, home; and
  • In the case of younger children, enable the left behind parent or legal guardian to travel to the jurisdiction where the child is and return home.

5.In some cases, it may be appropriate for a person other than the left behind parent or legal guardian to retrieve the child and accompany the child home.

6.If the left behind parent is travelling to retrieve the child, the requesting authority must make every reasonable effort to confirm/ensure that the parent will be able to obtain legal physical custody of the child. For example, consideration should be given to whether a return order is pending or under appeal, the child's whereabouts are known, there are legal impediments to the child's removal, etc.

7.The requesting agency must ensure that the parent or legal guardian has all the necessary documents in order to retrieve the child. For example: child's birth certificate; custody order; passport and any other necessary travel documents.

8.Assistance will not be provided to transport the abductor, even if he or she is the person able to accompany the child home.


v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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