For nearly 35 years, Quebec drivers have been benefiting from a unique civil liability situation when it comes to driving a motor vehicle. The no-fault legal liability scheme for bodily injury and Quebec’s Direct Compensation Agreement for property damage create a financial safety net for Quebec residents and it can be easy to forget that things operate differently outside of Quebec.
In other words, an accident involving a Quebec driver who ventures beyond provincial borders creates many difficulties from a legal perspective. The same may also be said of an out-of-province driver involved in an accident in Quebec. The following is an attempt to shed some light on these two situations.
1 – The Legal Situation in Quebec
In Quebec, the Automobile Insurance Act1 (hereinafter referred to as the “AIA”) governs the consequences of an accident involving a motor vehicle as defined by the AIA. The Supreme Court2 recently reiterated that one must interpret the AIA in its broadest sense and ruled that a case where a tree fell on a motor vehicle and caused the driver’s death is eligible for indemnity under the AIA scheme.
As regards bodily injury, a victim who has been injured by a motor vehicle will be compensated by the Société de l’assurance automobile du Québec (hereinafter referred to as the “SAAQ”) regardless of who is at fault3. The AIA provides for income replacement indemnities4, the reimbursement of certain expenses and rehabilitation5, non-pecuniary damage indemnities6, and death benefits in the event of a victim’s death7. Such compensation stands in lieu of all of the victim’s remedies8.
However, the Act confers immunity neither to the Quebec driver nor to the owner of the vehicle registered in Quebec should he happen to venture beyond the borders of Quebec.
In fact, it is mandatory for anyone fitting this profile to be covered by an automotive liability insurance policy that will cover his civil liability for property damage in Quebec and for property damage and bodily injury elsewhere in Canada and in the United States9. The amount of mandatory insurance is limited to $50,00010, however this is very little when one considers the potential risks of a lawsuit elsewhere on the continent. The automotive insurance policy issued in Quebec is a standard document for which the content is imposed by law.
As regards property damage caused by a motor vehicle in Quebec, general principles of civil liability apply despite certain presumptions intended to facilitate the victim’s remedy. In other words, the driver is solidarily liable for the property damage11 caused by the automobile in like manner with the owner12.
It is also important to mention the Direct Compensation Agreement (hereinafter referred to as the “Agreement”)13 among Quebec insurance companies, which reiterates the legislation’s intent to avoid litigation concerning motor vehicle accidents. For an accident falling under the auspices of the Agreement, such as a collision between two vehicles, the insured is indemnified by his own insurer14, which will pay the insured party to the extent of the liability of the other drivers of the other vehicles involved according to a pre-determined Fault Chart15.
2 – Quebec residents involved in an accident outside of Québec
Quebec drivers are leaving the province more and more often, whether it is for a family vacation along the beaches of New Brunswick, a few months of sunshine in Florida, or a quick trip to Ontario. Few people realize that by doing this, they are entering a different legal system.
a. Quebec residents involved in an accident
The Quebec legislator has generously granted extraterritorial scope to the AIA. As such, a Quebec resident who is the victim of an accident outside of Quebec may submit a claim for compensation to the SAAQ as if the accident had occurred in Quebec.
The victim retains the right to take direct legal action against the person liable for the accident under the laws of the place where the accident occurred16. If the victim has received compensation from the SAAQ, this recourse will only be valid for the excess amount, for the SAAQ is legally subrogated to the victim’s rights only up to the amount of the indemnity paid. This subrogatory recourse shall only be applicable against the person liable if this person is not a resident of Quebec17.
The applicable law for determining liability will normally be that of the place where the accident occurred, although there may be issues regarding the jurisdiction where the action may be instituted (accident location, place of residence of the person liable, etc.) that will need to be resolved in accordance with any applicable international rules of private law.
b. The Quebec resident who is responsible for the accident
The Quebec resident responsible for an accident outside of the province is subject to the rules of law applicable at the location where the accident occurred and may therefore be sued by the victim in accordance with international rules of private law.
It is important to note that the Quebec resident driving a motor vehicle has no immunity in the event of legal action by the victim notwithstanding the no-fault liability insurance scheme existing in Quebec. Accordingly, a Quebec driver that injures a pedestrian who is also a resident of Quebec while in Florida may be subject to legal action in Florida.
In terms of insurance protection, he will benefit from the protection offered by his civil liability insurance policy, which will cover him either for the prescribed minimum of $50,000 or the contractual limit chosen. It should be noted that the laws of certain provinces and states prescribe higher mandatory liability insurance amounts, and it will be deemed that the policy issued in Quebec will cover the minimum insurance amount prescribed where the accident occurred.
3- The “foreign” driver involved in an accident in Quebec
We are also noticing more and more vehicles driving on our roads with out-of-province or American license plates. One obvious example is the numerous transport trucks that cross our borders. It is thus fitting to think about the legal implications of an accident involving a “foreign” vehicle in Quebec.
c. The “foreign” victim driving a motor vehicle registered in Quebec
Drivers and passengers of vehicles registered in Quebec are considered residents of Quebec under the AIA18. This also applies to tourists renting vehicles registered in Quebec.
Under such circumstances, the victim will need to claim compensation from the SAAQ and will be indemnified regardless of who is at fault. Payment for such indemnities will stand in lieu of any recourse and the victim will not be able to take legal action against the third party liable for the accident in Quebec if this person is a Quebec resident.
d. The accident involves a vehicle registered outside of Quebec
The situation will be different if a victim is not a resident of Quebec and is in a vehicle registered in another province. In this instance, section 9 of the AIA stipulates that under the specific agreement with the jurisdiction of the victim’s place of residency, the victim will be compensated by the SAAQ, but only if the victim is not liable for the accident, with liability being determined according to the ordinary rules of law and in light of the presumptions obtained from sections 108 to 114 of the AIA.
In addition, when the SAAQ compensates the victim of an accident occurring in Quebec for which the person liable is not resident in Quebec, the SAAQ has subrogatory recourse against the driver, to the extent that this person is responsible for the accident19.
Outside of Quebec, motor vehicle accidents remain one of the principal sources of litigation. Not only can these claims lead to interesting debates regarding matters of damages and liability, but they are also likely to raise interesting legal issues.
Whether he is in his home province or abroad, the Quebec resident is lucky because he benefits from the generosity of Quebec legislation by receiving compensation for his own bodily harm. This means that he is not reliant on the financial capacity of the person responsible for the accident nor is he subject to the legal particularities of another jurisdiction. It is in his best interest, however, to be cautious if he wants to protect himself against the financial repercussions of a potential lawsuit launched by another party should he choose to venture beyond the borders of Quebec.
1 Automobile Insurance Act, R.S.Q., c. A-25.
2 Westmount (City) v. Rossy, 2012 SCC 30.
3 Section 5 AIA.
4 Sections 13 to 59 AIA.
5 Sections 79 to 83.32 AIA.
6 Sections 73-76 AIA.
7 Sections 60-71 AIA.
8 Section 83.57 AIA.
9 Section 85 AIA.
10 Section 87 AIA.
11 Section 108 AIA.
12 Section 109 AIA.
13 Direct Compensation Agreement for the Settlement of Automobile Claims, RRQ, c. A-25, r.4.
14 Section 116 AIA.
15 Section 4 of the Agreement.
16 Section 7 AIA; Lucas (Litigation Guardian of) v. Gagnon (1994) 3 SCR 1022.
17 Section 83.60 AIA.
18 Section 8 AIA.
19 Article 83.61 AIA.