ICBC's no-fault insurance denied recourse for mom's death: family

Familymembers say Annie Kong wanted nothing more than to gather with all her extendedfamilyunder one roof at her WestVancouverhome for Christmas in 2022.

"She was talking about that all year," said Nigel Kong, Annie's son from Denmark,who added thathis sisterwas planning to bring herfamilyfrom Chicago for the celebration.

"We can all be together, at what would have been our home that we grew up in inVancouver ... the entire brood."

Annie Kong would never get that wish.

She was one of two people killed when avehiclecrashed into a wedding celebration from a shared driveway between two homes in WestVancouveron Aug. 20, 2022.Many others were badly injured.

Thefamilysays their anguish has been exacerbated byB.C.'sno-faultinsurancesystem, which not only limited the Kongs' lump-sum compensation in Annie'sdeathbut also restricted thefamily's rights to seek additional recourse through lawsuits.

On Tuesday, the woman behindthe wheel in the crash Hong Xu was fined $2,000 and prohibited from driving for five years following an emotional sentencing in North Vancouver provincial court. She had been chargedwith driving without due care and attention under B.C.'s Motor Vehicle Act.

No-fault controversy

The issue ofno-faultinsurancehas drawn debate from the major parties ahead of this fall's provincial election.

TheB.C. Conservatives are promising exemptions to the rule that prevents families from suing for compensation in most cases, while theB.C. NDP say the change tono-faultbroughtthe province's public auto insurer "back into the black" after years of deficits.

No-faultinsuranceat the Crown-ownedInsuranceCorporation ofB.C. (ICBC) was introduced in May 2021 as a way to reduce rates, lower debt, limit legal costs and improve care for accident victims.

The NDP government said the move has worked, announcing in May that the financial improvement at ICBC means drivers will get aninsurancerebate of $110 this year, while basic renewal rates will remain frozen until at least March 2026.

But B.C. Conservatives Leader John Rustad said in a policy statement in December that "victims who suffer life-altering injuries inmotorvehicleaccidents" should be exempt from theno-faultregimeand be allowed to "pursue fair and reasonable compensation in theBritishColumbiacourt system."

In May, theB.C. New Democrats issued a release criticizing Rustad's stance, noting changes, includingno-faultinsurance, allowed ICBC to reduce rates by 20 per cent in 2021 and then to freeze them for six years.

"Under this model, a catastrophically injured person has access to care and recovery benefits, and doesn't have to wait years for a court settlement that may fall short of their care needs," a written statement from ICBC said.

Theinsuranceprovider also said "drivers who cause crashes or drive dangerously are still held accountable" as "they will continue to pay more for theirinsurance."

"In the event that criminal charges are laid and a driver is convicted, victims and their families have the right to sue that driver in a civil claim for certain compensation," ICBC said.

But lawyers say the system also prevents victims of auto accidents from suing the at-faultdriver unless thecaseinvolves a criminal offence, and people disputing compensation can only go through the Civil Resolution Tribunal, an ombudsperson or a fairness officer within ICBC.

Trial Lawyers Association ofB.C. president Michael Elliott said whileinsuranceofficials promised "potentially serious consequences" for drivers convicted criminally in acase, it is "misleading" to present that as a proper opportunity for victims seeking recourse beyondno-faultinsurance.

Elliott said his group is seeing more cases from people injured in accidents seeking compensation but running into an ICBC system he called "incredibly complex" without the help of lawyers.

"What people didn't understand and now understand is that criminal convictions for driving offences are exceedingly rare," Elliott said.

"Most offences [plead]down [and]are categorized under theMotorVehicleAct, not as a criminal offence, and so there are very few criminal convictions for driving offences in our province."

'We are not seeking millions of dollars': family

Liong Kong, Annie Kong's husband, witnessed the crash in which his wife died.

"I held her in my arms," he said. "She bled todeathwhile I was holding her.

"So, one message that I would like the public to know is, when you get the refund of $100 a year [from ICBC], it is at the expense of the victims and victims' families," he said.

The family said ICBC took almostnoinput fromfamilymembers in determining a lump-sum compensation, which was described by Annie's daughter Joanna Moy as barely covering what they had to deal with over the loss of a matriarch.

"We had to sit with an ICBC claims adjuster. They look up my mother's 'life's worth' on a graph on a table, and because she is a homemaker withnofinancial trappings,nobig CEO title to her name, it is then calculated out at a very nominal cost," Moy said.

"We are not seeking millions of dollars. Our story is, the families' rights and recourse due to thisno-faultlegislation has been completely stripped away from us. We are at the mercy of the Crown and the laws and ICBC for justice for our mother."

WestVancouverpolice said in August 2023 that "Crown counsel made a determination on the appropriate charge given the evidence and circumstances of the incident."

TheB.C. Prosecution Service said in a statement that Crown counsel "exercise their professional judgment and prosecutorial discretion" to determine what offences they can prove, as well as the public's interest in deciding whether acaseis processed under theMotorVehicleAct or as a criminal offence.

Nigel Kong said the explanation doesn't give hisfamilycomfort.

"My mother was not the only one that died," he said. "She and another died. Seven people were injured, some critically. ... And for some reason where I can't even begin to comprehend or equate is that it came down to a charge of careless driving."