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BILL NO. 32
Government Bill
3rd Session, 56th General Assembly
Nova Scotia
44 Elizabeth II, 1995
An Act to Amend Chapter 231
of the Revised Statutes, 1989,
the Insurance Act, and Chapter 293
of the Revised Statutes, 1989,
the Motor Vehicle Act
The Honourable Eleanor E. Norrie
Minister of Housing and Consumer Affairs
Halifax
Printed by Queen''s Printer for Nova Scotia
Explanatory Note
This Bill provides that on and after July 1, 1996, every motor vehicle liability policy shall
provide for payment by the insurer of all sums that
(a) an owner or passenger falling within the definition of a "person insured under
the contract" set out in the proposed clause 139(1)(b) in Clause 3 of the Bill is legally
entitled to recover from the owner or driver of an uninsured automobile or unidentified
automobile as damages for bodily injury resulting from an accident involving an
automobile;
(b) a person is legally entitled to recover from the owner or driver of an
uninsured automobile or unidentified automobile as damages for bodily injury to or the
death of a person insured under the contract resulting from an accident involving an
automobile; and
(c) an owner or passenger falling within the definition of a "person insured under
the contract" is legally entitled to recover from the identified owner or driver of an
uninsured automobile as damages for accidental damage to the insured automobile or its
contents, or to both the insured automobile and its contents, resulting from an accident
involving an automobile.
At present, motor vehicle liability policies do not provide such coverage and any person making
such a claim may not claim against an insurer but must obtain a judgment against the party at
fault and make a claim against Judgment Recovery (N.S.) Ltd. This Bill restricts applications
to Judgment Recovery (N.S.) Ltd. for recovery of judgments to those judgments for damage
occasioned by or arising out of the operation, ownership, maintenance or use of a motor vehicle
before July 1,1996.
In addition, this Bill provides that on and after July 1, 1996, a person who is involved in
an automobile accident who does not have access to such coverage or who has other insurance
that is inadequate may apply for payment of the claim to the Facility Association but that no such
person may apply for payment of damage to an automobile owned by or registered in that
person's name if, at the time of the accident, that person was driving the automobile or had the
care or control of it.
An Act to Amend Chapter 231
of the Revised Statutes, 1989,
the Insurance Act, and Chapter 293
of the Revised Statutes, 1989,
the Motor Vehicle Act
Be it enacted by the Governor and Assembly as follows:
1 Clause 104(a) of Chapter 231 of the Revised Statutes, 1989, the Insurance Act, as
amended by Chapter 14 of the Acts of 1992, is further amended by striking out "any other body
having similar objects" in the fifth line and substituting "the Facility Association".
2 Section 106 of Chapter 231 is amended by adding immediately after subsection (1)
the following subsection:
(1A) Every insurer carrying on the business of automobile insurance in the
Province shall provide, in accordance with Sections 139A to 139U, payment with respect
to claims for damages made by persons who are not insured under a contract within the
meaning of Section 139 and who have no other insurance or have other insurance that is
inadequate, with respect to the damages claimed, and shall, in accordance with this Act
and the articles of association or by-laws of a plan to which subsection (1) applies,
establish and implement a plan of operation and carry out its obligations in the Province
with respect to that plan of operation.
3 Section 139 of Chapter 231 is repealed and the following Sections substituted:
139 (1) In this Section,
(a) "insured automobile" means the automobile as defined or
described in the contract;
(b) "person insured under the contract" means
(i) in respect of a claim for damage to the insured
automobile, the owner of the automobile,
(ii) in respect of a claim for damage to the contents of the
insured automobile, the owner of the contents,
(iii) in respect of a claim for bodily injury or death,
(A) any person while driving, being carried in or upon
or entering or getting on to or alighting from the insured
automobile,
(B) the insured named in the contract and, if residing
in the same dwelling premises as the insured named in the
contract, the insured's spouse and any dependent relative,
(I) while driving, being carried in or upon or
entering or getting on to or alighting from an uninsured
automobile,
(II) who is struck by an uninsured or unidentified
automobile, but does not include a person struck while
driving, being carried in or upon or entering or getting on
to or alighting from railway rolling stock that runs on
rails,
(C) if the insured named in the contract is a
corporation, unincorporated association or partnership, any
director, officer, employee or partner of the insured named in
the contract, for whose regular use the insured automobile is
furnished and, if residing in the same dwelling place, the
insured's spouse and any dependent relative,
(I) while driving, being carried in or upon or
entering or getting on to or alighting from an uninsured
automobile, or
(II) who is struck by an uninsured or unidentified
automobile, but does not include a person struck while
driving, being carried in or upon or entering or getting on
to or alighting from railway rolling stock that runs on
rails,
if such director, officer, employee or partner or the spouse of
that director, officer, employee or partner is not the owner of an
automobile insured under a contract;
(c) "unidentified automobile" means an automobile with respect to
which the identity of either the owner or driver cannot be ascertained;
(d) "uninsured automobile" means an automobile with respect to
which neither the owner nor driver of it has applicable and collectable bodily
injury liability and property damage liability insurance for its ownership, use
or operation, but does not include an automobile owned by or registered in
the name of the insured or the insured's spouse.
(2) Every contract evidenced by a motor vehicle liability policy shall
provide for payment by the insurer of all sums that
(a) a person insured under the contract is legally entitled to recover
from the owner or driver of an uninsured automobile or unidentified
automobile as damages for bodily injuries resulting from an accident
involving an automobile;
(b) a person is legally entitled to recover from the owner or driver
of an uninsured automobile or unidentified automobile as damages for bodily
injury to or the death of a person insured under the contract resulting from
an accident involving an automobile; and
(c) a person insured under the contract is legally entitled to recover
from the identified owner or driver of an uninsured automobile as damages
for accidental damage to the insured automobile or its contents, or to both
the insured automobile and its contents, resulting from an accident involving
an automobile,
subject to the terms, conditions, provisions, exclusions and limits prescribed by regulation.
(3) A dependent relative referred to in the definition "person insured under
the contract" in subsection (1) who
(a) is the owner of an automobile insured under a contract; or
(b) sustains bodily injuries or dies as the result of an accident while
driving, being carried in or upon or entering or getting on to or alighting
from the dependent relative's own uninsured automobile,
is not a dependent relative for the purpose of this Section.
(4) The Governor in Council may make regulations
(a) prescribing, amending or altering the terms, conditions,
provisions, exclusions and limits with respect to payments under subsection
(2);
(b) deeming any term, condition, provision, exclusion or limit as
prescribed, amended or altered by a regulation made pursuant to clause (a)
to be included in any motor vehicle liability policy made or renewed on or
after the effective date of the regulation and in any motor vehicle liability
policy that is subsisting on the effective date of the regulation;
(c) requiring that terms, conditions, provisions, exclusions and
limits as prescribed, amended or altered by a regulation made pursuant to
clause (a) be attached to or included in every motor vehicle liability policy as
a schedule in or to the policy.
(5) Any payments made or available to a person under a contract of
insurance referred to in subsection (2) constitute, to the extent of such payments, a release
by the person or the person's personal representative or any person claiming through or
under the person or by virtue of the Fatal Injuries Act, of any claim that the person may
have under subsection (2), but nothing in this subsection precludes an insurer from
demanding, as a condition precedent to payment, a release to the extent of the payment
from the person insured or the person's personal representative or any other person.
(6) A release within the meaning of subsection (5) does not enure to the
benefit of the person or persons against whom the insurer has a right to subrogation
under this Act.
(7) This Section applies to all contracts evidenced by motor vehicle liability
policies made or renewed on or after July 1, 1996, and all contracts evidenced by motor
vehicle liability policies that were subsisting on that day are deemed to provide for
payments referred to in subsection (2) in respect of an accident arising out of the use or
operation of an automobile occurring on or after that day.
139A (1) Sections 139B to 139U apply only to matters arising out of accidents
involving an automobile occurring on or after July 1, 1996.
(2) Sections 139B to 139U apply only to a claim for damages by a person
who is not insured under a contract within the meaning of Section 139 and who has other
insurance that is inadequate, with respect to the damages claimed, and, subject to
subsection (4), no person other than one who is not insured under a contract within the
meaning of Section 139 and who has no other insurance, or who has other insurance that
is inadequate, with respect to the damages claimed, may apply to the Facility Association
for payment of damages in accordance with Sections 139B to 139U.
(3) Notwithstanding any other provision of this Act, no person shall apply
to the Facility Association pursuant to Section 139B or 139C for payment of damages in
respect of damage to an automobile owned by or registered in the name of the person,
notwithstanding that the person may have had no applicable and collectable insurance
with respect to that automobile at the time of the accident in which the damage was
incurred if, at the time of the accident, the person was driving the automobile or had the
care or control of it, whether it was in motion or not.
(4) Where a question arises between a person's insurer and the Facility
Association as to whether a person is insured under a contract of insurance within the
meaning of Section 139 or has other insurance with respect to the damages claimed, the
person may, at the person's option, make a claim for damages against the insurer or
apply to the Facility Association for payment of damages in accordance with Sections
139B to 139U.
(5) Where, in the circumstances described in subsection (4), a person elects
to make a claim for damages against the person's insurer and liability is denied on the
grounds that the person is not insured under a contract within the meaning of Section 139
and has no other insurance with respect to the damages claimed, the person may proceed,
in accordance with Sections 139B to 139U, to apply to the Facility Association for
payment of damages.
(6) Where, in the circumstances described in subsection (4) or (5), a person
elects to apply, in accordance with Sections 139B to 139U, to the Facility Association for
payment of damages and the Facility Association makes a payment to the person in
accordance with those Sections, the Facility Association is subrogated to the extent of
those payments to the rights of the person to whom the amount is paid and, where in the
opinion of the Facility Association, the person is insured under a contract within the
meaning of Section 139 or has other insurance with respect to the damages claimed, the
Facility Association may bring an action in its name or in the name of such person against
the insurer to recover the amount of the payment.
(7) No payment made by the Facility Association in the circumstances
described in subsection (6) bars the person to whom it is made from making a claim
against the person's insurer for damages in excess of the amount of the payment by the
Facility Association.
139B (1) A person who would have a cause of action against an owner of an
automobile or a driver of an automobile, other than an automobile owned by or under the
care and control of that person, for damages for injuries to or the death of any person or
damage to property, arising out of the operation, care or control of the automobile in the
Province, except a person entitled to make application pursuant to Section 139C, may
make application in a form provided by the Facility Association for payment by the Facility
Association of the damages in respect of such death, personal injury or property damage.
(2) Upon receipt of an application pursuant to subsection (1), the Facility
Association shall, by registered mail, forward a notice of the application for payment by
the Facility Association to the owner and the driver of the automobile against whom
liability for the damages occasioned by the operation of the automobile is alleged, to their
latest known addresses or to their latest addresses as recorded with the Registrar of Motor
Vehicles.
(3) The Facility Association may, in respect of an application made
pursuant to subsection (1), make payment, subject to the same conditions, limits,
deductions and exclusions that would apply to an application by a judgment creditor in
accordance with Sections 139C to 139U, with the necessary modifications, of an amount
that it considers proper in all the circumstances if
(a) the applicant executes a release under seal of all claims arising
out of the automobile accident, subject to subsections (6) and (7) of Section
139A, that occasioned the damages to be paid by the Facility Association;
and
(b) subject to clause (c), the owner and driver of the automobile
against whom liability for the damages occasioned by the operation of the
automobile is alleged, execute a consent to the payment of the sum for
damages by the Facility Association and also execute under seal an
undertaking in a form provided by the Facility Association to repay to the
Facility Association the amount to be paid by the Facility Association; or
(c) the person to whom a notice is sent in accordance with
subsection (2) does not reply within thirty days of the date upon which the
notice was sent either
(i) by mail, or
(ii) by attending in person at the place named in the notice,
and dispute liability to the person making application pursuant to subsection
(1).
(4) Where an amount is paid out by the Facility Association pursuant to
subsection (3) or (5), the Facility Association shall, to the extent of the amount paid out,
be deemed to be a creditor of every person against whom liability for the damages
occasioned by the operation of the automobile is alleged and who was given notice
pursuant to subsection (2), and upon the filing with a prothonotary of the Supreme Court
of Nova Scotia of a certificate of the Facility Association in a form prescribed by the
regulations stating the amount paid out, judgment may be entered in the name of the
Facility Association as a judgment of the Supreme Court of Nova Scotia, and, without the
consent of the Facility Association, no execution under a judgment obtained with respect
to the damages referred to above shall be made by any person other than the Facility
Association against the property of the judgment debtor until the judgment debt of the
Facility Association is satisfied.
(5) The Facility Association may, in its discretion, make interim payments
to claimants claiming damages for personal injury where the responsible person or
persons do not dispute their liability after a notice is sent to them in accordance with
subsection (2).
139C Subject to Section 139H, where a person obtains in any court in the Province
a judgment against
(a) an owner of an automobile or a driver of an automobile, other than an
automobile owned by or under the care or control of the person, for damages for
injuries to or the death of any person or damage to property, arising out of the
operation, care or control of an automobile in the Province; or
(b) a party unknown as contemplated by Section 139K, for damages for
injury to or the death of any person arising out of the operation, care or control of
an automobile in the Province,
upon the determination of all proceedings, including appeals, the person may apply to the
Facility Association for payment of the amounts in respect of the judgment to which the
person is entitled in accordance with Sections 139B to 139U.
139D The Facility Association shall pay out to the person the amount of the
judgment including the costs included in the judgment, or that part of the judgment
including the costs to which the person is entitled, if
(a) the person makes an affidavit
(i) as to what amount the person has recovered or is or was entitled
to recover from any source, for or in respect of any injury, death or damage
to a person or property arising out of the operation, care or control of the
automobile by the owner or driver of it against whom the judgment was
obtained whether or not in the action damages were claimed for or in respect
of the injury, death or damage and as to what compensation or services or
benefits with a pecuniary value the person has recovered or received or is or
was entitled to recover or receive for or in respect of the injury, death or
damage, and
(ii) that the application is not made by or on behalf of an insurer in
respect of any amount paid or payable by the insurer by reason of the
existence of a contract of insurance and that, subject to subsection (4) of
Section 139A, no part of the amount sought to be paid by the Facility
Association is sought in lieu of making a claim or receiving a payment that
is or was payable by reason of the existence of a contract of insurance and
that no part of the amount sought will be paid to an insurer to reimburse or
otherwise indemnify an insurer in respect of any amount paid or payable by
the insurer by reason of the existence of a contract of insurance; and
(b) the solicitor for the person makes an affidavit
(i) that the judgment is a judgment as described in Section 139C,
(ii) giving particulars of the amount of damages for or in respect of
injury or death or damage to property and the costs included in the judgment,
(iii) that in so far as the solicitor was advised by any person and
learned of any facts during the litigation
(A) the solicitor, subject to subsection (4) of Section 139A, has
commenced action against all persons against whom the person might
reasonably be considered as having a cause of action for or in respect
of the injury, death or damage to person or property as described in
subclause (i) of clause (a),
(B) the application is not made by or on behalf of an insurer
in respect of any amount paid or payable by the insurer by reason of
the existence of a contract of insurance and that, subject to subsection
(4) of Section 139A, no part of the amount sought to be paid by the
Facility Association is sought in lieu of making a claim or receiving a
payment that is or was payable by reason of the existence of a contract
of insurance and that no part of the amount sought will be paid to an
insurer to reimburse or otherwise indemnify an insurer in respect of
any amount paid or payable by the insurer by reason of the existence
of a contract of insurance, and
(C) that except as disclosed in the applicant's affidavit, the
person is and was not entitled to recover, from any source, nor to
receive compensation or services or benefits with a pecuniary value,
for or in respect of any injury, death or damage to person or property
as described in subclause (i) of clause (a), and
(iv) that the action was defended throughout to judgment or that
there was a default or a consent or agreement by or on behalf of the
defendant and that the solicitor complied with Section 139H; and
(c) the affidavits together with
(i) a copy of the statement of claim,
(ii) a certified copy of the judgment,
(iii) the assignment of judgment, and
(iv) where applicable, the solicitor's taxed bill of costs,
are forwarded to the Facility Association.
139E (1) Where, on an application to the Facility Association,
(a) all the documents required by Section 139D are not forwarded;
(b) any matter required to be in an affidavit is omitted;
(c) the amount requested to be paid by the Facility Association is, in
its opinion, greater than the amount to which the applicant is entitled under
Sections 139B to 139U; or
(d) for any reason, the Facility Association wishes the application
for payment to go before a judge of the Supreme Court of Nova Scotia for an
order for payment by the Facility Association,
the Facility Association shall, within a reasonable period of time, advise the person of its
objections to the application for payment and, subject to subsection (2), advise the person
that the person must obtain an order of a judge of the Supreme Court of Nova Scotia for
payment by the Facility Association.
(2) The Facility Association shall advise the person to remedy any objection
it may have against payment and, if the objection is remedied to the satisfaction of the
Facility Association, it shall then make payment as hereinbefore provided.
139F Where a person is advised that payment shall not be made except by order of
a judge of the Supreme Court of Nova Scotia, the person may apply to a judge of the
Supreme Court of Nova Scotia upon notice to the Facility Association, for an order
directing payment by the Facility Association of the amount in respect of the judgment to
which the person is entitled under Sections 139B to 139U.
139G (1) A judge of the Supreme Court of Nova Scotia may make an order
directed to the Facility Association requiring it, subject to Sections 139B to 139U, to pay
the amount in respect of the judgment to which the judgment creditor is entitled in
accordance with those Sections, if the applicant, in the application, satisfies the judge that
(a) the applicant has obtained a judgment as set out in Section 139C
stating, whether against an owner, a driver or a party unknown, the amount
of the judgment and the amount owing on the judgment at the date of the
application;
(b) subject to subsection 139A(4), the applicant has commenced
action against all persons against whom the applicant might reasonably be
considered as having a cause of action for or in respect of any injury, death
or damage to person or property arising out of the operation, care or control
of the automobile by the owner or driver against whom the judgment was
obtained;
(c) the applicant has prosecuted every action in good faith to
judgment or dismissal;
(d) with respect to the amount to be paid, the applicant has not
recovered and is and was not entitled to recover, from any source, any
amount for or in respect of the injury, death or damage to person or property
described in clause (b);
(e) with respect to the amount to be paid, the applicant has not
received and is and was not entitled to receive from any source any
compensation or services or benefits with a pecuniary value for or in respect
of the injury, death or damage to person or property described in clause (b);
(f) the application is not made by or on behalf of an insurer in
respect of any amount paid or payable by the insurer by reason of the
existence of a contract of insurance, and that, subject to subsection (4) of
Section 139A, no part of the amount sought to be paid out by the Facility
Association is sought in lieu of making a claim or receiving a payment that
is or was payable by reason of the existence of a contract of insurance and
that no part of the amount sought will be paid to an insurer to reimburse or
otherwise indemnify an insurer in respect of any amount paid or payable by
the insurer by reason of the existence of a contract of insurance; and
(g) the amount sought to be paid out by the Facility Association does
not exceed the maximum amount payable under Section 139Q.
(2) The Facility Association may appear and be heard on the application
referred to in subsection (1) and may show cause why the order should not be made.
139H (1) Where an action is commenced and the defendant
(a) fails to file and serve a statement of defence;
(b) fails to appear in person or by counsel at an examination for
discovery, trial or appeal or notifies the plaintiff that such failure is likely; or
(c) consents or agrees to the entering of judgment,
no order may be made pursuant to Section 139G, and no money is required to be paid by
the Facility Association in respect of a judgment obtained on such proceedings, unless
before taking any further step in the proceedings, the plaintiff gives written notice, in the
form prescribed by the regulations, to the Facility Association of such failure, notification,
consent or agreement and affords it reasonable time to investigate the circumstances of
the claim and an opportunity to take such action as it considers advisable pursuant to
subsection (2).
(2) Where the Facility Association receives notice pursuant to subsection
(1), it may, if it considers it advisable, on behalf and in the name of the defendant, take any
step to enforce the defendant's right to compensation or indemnity in respect of or arising
out of the claim that is available to the defendant, and take any step in the proceedings,
including a consent to judgment in such amount as it may consider proper in the
circumstances, and all acts done in accordance with this subsection are deemed to be the
acts of the defendant.
139I (1) No money is required to be paid by the Facility Association in
compliance with an order made pursuant to Section 139G until the judgment of the
applicant or the portion of the judgment for which the Facility Association is liable or the
applicant's interest in the judgment is assigned to the Facility Association.
(2) Upon filing a copy of the assignment of judgment, certified by the
Facility Association to be a true copy, with the registrar, prothonotary or clerk, as the
case may be, of the court in which the judgment was obtained, the Facility Association
shall, to the extent of the amount of the assignment, be deemed to be the judgment creditor.
(3) Where execution is issued in the name of the judgment creditor and a
copy of the assignment of judgment, certified in accordance with subsection (2), is filed
with the sheriff having the execution order, subsection (2) applies mutatis mutandis.
139J Where injury to or the death of any person arises out of the operation, care
or control of an automobile in the Province but the identity of the automobile, the owner
and the driver of it cannot be established, any person who would have a cause of action
against the owner or driver in respect of such injury or death may, upon notice to the
Facility Association, apply to a judge of the Supreme Court of Nova Scotia for an order
permitting the person to bring an action in the Supreme Court of Nova Scotia against a
nominal defendant to be designated as a party unknown.
139K A judge of the Supreme Court of Nova Scotia may make an order permitting
the applicant to bring an action against a party unknown if satisfied that
(a) there are reasonable grounds for bringing the action;
(b) all reasonable efforts have been made to ascertain the identity of the
automobile involved and of the owner and driver of it;
(c) the identity of the automobile involved and of the owner and driver of
it cannot be established; and
(d) the application is not made by or on behalf of an insurer in respect of
any amount paid or payable by reason of the existence of a contract of insurance,
and that, subject to subsection (4) of Section 139A, no part of the amount sought to
be recovered in the intended action is sought in lieu of making a claim or receiving
a payment that is or was payable by reason of the existence of a contract of
insurance and that no part of the amount so sought will be paid to an insurer to
reimburse or otherwise indemnify the insurer in respect of any amount paid or
payable by it by reason of the existence of a contract of insurance.
139L (1) In any action brought against a party unknown pursuant to Sections
139J and 139K, the Facility Association has all the rights of a defendant in the action, but
nothing in this Section imposes any liability on the Facility Association.
(2) In any action to which subsection (1) applies, the Facility Association
may plead the general issue and give the special matter in evidence.
139M (1) Where an action for damages for injury to or the death of any person,
arising out of the operation, care or control of an automobile in the Province has been
dismissed and the judge, in dismissing the action, states in writing that the injury or death
arose out of the operation, care or control of an automobile
(a) the identity of which and the owner and driver of which is not
established; or
(b) at a time when such automobile was, without the consent of the
owner, in the possession of some person other than the owner and the identity
of the driver is not established,
Sections 139J and 139K apply for a period of three months from the date of such
dismissal, notwithstanding any Act limiting the time within which an action may be
brought.
(2) Where, in accordance with subsection (1), an application is made
pursuant to Section 139J, clause (c) of Section 139K does not apply.
139N (1) Where an action for damages for injury to or the death of any person
arising out of the operation, care or control of an automobile in the Province is
commenced and the defendant by the pleadings alleges that the plaintiff's damage was
caused by a party unknown, the plaintiff may make application to add the party unknown
as a defendant and Section 139K applies mutatis mutandis.
(2) This Section does not limit or restrict any right to add or join any
person as a party to an action in accordance with the practice of the court in which the
action is pending.
139O (1) Where judgment has been obtained against a party unknown, the
Facility Association may, at any time, bring action in the Supreme Court of Nova Scotia
against any person for a declaratory judgment, declaring that person to have been, at the
time of the accident, the owner or driver of the automobile in respect of the operation, care
or control of which the judgment was obtained, and the court may give judgment
accordingly.
(2) Where a declaratory judgment is issued pursuant to this Section,
(a) the person declared in the judgment to be the owner or driver is
deemed to have been the defendant in the action in which judgment was
obtained against the party unknown and the judgment against the party
unknown is deemed to be a judgment against such person; and
(b) the Facility Association is deemed to have obtained a judgment
against such person for the amount of all moneys paid by it in respect of the
judgment against the party unknown and, accordingly, has all the rights of
a judgment creditor, including the right to recover any money that would
have been payable in respect of the death or injury under any contract of
insurance that was in force at the time of the accident, notwithstanding any
Act limiting the time within which an action may be brought.
(3) Where the injury or death arose out of the operation, care or control
of the automobile at a time when the automobile was, without the owner's consent, in the
possession of some person other than the owner, such action shall be disposed of in the
same manner as though the identity of the owner had not been established.
139P In an action against a party unknown, a judgment against a party unknown
shall not be granted unless the court in which the action is brought is satisfied that all
reasonable efforts have been made by the claiming party to ascertain the identity of the
automobile and the owner and the driver of it and that such identity cannot be established.
139Q (1) The Facility Association is not required to pay
(a) any amount in respect of a judgment in favour of a person who
ordinarily resides outside the Province, unless such person resides in a
jurisdiction that provides substantially the same benefits to persons who
ordinarily reside in the Province, but no payment shall include an amount
that would not be payable by the law of the jurisdiction in which such person
resides;
(b) more than two hundred thousand dollars, exclusive of costs, for
injury to or the death of one or more persons or damage to property resulting
from any one accident occurring on or after July 1, 1996, except that
payments with respect to damages for damage to property shall be limited to
claims for damages in excess of two hundred thousand dollars,
but, subject to subsection (2) and the regulations, where the judgment creditor recovers
or is or was entitled to recover, from any source, for or in respect of any injury, death or
damage to person or property arising out of the operation, care or control of the
automobile by the owner or driver against whom the judgment was obtained whether or
not in the action damages were claimed for or in respect of the injury, death or damage
or where the judgment creditor receives or is or was entitled to receive, from any source,
compensation or services or benefits with a pecuniary value for or in respect of the injury,
death or damage, the amount so recovered or received and the amount that the judgment
creditor is or was entitled to recover or receive and the amount of compensation and
pecuniary value of any services or benefits received or that the judgment creditor is or was
entitled to receive shall be deducted from the amount of damages included in the judgment
and only the amount of damages included in the judgment after such deductions, or the
maximum amount payable under clause (b), whichever is less, is required to be paid by
the Facility Association.
(2) In computing the amount payable by the Facility Association, no
reduction shall be made
(a) with respect to any amount recovered or recoverable by the
judgment creditor under a contract of life insurance, where the amount is
payable in respect of the death of the person;
(b) with respect to any compensation or the pecuniary value of any
services or benefits that the judgment creditor received, or is or was entitled
to receive under the Social Assistance Act or the Health Services and
Insurance Act;
(c) with respect to
(i) any amount recovered by the judgment creditor, or that
the judgment creditor is entitled to recover, from such sources as may
be prescribed by the regulations, or
(ii) any amount of compensation, or the pecuniary value of
any benefits or services, received by the judgment creditor, or that the
judgment creditor is entitled to receive, from such sources as may be
prescribed by the regulations or where the compensation, benefits or
services are of a kind prescribed by the regulations.
(3) For the purpose of this Section, the question of where a person
ordinarily resides shall be determined as of the date of the accident as a result of which
the damages are claimed.
139R (1) Subject to Section 139B, no costs, other than costs taxed on a party and
party basis, are required to be paid by the Facility Association.
(2) Where an action has been maintained in part by an insurer and a part
only of the amount of the judgment in the action is payable by the Facility Association,
there shall not be paid by the Facility Association more than that part of the party and
party costs of the action that bears the same ratio to the whole of such costs as the part
of the judgment payable by the Facility Association bears to the total amount of the
judgment.
139S The practice and procedure of the Supreme Court of Nova Scotia or the court
in which the application or action is brought, including the right of appeal and the
practice and procedure relating to appeals, apply to any application or action pursuant
to Sections 139B to 139U.
139T No application for the payment of damages shall be made to the Facility
Association by or on behalf of the Government of Canada or a province of Canada or the
United States of America or a state of the United States or any political subdivision or
corporation or agency of such Governments.
139U For the purpose of Sections 139B to 139T, all owners and drivers whose
liability results in payment by the Facility Association are deemed to be sui juris and all
actions taken by the Facility Association in the settlement of claims and actions on their
behalf are deemed to be taken upon their instructions and with their full consent.
139V The Governor in Council may make regulations
(a) generally respecting forms to be used for the purpose of Sections 139B
to 139U and prescribing forms required to be prescribed;
(b) prescribing sources for the purpose of subclause (i) of clause (c) of
subsection (2) of Section 139Q;
(c) prescribing, for the purpose of subclause (ii) of clause (c) of subsection
(2) of Section 139Q, sources of compensation, benefits and services, and kinds of
compensation, benefits, and services.
4 Section 213 of Chapter 293 of the Revised Statutes, 1989, the Motor Vehicle Act, is
amended by adding immediately after subsection (1) the following subsection:
(1A) Notwithstanding subsection (1), no application for payment of a judgment may
be made pursuant to that subsection where the judgment is recovered in an action for
damages and the damages arose out of the operation, ownership, maintenance or use of
a motor vehicle on or after July 1, 1996.