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

Family members say Annie Kong wanted nothing more than to gather with all her extended family under one roof at her West Vancouver home for Christmas in 2022.

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

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

Annie Kong would never get that wish. 

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

The family says their anguish has been exacerbated by B.C.'s no-fault insurance system, which not only limited the Kongs' lump-sum compensation in Annie's death but also restricted the family's rights to seek additional recourse through lawsuits.

On Tuesday, the woman behind the 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 charged with driving without due care and attention under B.C.'s Motor Vehicle Act.

No-fault controversy

The issue of no-fault insurance has drawn debate from the major parties ahead of this fall's provincial election. 

The B.C. Conservatives are promising exemptions to the rule that prevents families from suing for compensation in most cases, while the B.C. NDP say the change to no-fault brought the province's public auto insurer "back into the black" after years of deficits.

No-fault insurance at the Crown-owned Insurance Corporation of B.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 an insurance rebate 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 in motor vehicle accidents" should be exempt from the no-fault regime and be allowed to "pursue fair and reasonable compensation in the British Columbia court system."

In May, the B.C. New Democrats issued a release criticizing Rustad's stance, noting changes, including no-fault insurance, 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.

The insurance provider also said "drivers who cause crashes or drive dangerously are still held accountable" as "they will continue to pay more for their insurance."

"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-fault driver unless the case involves 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 of B.C. president Michael Elliott said while insurance officials promised "potentially serious consequences" for drivers convicted criminally in a case, it is "misleading" to present that as a proper opportunity for victims seeking recourse beyond no-fault insurance. 

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 the Motor Vehicle Act, 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 to death while 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 almost no input from family members 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 with no financial trappings, no big 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 this no-fault legislation — 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." 

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

The B.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 a case is processed under the Motor Vehicle Act or as a criminal offence.

Nigel Kong said the explanation doesn't give his family comfort.

"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."