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BILL NO. 32
Government Bill
3rd Session, 56th General Assembly
Nova Scotia
44 Elizabeth II, 1995-96
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
CHAPTER 20
ACTS OF 1995-96
The Honourable Eleanor E. Norrie
Minister of Housing and Consumer Affairs
AS ASSENTED TO BY THE LIEUTENANT GOVERNOR
JANUARY 11, 1996
Halifax
Printed by Queen's Printer for Nova Scotia
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 Section 104 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
(a) striking out "any other body having similar objects"
in the fifth line of clause (a) and substituting "the Facility
Association"; and
(b) adding immediately after clause (e) the following
clause:
(ea) "Facility Association" means the Facility
Association continued under the Compulsory
Automobile Insurance Act (Ontario) and includes any
successor to it;
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 be a participant
in and be subject to the terms and conditions of the Facility
Association plan of operations which will 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3 Section 139 of Chapter 231 is repealed and the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 Sec
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, 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,
(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 no
other insurance, or 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 regis-
tered 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 plain-
tiff'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 judg-
ment 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, accord-
ingly, 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 and
fifty 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.