A-25, r. 12 - Regulation respecting indemnities payable under Title II of the Automobile Insurance Act

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chapter A-25, r. 12
Regulation respecting indemnities payable under Title II of the Automobile Insurance Act
AUTOMOBILE INSURANCE — INDEMNITIES
Automobile Insurance Act
(chapter A-25, ss. 37, 61, 76 and 195)
A-25
September 1 2012
This Regulation remains in force and continues to apply to persons who have suffered bodily injury before 1 January 1990 (1989, chapter 15, s. 23; 1995, chapter 55, s. 7)
CHAPTER I
RULES RESPECTING THE REIMBURSEMENT OF EXPENSES
DIVISION I
(Implicitly revoked by 1989, chapter 15, s. 23)
O.C. 1263-83, Div. I.
§ 1.  — (Implicitly revoked by 1989, chapter 15, s. 23)
O.C. 1263-83, Sd. 1.
1. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 1.
2. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 2.
3. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 3.
4. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 4.
5. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 5.
6. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 6.
7. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 7.
8. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 8.
9. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 9.
10. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 10.
§ 2.  — (Implicitly revoked by 1989, chapter 15, s. 23)
O.C. 1263-83, Sd. 2.
11. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 11.
12. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 12.
13. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 13.
14. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 14.
15. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 15.
16. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 16.
17. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 17.
§ 3.  — (Implicitly revoked by 1989, chapter 15, s. 23)
O.C. 1263-83, Sd. 3.
18. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 18.
§ 4.  — (Implicitly revoked by 1989, chapter 15, s. 23)
O.C. 1263-83, Sd. 4.
19. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 19.
20. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 20.
21. (Implicitly revoked by 1989, chapter 15, s. 23).
O.C. 1263-83, s. 21.
DIVISION II
(Implicitly replaced by 1989, chapter 15, s. 26)
O.C. 1263-83, Div. II.
22. (Implicitly replaced by 1989, chapter 15, s. 26).
O.C. 1263-83, s. 22.
23. (Implicitly replaced by 1989, chapter 15, s. 26).
O.C. 1263-83, s. 23.
CHAPTER II
SPECIAL RULES WITH RESPECT TO CERTAIN VICTIMS
DIVISION I
RULES REGARDING THE CONDITION OF CERTAIN VICTIMS
§ 1.  — Students
24. For the purposes of section 21 of the Act, a student is considered to attend an educational institution of secondary or post-secondary level on a full-time basis from the time that he or she is enrolled full-time in a program given at the said establishment until he or she either completes his or her final term, quits, or no longer meets the requirements of the establishment for continuing his or her studies, depending upon which occurs first.
O.C. 1263-83, s. 24.
§ 2.  — Persons at home
25. For the purposes of section 23 of the Act, a person at home may be considered incapable of attending to one or more of the usual occupations of such a person if the physical or mental activity of that person at home, taking into account his or her age, is no longer sufficient to enable him or her to carry out, as he or she normally would, one or more of the household chores, care for his or her children or for any other member of his or her household, prepare meals and attend to clothing, provided the said person at home was responsible for that work before the accident.
O.C. 1263-83, s. 25.
§ 3.  — Minors
26. For the purposes of section 22 of the Act, an accident victim who is a minor may be considered incapable of performing the usual activities of a person of his or her age where the minor:
(1)  if under 6 months of age, is in a comatose state or cannot sleep or be fed as an infant normally would;
(2)  if between 6 months and 24 months of age, is incapable of making the movements and gestures usually considered typical for a child of his or her age due to a severe inhibition of his or her mobility necessitated by his or her condition;
(3)  if between 2 years of age and his or her sixth birthday, is incapable of walking or of performing those movements considered to be the most important and the most typical for a child of his or her age, or is not able to express his or herself as well as a child of his or her age usually does; or
(4)  if 6 years of age or over, is not able to continue or begin all his or her normal studies.
O.C. 1263-83, s. 26.
§ 4.  — The disabled persons referred to in section 24 of the Act
27. For the purposes of section 24 of the Act, a victim shall be deemed unable to work for any reason whatever, except for age, if the physical or mental capacity of the victim previous to the accident was not sufficient to enable him or her to hold a regular full-time job for which he or she would have been paid the minimum wage at the very least.
O.C. 1263-83, s. 27.
28. For the purposes of section 24 of the Act, a victim shall be considered to be suffering from a serious physical or mental disability if the bodily harm that the victim sustained in the accident has seriously altered his or her condition and that the resulting disability persists for more than 12 consecutive weeks.
O.C. 1263-83, s. 28.
DIVISION II
DEPENDANTS
29. For the purposes of paragraph 20 of section 1 of the Act, the expression «to be wholly or substantially maintained by the income of the victim» means, when applied to dependants, that at the time of the accident the victim was providing, from his or her income or earnings from all sources, for more than 50% of the basic needs and maintenance costs of that dependant.
O.C. 1263-83, s. 29.
30. Unless otherwise indicated, a child is presumed to be wholly or substantially maintained by the income of the accident victim if the child has no spouse, is unemployed and:
(1)  is a minor;
(2)  is between 18 and 25 years of age and has been attending a university, college or secondary or post-secondary establishment on a full-time basis ever since his or her eighteenth birthday; or
(3)  is over 18 years of age and has been an invalid ever since his or her eighteenth birthday.
O.C. 1263-83, s. 30.
30.1. For the purposes of section 26.1 of the Act, a person may become a dependant of the victim after the accident:
(1)  if he marries the victim and cohabits with him;
(2)  where the person and the victim live together as husband and wife:
i.  if the person and the victim reside together for 3 years, or for 1 year if a child issues from their union; and
ii.  if they are publicly represented as spouses;
(3)  where the person is or has been married to the victim and:
i.  is separated from him de facto or legally; or
ii.  his marriage to the victim has been dissolved by a final judgment of divorce or declared null by a declaration of nullity of marriage;
if the person is entitled to receive an alimentary pension from the victim pursuant to a judgment or an agreement;
(4)  where the person:
i.  is related to the victim by blood or adoption;
ii.  stands in loco parentis to the victim; or
iii.  is a person to whom the victim stands in loco parentis;
if the victim, from his income or earnings from all sources, provides for more than 50% of the basic needs and maintenance costs of the person.
O.C. 504-84, s. 1.
30.2. For the purposes of section 26.1 of the Act, a person is considered a dependant of the victim as long as the situation continues which made him a dependant under paragraph 20 of section 1 of the Act or under section 30.1.
O.C. 504-84, s. 1.
31. For the purposes of subsection 5 of section 37 of the Act, a dependant other than the spouse of a victim is deemed to remain a dependant of the victim despite the latter’s death:
(1)  where the dependant is a dependant described under subparagraph b of paragraph 20 of section 1 of the Act:
(a)  until such time as he or she marries or becomes the de facto spouse of another person, if this was not already the case at the time of the victim’s death;
(b)  until his or her income or earnings from all sources, except for the death benefits paid by the Société de l’assurance automobile du Québec, is sufficient for providing for his or her own basic needs and maintenance costs, if this was not already the case at the time of the victim’s death;
(c)  for a period of 3 years from the date of the victim’s death; or
(d)  until his or her own death;
whichever occurs first;
(2)  where the dependant is a dependant described under subparagraph c of paragraph 20 of section 1 of the Act:
(a)  until his or her income or earnings from all sources, except for the death benefits paid by the Société, is sufficient for providing for his or her own basic needs and maintenance costs, if this was not already the case at the time of the victim’s death;
(b)  until his or her eighteenth birthday, if he or she was under age 15 at the time of the victim’s death;
(c)  until such time as he or she marries or becomes the de facto spouse of another person, if this was not already the case at the time of the victim’s death;
(d)  for a period of 3 years from the date of the victim’s death, if the dependant was between 15 and 65 years of age at the time of the victim’s death; or
(e)  until his or her own death;
whichever occurs first.
O.C. 1263-83, s. 31.
32. Subparagraph c of paragraph 1 of section 31 does not apply to dependants who are still unable to provide for their basic needs and maintenance costs at the end of the 3-year period.
O.C. 1263-83, s. 32.
33. Subparagraph b of paragraph 2 of section 31 does not apply to dependants who are attending a secondary or post-secondary school on a full-time basis when they turn 18.
Subparagraph d of paragraph 2 of section 31 does not apply to dependants who were under age 22 at the time of the victim’s death and are attending a secondary or post-secondary school on a full-time basis at the end of the 3-year period.
The dependants contemplated in the first and second paragraphs shall remain dependants insofar and as long as they remain full-time students or until they turn 25, whichever occurs first.
O.C. 1263-83, s. 33.
34. If the dependant described in paragraph 2 of section 31 was, at the time of the victim’s death, already suffering from a disability which prevents him or her from providing for his or her own basic needs, subparagraphs b and d do not apply as long as he or she remains disabled.
O.C. 1263-83, s. 34.
DIVISION III
CRITERIA FOR ESTABLISHING A VICTIM’S AGE
35. The criteria for establishing the victim’s age, when this cannot be done in the usual manner, are, by order of priority:
(1)  the date of birth indicated on the birth certificate issued by a demography department;
(2)  the date of birth specified in the records of the hospital center where the victim was born;
(3)  the date of birth specified in the records of the physician who attended the mother at the time of the victim’s birth; or
(4)  the date of birth shown on a document from a government or, failing this, that shown on a family paper.
O.C. 1263-83, s. 35.
CHAPTER III
RULES RESPECTING THE REMITTANCE OF INDEMNITIES
36. If a claimant is not able to handle his or her own affairs or is deficient in other ways, the indemnities shall be sent to the person who has been authorized to accept them in accordance with the statutes governing the claimant’s condition and abilities.
O.C. 1263-83, s. 36.
37. An indemnity which is unpaid at the time of the claimant’s death is paid to his or her estate.
O.C. 1263-83, s. 37.
CHAPTER IV
EXAMINATION BY A PHYSICIAN DESIGNATED BY THE SOCIÉTÉ UNDER SECTION 61 OF THE ACT
O.C. 1263-83, Chap. IV.
38. The physician who examines the claimant under section 61 of the Act may require that no other persons be present at that time.
O.C. 1263-83, s. 38.
39. The physician shall develop and take into account the following points with respect to the claimant:
(1)  case history, including:
(a)  summary of pertinent antecedents;
(b)  physical and mental disorders and their progression;
(c)  intercurrent disorders and diseases;
(d)  record of medication prescribed;
(2)  occupational history, including:
(a)  previous occupations and reasons for change;
(b)  actual or presumed occupation and abilities required in relation to the present condition of the victim, determined during the regular physical examination;
(3)  regular physical examination, including both the victim’s and the physician’s points of view, with special attention paid to the injury caused by the accident.
O.C. 1263-83, s. 39.
40. On the basis of the details obtained from the claimant’s examination, the physician shall:
(1)  make a diagnosis;
(2)  determine the extent of the disability resulting from by the accident and the effects of the said disability in terms of the provisions of the Act under which the victim is entitled to income replacement compensation; and
(3)  indicate the claimant’s capability of returning to the occupation referred to in the provisions of the Act under which he or she is entitled to income replacement compensation, as well as the expected date of return to that occupation and the claimant’s capability of adjusting to other occupations.
The physician shall also indicate, where applicable, any special considerations which could affect the disability or the nature and the duration of the recommended treatment, as well as the type of prosthesis, orthosis or other therapeutic device recommended.
If the physician cannot definitely establish the disability of the claimant, he or she shall nevertheless make a provisory judgement.
O.C. 1263-83, s. 40.
41. Sections 39 and 40 do not apply when the Société requests that a victim be examined for the sole purpose of obtaining specific medical information.
O.C. 1263-83, s. 41.
42. When a physician examines a victim for the purpose of establishing the indemnity payable under section 44 of the Act, he shall indicate in a separate report all the information necessary for implementing regulations made under section 44 of the Act.
O.C. 1263-83, s. 42.
43. In the event of an accident which occurred outside Québec, the physician shall also make up a separate report specifying the extent of the claimant’s disability resulting from the accident in terms of a percentage and indicating whether the disability is partial or total, temporary or permanent.
If the physician is unable to determine the claimant’s percentage of disability, he or she shall nevertheless establish a provisory percentage, subject to revision.
O.C. 1263-83, s. 43.
CHAPTER V
RECOVERY OF INDEMNITIES
44. Where a person has received an indemnity benefit to which he or she has no right or the amount of which exceeds that to which he or she is entitled, the Société, without prejudice to all its legal recourses, may retain any sum due to that person in the following manner:
(1)  if the amount due is a reimbursement of expenses or a lump-sum settlement, the Société may subtract the amount of the debt from the said amount due and only send the person the difference, if applicable;
(2)  if the amount due is a pension benefit, the Société may:
(a)  suspend pension payments until the debt has been reimbursed in full; or
(b)  decrease payment amounts by a percentage determined in accordance with the circumstances, ensuring that the percentage is sufficient to enable the Société to recover the debt within 3 years;
and readjust the payments accordingly once the debt has been repaid in full.
O.C. 1263-83, s. 44.
CHAPTER VI
FINAL PROVISIONS
45. This Regulation replaces the Regulation respecting indemnities payable under Title II of the Automobile Insurance Act (R.R.Q., 1981, chapter A-25, r. 7).
O.C. 1263-83, s. 45.
46. (Omitted).
O.C. 1263-83, s. 46.
REFERENCES
O.C. 1263-83, 1983 G.O. 2, 2265
O.C. 504-84, 1984 G.O. 2, 1193
S.Q. 1990, c. 19, s. 11