A-25, r. 7 - Regulation respecting the determination of income and employment and the payment of the indemnity in section 83.30 of the Act

Updated to 1 September 2012

This document has official status.

chapter A-25, r. 7

Regulation respecting the determination of income and employment and the payment of the indemnity in section 83.30 of the Act

Automobile Insurance Act

(chapter A-25, s. 195, pars. 6 to 11, 29 and 30).

DIVISION I RULES FOR DETERMINING GROSS INCOME

§ 1 . — Gross employment income

1. The gross income that a salaried employee earns from employment is determined by taking into account, on an annual basis, the following:

(1)  the total salaries, wages, hires, and commissions which he receives or is entitled to receive on a regular basis;

(2)  the total of the following benefits which he receives or is entitled to receive on a regular basis, where he does not receive them as a result of the accident:

(a)  bonuses;

(b)  premiums;

(c)  tips;

(d)  increased pay for overtime, under the terms of employment;

(e)  profit-sharing;

(f)  the cash value of the personal use of a motor vehicle or dwelling provided by the employer;

(g)  the difference between the sum paid by the employer under an employment contract for equipment, tools or machinery supplied by the salaried employee and the expenses actually incurred by such employee for the use of those materials;

(h)  any other benefit or advantage of a nature similar to those covered by subparagraphs a to g.

O.C. 1923-89, s. 1.

2. The gross income that a self-employed worker earns from employment is determined by taking the highest of the following amounts:

(1)  the business income realized over the 12 months preceding the date of the accident;

(2)  the business income realized during the last complete fiscal year preceding the date of the accident;

(3)  the average of business income received during the last 3 complete fiscal years preceding the date of the accident, or, if he has been operating the business for less than 3 years, during the last 2 years preceding the date of the accident.

Business income is composed of the total income, fees and commissions that a self-employed worker customarily receives, minus expenses but excluding the portion of depreciation costs of business-related equipment.

The income, fees, commissions and expenses referred to in the second paragraph are those allowable under the taxation legislation applicable to the self-employed.

O.C. 1923-89, s. 2.

§ 2 . — Gross income for the victims referred to in section 17 of the Act

3. The gross income of the victims referred to in section 17 of the Automobile Insurance Act (chapter A-25) is determined according to sections 5 and 6, with the necessary modifications and without taking into account the readjustment provided therefor. However, notwithstanding section 6, the gross income indicated in Schedule III is that in force on the day of the accident.

O.C. 1923-89, s. 3; O.C. 200-98, s. 1.

§ 3 . — Gross income for the victims referred to in section 21 of the Act

4. The gross income of a victim who, at the time of the accident, holds temporary or part-time employment which corresponds to employment that the Société de l’assurance automobile du Québec has determined for him, is calculated by taking the gross income earned by the victim from such employment, computed according to section 1 or 2, as the case may be, projected on an annual basis and readjusted using the total of the adjustment factors provided for in Schedule I.

However, if, over the last 5 years preceding the date of the accident, the victim has already earned from employment determined by the Société a gross income higher than that earned at the time of the accident, his gross income is determined according to section 5, with the necessary modifications.

O.C. 1923-89, s. 4.

5. The gross income of a victim who, at the time of the accident, does not hold employment corresponding to employment determined for him by the Société but who, in the 5 years preceding the date of the accident, has held such employment, is calculated by taking the highest gross income earned by the victim from such employment, computed according to section 1 or 2, as the case may be, indexed according to the method indicated in Schedule II and readjusted using the total of the adjustment factors provided for in Schedule I.

O.C. 1923-89, s. 5.

6. The gross income of a victim who, at the time of the accident, does not hold employment corresponding to employment determined for him by the Société and who, in the 5 years preceding the day of the accident, never held such employment is that indicated in Schedule III in force on the day when the Société determines employment and readjusted using the total of the adjustment factors provided for in Schedule I.

O.C. 1923-89, s. 6; O.C. 200-98, s. 2.

§ 4 . — Table of employment categories and corresponding gross incomes

7. For the purposes of sections 15, 20 and 31 of the Act, the employment categories and corresponding gross incomes are those prescribed in Schedule III. Gross income is that in force on the day of the accident.

For the purposes of sections 45 and 48 of the Act, the employment categories and corresponding gross incomes are those prescribed in Schedule III. Gross income is that in force on the day when the Société determines employment.

O.C. 1923-89, s. 7; O.C. 200-98, s. 3.

§ 5 . — Capability for part-time employment

8. In cases where it must be taken into account that the victim could hold only part-time employment, the gross income applied to that victim according to sections 4 to 7 must be reduced to the amount obtained by using the formula which appears in Schedule IV.

O.C. 1923-89, s. 8.

DIVISION II RULES FOR COMPUTING NET INCOME

9. The net income is computed by subtracting from the gross income calculated in accordance with Division I, the amount, the premium and the contributions referred to in section 52 of the Act and computed in accordance with sections 10 to 12.

Where this calculation involves a rate that is expressed to more than 2 decimal points, only the first 2 are retained and the second decimal is rounded off to the next highest unit where the third decimal is greater than 4.

O.C. 1923-89, s. 9; O.C. 1247-2005, s. 1.

10. To compute the amount equivalent to the income taxes according to the tables established under the Taxation Act (chapter I-3) and the Income Tax Act (R.S.C. 1985, c. 1 (5th Suppl.)), taxable income is the gross income computed in accordance with Division I, minus:

(1)  the yearly premium payable:

(a)  under the Employment Insurance Act (S.C. 1996, c. 23) and determined in accordance with section 11;

(b)  under the Act respecting parental insurance (chapter A-29.011) and determined in accordance with section 11.1;

(2)  the yearly contributions applicable under the Act respecting the Québec Pension Plan (chapter R-9) and determined in accordance with section 12;

(3)  the annual amount of support actually being paid at the time of the accident, the deduction of which is permitted under the Taxation Act and the Income Tax Act, subject to the following maxima:

(a)  when the victim’s total income does not exceed the Maximum Yearly Insurance Earnings provided for by the Act, the total pension amount must be deducted; or

(b)  when the victim’s total income exceeds the Maximum Yearly Insurance Earnings provided for by the Act, only the amount obtained by multiplying the amount of the pension by the fraction of the Maximum Yearly Insurance Earnings provided for by the Act over the victim’s total income must be deducted;

(4)  the basic personal exemption;

(5)  the married person’s exemption in cases where the victim has a spouse, without taking into account the latter’s income;

(6)  the exemption equivalent to the married person’s exemption where applicable under the Taxation Act or the Income Tax Act, if the married person’s exemption has not already been deducted, without taking into account the dependant’s income and, in cases where more than one person may be considered for such exemption, by choosing the person for which the dependant’s exemption is the lowest; and

(7)  the dependant’s exemption, where applicable under the Taxation Act and the Income Tax Act, without taking into account the dependant’s income, and excluding persons for whom a married person’s exemption, an exemption equivalent to the married person’s exemption or support has already been deducted.

The premium and the contributions established in paragraphs 1 and 2 are not used in computing where they are included in the basic personal exemption provided for in paragraph 4.

The exemption amounts are those prescribed in the Taxation Act and the Income Tax Act. However, they must be computed by taking into account the definition of “spouse” and “dependant” under section 2 of the Act.

The amount equivalent to the income tax is equal to the amounts of income tax payable in accordance with the income tax tables and taking into account the taxable income determined in the first paragraph and the federal income tax abatement that applies to Québec.

Where the Taxation Act and the Income Tax Act replace the exemptions provided for in their respective provisions on income tax credits, those credits apply for purposes of calculating the net income.

Exemptions which generate income tax credits must not be taken into consideration when computing the taxable income.

O.C. 1923-89, s. 10; O.C. 1247-2005, s. 2; O.C. 13-2009, s. 1.

11. In order to compute the employee’s yearly premium payable under the Employment Insurance Act (S.C. 1996, c. 23), a victim is deemed to hold insurable employment within the meaning of the Employment Insurance Act without taking into consideration the exceptions prescribed in the said Act.

O.C. 1923-89, s. 11; O.C. 1247-2005, s. 3.

11.1. In order to compute the yearly premium payable under the Act respecting parental insurance (chapter A-29.011), a victim is deemed to hold employment covered by that Act, at the employer’s establishment, without taking into consideration the exceptions prescribed in the said Act.

O.C. 1247-2005, s. 4.

12. In order to compute the yearly contribution applicable under the Act respecting the Québec Pension Plan (chapter R-9), a victim is deemed to hold, at the employer’s establishment, a pensionable employment pursuant to the Québec Pension Plan, without taking into consideration the exceptions prescribed in the said Act.

O.C. 1923-89, s. 12.

DIVISION III PAYMENT OF THE INDEMNITY CONTEMPLATED IN SECTION 83.30 OF THE ACT

13. The reduction of the income replacement indemnity contemplated in section 83.30 of the Act is adjusted during the committal or imprisonment of the victim in the following cases and on the following conditions:

(1)  a person comes into a situation which, if it had occurred on the date of the accident, would have made him a dependant within the meaning of section 2 of the Act;

(2)  a dependant of the victim ceases to be in the situation which made him a dependant within the meaning of section 2 of the Act;

(3)  a person ceases to be in a situation which, if it had occurred on the date of the accident, would have made him a dependant within the meaning of section 2 of the Act;

(4)  a dependant of the victim dies.

The income replacement indemnity to which a victim is entitled is paid in equal parts to the dependants contemplated in the fourth paragraph of section 83.30 of the Act.

O.C. 1923-89, s. 13.

14. (Omitted).

O.C. 1923-89, s. 14.

SCHEDULE I

(ss. 4 to 6)

INCOME ADJUSTMENT

(1) For the purposes of this Schedule, the reference period is the 5 years preceding the date of the accident.

(2) The adjustment prescribed in sections 4 to 6 is computed according to the following table:

Evaluation of the holding of                      Adjustment factors applicable    
applicable employment annually                    annually during the reference
during the reference period                       period, in percentage 
(rounded annually to the 
nearest tenth)                             
 
   0%                           (total absence)                              10

  10%                                                                        09

  20%                                                                        08

  30%                                                                        07

  40%                                                                        06

  50%                                                                        05

  60%                                                                        04

  70%                                                                        03

  80%                                                                        02

  90%                                                                        01

 100%                        (full-time employment)                          00
    

However, the victim must not be penalized in the adjustment of income for the time, within the reference period, during which the victim was not capable of holding employment.

The evaluation of the holding of employment does not take into account the fact that the employment is or is not the one determined by the Société.

When calculating a victim’s percentage of presence at work, the months when a period of employment begins and ends must be considered as being complete months for presence at work.

(3) For the purposes of sections 4 and 5, the adjustment factor is applied as follows:

GIPI - (GIPI x total of adjustment factors) = GID

GIPI being the victim’s gross income projected on an annual basis and indexed, where applicable, in accordance with Schedule II;

GID being the gross income as determined.

(4) For the purposes of section 6, the adjustment factor is applied as follows:

GIS3 - (GIS3 x total of adjustment factors) = GID

GIS3 being the gross income taken from Schedule 3;

GID being the gross income as determined.

(5) For the purposes of sections 4 to 6, no adjustment factor is applied when the victim, at the time of the accident, had been unemployed for less than a year or had been at temporary or a part-time employment for less than a year, and:

(1) held regular full-time employment for the rest of the reference period; or

(2) became capable of working only in the last year of the reference period.

(6) However, notwithstanding the result of the application of the adjustment factor according to the method indicated in this Schedule, the presumed gross income must never be less than the annual gross income determined on the basis of minimum wage referred to in section 3 of the Regulation respecting labour standards (chapter N-1.1, r. 3) and, unless it is part-time employment, the normal work week prescribed in section 52 of the Act respecting labour standards (chapter N-1.1), as they read the day when they are to be applied.

O.C. 1923-89, Sch. I.

SCHEDULE II

(s. 5)

The indexation provided for in section 5 is computed as follows:

GIPI x indexing factor = PBI

GIPI being the real gross income earned by the victim in his highest paying employment, corresponding to the one which the Société determined for him, and projected on an annual basis;

PBI being the basic presumed income to be readjusted using the adjustment factors prescribed in Schedule 1.

The indexing factor is computed as follows:

AWE for the year of the accident

_________________________________= indexing factor

AWE for the terminating year of the determined employment

AWE being the yearly average computed on the basis of the average weekly earnings for workers in all economic activities in Québec as established by Statistics Canada for each of the 12 months preceding 1 July of the previous year, that is, either the year of the accident or the terminating year of the determined employment, as the case may be.

O.C. 1923-89, Sch. II.

SCHEDULE III

(ss. 3, 6 and 7)

EMPLOYMENT CATEGORIES AND CORRESPONDING GROSS INCOMES

1. The employment categories are the occupational titles contained in the “Professions” file of the computerized data listing on educational and occupational training “Répertoire informatisé des données en information scolaire et professionnelle” (Repères) by the Société de gestion du réseau informatique des commissions scolaires (Société GRICS).

2. Gross income corresponding to each employment category is the amount that represents the median on the scale of the annual average minimum earnings indicated in the listing for each occupation. Where the lower limit on the scale is absent or equal to zero, gross income is the amount that represents the upper limit of the average minimum earnings.

Where the average minimum earnings shown is the hourly wage, it shall be calculated on an annual basis by multiplying it by 2000.

3. Changes made to the listing during a year become an integral part of this Regulation from the next 1 January.

4. Notwithstanding section 2, the gross income of a victim for whom the Société determines employment under section 48 of the Act cannot be lower than gross income determined on the basis of the minimum wage as defined in section 3 of the Regulation respecting labour standards (chapter N-1.1, r. 3), projected on an annual basis by multiplying it by 2000.

Where employment determined under this section is part-time employment, gross income is established on the basis of the minimum wage prescribed in the preceding paragraph and projected on an annual basis by multiplying it by the number of hours for which the victim is considered fit to hold employment.

5. Notwithstanding section 2, gross income cannot be higher than the Maximum Yearly Insurable Earnings set by section 54 of the Automobile Insurance Act (chapter A-25).

O.C. 1923-89, Sch. III; O.C. 200-98, s. 4.

SCHEDULE IV

(s. 8)

The amount used to reduce the gross income covered by section 8 is computed as follows:

28 - n

GI x ______

28

GI is the gross income calculated according to sections 4 to 7; and

n is the number of hours the victim can work on a weekly basis.

O.C. 1923-89, Sch. IV.

REFERENCES

O.C. 1923-89, 1989 G.O. 2, 4652

S.Q. 1990, c. 19, s. 11

O.C. 200-98, 1998 G.O. 2, 1209

O.C. 1247-2005, 2005 G.O. 2, 5531

O.C. 13-2009, 2009 G.O. 2, 51