Constitutional Challenge to Nova Scotia Minor Injury Caps Dismissed

While this blog is largely restricted to BC Personal Injury and ICBC Claims as a Personal Injury lawyer I like to keep an eye across other Canadian jurisdictions for interesting developments with respect to personal injury law.
For all of the flaws, both real and perceived, of our system with ICBC as a monopoly auto insurer, the BC tort system is one of the best in Canada.   It is fortunate that victims of injuries caused through the negligence of others have the right to seek fair compensation through the courts in BC.
BC has some of the fewest legisltative impediments on victims rights when it comes to advancing negligence claims.  Other Provinces are not so lucky.  Many Provinces in Canada have implemented a ‘no-fault’ system where victims rights to claim money for pain and suffering are taken away to provide certain benefits to all whether they are responsible for their own injuries or otherwise (akin to our WCB system).  Other Provinces have enacted statutory ‘caps’ on damages for certain types of injuries.  Nova Scotia is one such Province where a $2,500 cap on ‘minor injury’ damages was imposed by statute.
Reasons for judgment were released by the Supreme Court of Nova Scotia today dismissing challenges to the constitutionality of a law which created statutory caps on non-pecuniary (pain and suffering) awards for minor injuries.
Specifically the relevant part s. 113B of the Nova Scotia Insurance Act provides that
Limitation on liability

113B (1) In this Section,

(a) “minor injury” means a personal injury that

    (i) does not result in a permanent serious disfigurement,             

    (ii) does not result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature, and

    (iii) resolves within twelve months following the accident;

     

(b) “serious impairment” means an impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment.
And the relevant section of the Automobile Insurance Tort Recover Regulations provide that:
2     (1)    For the purposes of Section 113B of the Insurance Act and these regulations,
   (d)    “personal injury” does not include
                         (i)     a coma resulting in a continuing serious impairment of an important bodily function,
                         (ii)    chronic pain that
                                  (A)   is diagnosed and established as chronic pain by a medical specialist appropriately trained in the diagnosis and management of pain disorders,
                                  (B)   is a direct result of a physical injury sustained in the motor vehicle accident with respect to which the claim is brought, 
                                  (C)   results in a continuous serious-impairment of an important bodily function, and
                                  (D)   is moderately severe or severe pain, as classified in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition,
                         (iii)   a burn resulting in serious disfigurement,
                         (iv)   an amputation of a major limb;
(f)    “resolves” means
                         (i)     does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment, or
                         (ii)    causes a serious impairment which results from a continuing injury of a physical nature to produce substantial interference with a person’s ability to perform their usual daily activities or their regular employment where the person has not sought and complied with all reasonable treatment recommendations of a medical practitioner trained and experienced in the assessment and treatment of the personal injury;
 (g)    “substantial interference” means, with respect to a person’s ability to perform their regular employment, that the person is unable to perform, after reasonable accommodation by the person or the person’s employer for the personal injury and reasonable efforts by the injured person to adjust to the accommodation, the essential elements of the activities required by the person’s pre-accident employment;
          (h)    “usual daily activities” means the essential elements of the activities that are necessary for the person’s provision of their own care and are important to people who are similarly situated considering, among other things, the injured person’s age.
The Plaintiff’s challenged that Nova Scotia’s Caps on Non-Pecuniary damages violate s. 15 and s. 7 of the Canadian Charter of Rights and Freedoms.  These sections guarantee life, liberty and security of the person and provide equality rights not to be discriminated against as a reslt of race, national or ethinic origin, colour, religion, sex, age or mental or physical disabililty.  The Plaintiff’s argued that s. 113B infringed s. 15 of the Charter based on physical disability and sex.
In very lengthy reasons for judgement (Part 1 of the reasons are all that have been released to date and these are 92 pages long) the Court dismissed the challenges.   I would reproduce the key reasons in this blog however the judgemenet was released in PDF form so I can’t cut and paste the key paragraphs.
This judgement and the underlying legislation are worht reveiwing for any students of the law keen on the topic of ‘tort reform’.

"Your's truly, ICBC Team 1, 2, 3…"

As an ICBC claims lawyer I noticed a change in ICBC’s practices lately.
One of the first things I do for my ICBC claims clients is obtain the records ICBC keeps regarding the claim. It used to be that the correspondence from ICBC to the client was signed by a human being. Now I see the letters clients receive are often signed by ‘teams’ such as ICBC Team 1, ICBC Team 2, ICBC team 3, ICBC Team 4, ICBC Team 5. What’s this all about?
It seems to me that this ‘team’ approach is a way to make the ICBC claims process less personal. When ICBC sends out letters to those injured in BC car accidents telling them that their claim is denied due to the LVI program or some other such other form letter it is much less inviting to follow up if you are responding to some faceless ‘team.’
If a personal ICBC adjuster sends a letter and you have questions it’s easy to follow up. You can call the person, make an appointment, establish a relationship and try to work together to resolve the claim. Not that this always works but it is at least a more dignified process.
When ICBC sends a letter signed by some faceless ‘team’ of people follow-up becomes less attractive. You may get passed around from person to person. It’s more difficult to strike up a personal connection with a ‘team’ and this may make some people willing to simply accept ICBC’s position and walk away from the claim. The ‘team’ approach probably makes it easier for ICBC adjusters to stick to ICBC’s policies such as the ‘LVI program‘ or ICBC’s ‘soft tissue injury assessment guidelines‘. If the ICBC ‘team’ tells you your claim is denied I would think it is easier for an ICBC adjuster to stick to this position if he / she remains faceless.
The less human the process the greater the desire to walk away from an ICBC claim.
If you have received a letter from an ICBC ‘team’ and disagree with ICBC’s position, be it the value of your claim, the determination of fault or an LVI claim denial don’t be discouraged. Follow up no differently than if you had the name of a personal claims adjuster to deal with. Make sure you are looked after properly in your ICBC claim.

Alberta Soft Tissue Injury Cap Declared Unconstitutional

On February 8, 2008, Associate Chief Justice Neil Wittmann concluded that the Alberta Minor Injury Regulation (a regulation which imposed a $4,000 cap on auto-accident victims who sustained soft tissue injuries) is unconstitutional.
Justice Wittmann concluded that the cap on damages for soft tissue injuries”sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums.”
In striking down the legislation Justice Wittmann held that the Minor Injury Regulation is discriminatory against victims who sustained soft tissue injuries and that this violated Section 15 of the Canadian Charter of Rights and Freedoms.
This is a great decision as it restores the rights of victims of Alberta auto accidents who sustained soft tissue injuries to seek fair compensation for their losses from the courts. The decison has been hailed a success by the Alberta Civil Trial Lawyers Association who have urged the government to accept the decision.
The government, however, has announced that they will indeed appeal the decision. Justice Wittmann’s reasoning appears sound and hopefully will withstand appeal. However, nothing in the judgement prevents Alberta’s legislature from introducting new legislation which would limit the compensation available for pain and suffering for auto accident victims.
Only time will tell whether Alberta’s legislature will institute revised legislation capping damages for ‘minor injuries’ in a way that is not inconsistent with Justice Wittman’s interpretation of Section 15 of the Charter or if the government will allow Alberta auto accident victims with soft tissue injuries to have unfettered access to the courts for fair compensation. In the meantime, however, many plaintiff’s may now have access to the courts to receive fair compensation for their soft tissue injuries.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
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