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
(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’.