MINOR INJURY CAP UPHELD BY NOVA SCOTIA COURT OF APPEAL - INJURED PERSONS

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Court Upholds Nova Scotia’s Minor Injury Cap
Terri Goveia | December 15, 2009

Nova Scotia’s Court of Appeal has dismissed yet another challenge to the province’s $2,500 minor injury cap—upholding the cap at the same time a government cap review assesses its fairness.

In the Hartling v. Nova Scotia decision—released December 15—a Supreme Court panel set aside appeals to an earlier Supreme Court of Nova Scotia decision that deemed the cap constitutional. Chief Justice Michael Macdonald, Justice Jill Hamilton and Justice Duncan Beveridge dismissed the first appeal, which claimed the cap goes against the Charter of Rights and Freedoms, concluding “the enactment and its regulations are valid.” They denied leave to appeal on the second front—that the government extended the cap’s reach beyond legislative intention—“because there is no longer an arguable issue to be resolved.”

In making their decision, the panel underscored the cap legislation’s original intent—to reduce skyrocketing insurance premiums, not to protect accident victims, as the appellants claimed.

Similar cases
The panel’s analysis of the case—which involved appeals from accident victims and a girl who witnessed her father being hit by a car—acknowledged similar constitutional challenges in other provinces, and referred to the recent Alberta Court of Appeal decision.

And though the panel acknowledged validity to some of the appellant’s assertions—such as their claim that accident victims suffering from chronic pain, are treated differently than those with other injuries—they note that “it is not enough for the appellants to simply establish that their distinct group is disadvantaged,” they state in the decision. “Instead, to succeed they must go a step further and establish that their disadvantage reflects discrimination.”

They also determined that “there is no basis to suggest that those who do not meet the chronic pain definition will be automatically caught by the cap. Without this premise this aspect of the claim evaporates.”

The panel’s decision points out that the cap legislation still allows accident victims to find sufficient care and compensation, pointing out that “all other rights of recovery remain intact. These represent a variety of monetary awards, including claims for wage loss and other out-of-pocket expenses; the costs of future care; or, where a wrongdoer’s actions are particularly egregious, “aggravated” or “punitive “damages, together with a commensurate contribution towards the victim’s legal bill.”

Decision coincides with review
The Insurance Bureau of Canada welcomed the decision, which coincides with an ongoing provincial review of the cap. “It provides Nova Scotia consumers with a little more stability,” says Bill Adams, the IBC’s vice president, Atlantic. “It highlights the fact that the review needs to balance affordability with fairness.”

The province is looking at options to amend the cap, which it some accident victims are caught under unfairly. The Ministry of Finance is slated to release a discussion paper on the cap before Christmas, with an eye to draft legislation—if necessary—by spring 2010.

Throughout the review, the government “needs to be clear in what [they’re] trying to address, and [avoid] a flood of cap claims at higher levels,” Adams told CI December 15. “We believe the current system is working. We acknowledge that the government has expressed a long-standing concern and will collaborate with them to understand its concerns.”

Part of that collaboration: shared insurance claims data to inform any future decision on the cap, he says. “The challenge is for government to make the changes it wants to see regarding victims yet not create the instability that could see higher claims costs.”

The Ministry did not respond to CI’s queries for comment.


SOURCE: http://www.cdnins.com/news/news_151209_01.htm