December 18, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Nova Scotia Appeal Court upholds province's $2,500 cap on minor auto injuries
The Nova Scotia Court of Appeal has upheld the province's Cdn$2,500 cap on minor injuries, finding on Dec. 15 that the cap is not discriminatory.
In Hartling v. Nova Scotia (Attorney General), the Court of Appeal determined that “while the cap represents a new disadvantage, there is no evidence of an historic disadvantage and very sparse evidence of past stereotyping.”
It ruled the province's cap reform is attentive to victims’ needs and circumstances. In his written decision, Nova Scotia Court of Appeal Justice Simon MacDonald noted the appellants will continue to be compensated for direct financial losses.
MacDonald said that although the cap "disadvantaged" minor injury claimants — in the sense that they could only collect Cdn$2,500 for injuries for which they could previously collect more — the presence of disadvantage did not necessarily mean there was discrimination under the Charter.
"It is not enough for the appellants to simply establish that their distinct group is disadvantaged; an invitation that the appellants came very close to extending," MacDonald wrote. "Instead, to succeed they must go a step further and establish that their disadvantage reflects discrimination."
To do this, the appellants had to show there were "pre-existing experiences that could buttress a case for discrimination," he wrote. "They are disadvantage, vulnerability, stereotyping or prejudice."
None of these pre-existing experiences applied to minor injury victims, the court found.
MacDonald also found the purpose of the legislation, which was to control auto insurance costs, accommodated the needs, capacities and circumstances of minor injury victims.
Although the minor injury victims' non-monetary damages were capped at $2,500, they nevertheless had recourse to a variety of monetary awards, the Appeal Court noted. These included "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."
In addition, MacDonald noted, "the appellants, like all Canadians, continue to have their medical needs met through our system of universal health care."
As important as the decision is to the insurance industry, it may already be moot. Several news reports have stated the NDP government intends to move quickly to abolish the cap in favour of a deductible, which the NDP promised during its election campaign.