Supreme Court Rejects Appeal by Alberta Trial Lawyers

December 18, 2009, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

On June 12, 2009 the Alberta Court of Appeal overturned the Court of Queen's Bench decision striking down the Alberta Minor Injury Cap. The Court of Appeal decision held that the Minor Injury Regulation does not violate the Canadian Charter of Rights and Freedoms. As a result, the $4,000 cap limiting non-pecuniary general damages for injuries defined as minor pursuant to the legislation was reinstated. Lawyers for the injured Plaintiffs filed leave to appeal with the Supreme Court of Canada to have the matter heard by Canada's highest court. That leave has been denied today.

In the Court of Queen's Bench decision, rendered on February 8, 2008, Associate Chief Justice Wittman (now Chief Justice Wittman) found the cap violated the injured Plaintiff's right to equality under Section 15 of the Charter. He held that limiting non-pecuniary damages for minor soft tissue injuries reinforces the stereotype that these individuals are generally malingers, thereby creating a prejudice. He held that protecting individuals from this prejudice far outweighed the objective of the legislation which was to lower insurance premiums. The Minor Injury Regulation was struck for being unconstitutional.

In a unanimous decision, the Alberta Court of Appeal reversed the decision of Chief Justice Wittman, holding that the Minor Injury Regulation did not infringe on the Section 7 rights regarding security of the person, nor did it infringe upon the Section 15 equality rights under the Charter. The Court of Appeal did not accept the argument that the Minor Injury Regulation reinforced a negative stereotype. In fact, they felt that the Minor Injury Regulation together with the Diagnostic Protocol, which came into force together, ensured immediate access to care without any interference from any insurer. The Court of Appeal held that the cap on non-pecuniary damages was a justifiable concession.

The injured Plaintiffs filed an application to seek leave to appeal the decision of the Alberta Court of Appeal. The Supreme Court of Canada has denied that application. Few cases are granted leave to appeal to the Supreme Court of Canada. A judgment on a leave application is final.

What this means is that anyone who suffers a "minor injury" as defined by the Minor Injury Regulation will have their general damages capped at $4,000.00. The legislated cap is adjusted to account for inflation on an annual basis. Currently the adjusted cap amount for general damages is $4,504.00 for all claims arising after January 1, 2009. Other heads of damages (wage loss, out of pocket expenses, etc) remain unaffected.

Posted under Personal Injury, Car Accidents, Minor Injury Guidelines

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.

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