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Posted On: May 27, 2010

Supreme Court of Canda Refuses to Hear Appeal on N.S. Minor Injury Cap

Injured Victim's Constitutional Appeal Fails

Today the Supreme Court of Canada refused to hear an appeal of a decision that upheld the constitutionality of Nova Scotia's cap of $2500.00 compensation for injured car accident victims deemed to have suffered a "minor injury".

The Applicant MacDonald was involved in a car accident in November, 2003. She suffered soft tissue injuries to her neck, shoulders and back. Her insurance company claimed that she had suffered a "minor injury" under Nova Scotia's new auto insurance provisions and offered a settlement that included the capped amount of $2,500 for pain and suffering.

The other Applicant Gionet was in a car accident in December, 2003. She suffered soft tissue injuries to her knee and back. She accepted the insurance company's offer of $3,000 to settle her claim for pain and suffering and for loss of wages.

Victims Claimed "Minor Injury" CAP Discriminatory

The plaintiffs applied to challenge the constitutionality of amendments to the N.S. Insurance Act that "capped" damages for "minor" injuries, as defined in the legislation, at $2,500.00. The plaintiff's claimed the law discriminated on the basis of physical disability and sex. They also contended the Regulations promulgated under the Act were ultra vires.

Supreme Court Upheld "Minor Injury" Cap

Justice Walter Goodfellow of the Nova Scotia Supreme Court upheld the legislation.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Court of Appeal Confirmed Trial Decision

The Nova Scotia Court of Appeal dismissed the plaintiff's appeals. They appealed to the Supreme Court of Canada.

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Supreme Court of Canada

In a decision released today the S.C.C. ruled:

"The motions for an extension of time to serve and file the first and second applications for leave to appeal are granted. The first application for leave to appeal...is dismissed without costs. The second application for leave to appeal...is dismissed with costs to the respondents Adam Thomas Roy and Attorney General of Nova Scotia."

That's All Folks

The S.C.C. decision marks the end of the line. If you or a family memeber have been injured in a car accident since November 2003 your claim will be determined based on the amendments to the Insurance Act that caps compensation for "pain and suffering" for "minor" injuries at $2500.00.

Recent Changes to Cap

The NDP government introcuced changes to the "minor injury" cap recently. Unfortunately, they did not scrap the cap as many injured victims had hoped. The cap remains in place. There were some improvements made to the cap. But they will not apply retroactively.

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Get Advice!

Now more than ever it is important for injured accident victims to get advice from an experienced Nova Scotia Car Accident Lawyer.

Which version of the legislation applies to your claim? Is your claim is capped? What evidence do you need to prove that your claim isn't capped? What compensation you are entitled to in addition to the cap? These are all questions that are best answered by an experienced motor vehicle accident lawyer.

Continue reading " Supreme Court of Canda Refuses to Hear Appeal on N.S. Minor Injury Cap " »

Posted by John McKiggan | | Email This Post

Posted In: Car Accidents , Insurance Claims , Minor Injury Cap

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Posted On: May 12, 2010

Brain Injury Survivors Face Long Waits for Services

Survivors of traumatic brain injuries face long waits for treatment and rehabilitation services.

No Service the Norm

The president of the Brain Injury Association of Canada, Shirley Johnson, says that for persons who have suffered brain injuries shortages of programs, long waiting lists or simply no access to services at all, is the norm in most areas of the country.

Help Us Change That

June is Brain Injury Awareness Month in Nova Scotia. The Brain Injury Association of Nova Scotia is hosting 18 Holes for Hope on Monday June 21, 2010 at the Brightwood Golf and Country Club.

This is one of BIANS major fundraisers. There are still a few spaces available for anyone who wants to come out and support brain injury awareness. You can contact me through this blog if you want more information.

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Personal Injury

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Posted On: May 8, 2010

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Nova Scotia has a cap on the amount of compensation that innocent victims are entitled to receive when they have been injured in a car accident.

I have posted before about the unfairness of Nova Scotia’s minor injury cap. For example, see Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Promise to Scrap the Cap

The NDP campaigned on a promise to do away with the $2,500.00 minor injury cap. Most people believed that the NDP intended to scrap the cap altogether since that was the fairest thing to do.

NDP Increases Cap to $7,500.00

However, on April 28, 2010, the NDP Government introduced changes to Nova Scotia’s minor injury cap. Unfortunately, the cap remains in place. The amount of the cap has been increased to $7,500.00 and some minor improvements have been made to the legislation which will allow more accident victims to recover more compensation.

The legislation was passed on May 7, 2010 but the "new" cap will not take effect until it is proclaimed in force.

"Does the Cap Apply to My Claim?"

I get asked that question a lot. Unfortunately there is no single answer. If you have been injured in a car accident you should get the advice of an experienced Nova Scotia Car Accident lawyer.

$2,500.00 Cap Still Applies to "Old" Claims

One of the key issues that the NDP Government had to struggle with was whether any improvements to the minor injury cap would be made “retroactive”. In other words, would the benefits be extended to anyone who has been injured since the minor injury legislation came into affect in November 2003, or would they only apply on a “go forward” basis? Unfortunately, the NDP Government has decided not to make the improvements retroactive.

Anyone who has been injured in a car accident since November 2003 is stuck with the draconian and unfair $2,500.00 minor injury cap.

Amount of Compensation under "New" Minor Injury Cap

As I mentioned, while the minor injury cap remains in place the amount of compensation that injured victims are entitled to recover has increased from $2,500.00 to $7,500.00. While this is an improvement, innocent accident victims who may end up suffering significant injuries that cause pain for the rest of their life will be limited to the maximum recovery of $7,500.00.

In my view this simply isn’t reasonable.

Sprains, Strains and Whiplash

The definition for the old $2,500.00 cap eliminated the vast majority of injury claims, including people who suffered fractures, some forms of disfiguring injuries, and long term chronic pain.

The new definition will focus on limiting compensation to persons who have suffered sprains strains and certain kinds of whiplash. This is certainly more in line with what the insurance industry asked for when they were lobbying for the original minor injury cap.

Details Matter

However, as always, the “devil is in the details” and how the regulations define what is covered by the cap and what is not covered by the cap will ultimately have a huge impact on the fairness (or unfairness) of this new legislation.

So what does it all mean?

There is no question that a cap of $7,500.00 is better than a cap of $2,500.00.

There is no question that limiting the types of injuries that the minor injury cap applies to is an improvement.

Bad Law Bad Policy

However, I believe that placing a cap on the amount of compensation that innocent injured car accident victims are entitled to receive in order to increase insurance company profits is bad law and bad public policy.

Making minor improvements to a bad law does not make the law fair nor does it make it good public policy. I represent hundreds of injured accident victims who have been waiting to resolve their claims in hope that the NDP Government would do the right thing and scrap the minor injury cap altogether. They now face the prospects of having to deal with their claims under the egregiously unfair provisions of the $2,500.00 minor injury cap.

Continue reading " Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements " »

Posted by John McKiggan | | Email This Post

Posted In: Car Accidents , Insurance Claims , Minor Injury Cap , Personal Injury

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