Justice Walter Goodfellow has released the second part of his decision in Hartling v. Nova Scotia (Attorney General).
"Minor Injury" Cap Isn't Unconstitutional
As I explained in a previous post last month: “Minor Injury” Compensation Cap Constitutional, Justice Goodfellow determined that Nova Scotia’s legislation that places a cap of $2,500.00 on the compensation that innocent accident victims can receive for their pain and suffering does not violate the Canadian Charter of Rights and Freedoms.
Accident Victims Not Sterotyped or Discriminated Against
In his decision of January 12, 2009, Justice Goodfellow ruled that victims of minor physical injuries were not subject to stereotyping or discrimination. Therefore, the legislation did not violate Section 15 of the Charter, which prohibits discrimination on the basis of a physical characteristic.
Similarly, Justice Goodfellow found that the legislation did not discriminate on the basis of gender or mental disability.
Accident Victims Disappointed - Insurance Companies Happy
Justice Goodfellow’s decision disappointed advocates for accident victims who felt that the legislation was simply a transparent attempt to increase insurance company profits at the expense of innocent accident victims.
The Insurance Bureau of Canada was no doubt very happy about the decision.
However, Justice Goodfellow’s decision of February 9, 2009, is guaranteed to create some consternation amongst the insurance industry.
Is Discrimination Justified?
In his latest decision, Justice Goodfellow provided his views on whether the legislation would survive a Section 1 analysis under the Charter. If the Minor Injury legislation is discriminatory, Section 1 of the Charter can still save the legislation if the discriminatory limits are “justified in a free and democratic society”.
Justice Goodfellow began the second part of his decision by stating that he is certain that he is correct when he ruled that the Minor Injury legislation is not discriminatory. However, given the effort that was put into the hearing by all of the parties involved Goodfellow J. felt that it was appropriate to conduct the Section 1 analysis in case the Court of Appeal differs with his views as to whether the legislation is discriminatory.
Justice Goodfellow conducted an exhaustive review of the evidence submitted during the hearing with respect to the reasons why the legislation was created.
Insurance Industry Pleads Poverty While Profits Increase
Goodfellow J. paid considerable attention to the financial evidence that was presented at the hearing. At the time the Minor Injury cap was introduced, the insurance industry claimed that it was losing money on auto insurance, and needed the cap on personal injury claims to protect insurance profits (and to supposedly lower auto insurance premiums).
Justice Goodfellow determined that the evidence actually showed insurance industry claims costs were decreasing, and company profits were increasing, when the Minor Injury legislation was introduced. Goodfellow indicated that the insurance industry had not provided this financial information to the government when the $2,500 cap was put in place.
His Lordship did not go so far as to say that the insurance industry had mislead the government. (Perhaps the Tory government was just too trusting?)
Goodfellow J. considered the negative effects of the legislation on accident victims who’s claims have been capped.
Minor Injury Cap has Provided Considerable Benefits?
Finally, His Lordship reviewed the evidence with respect to the benefits of the legislation.
He concludes by saying:
“There is no doubt that there has been considerable benefit to the citizens of Nova Scotia in the passing of this legislation.”
Benefits Don't Justify Discrimination!
Justice Goodfellow concludes, at paragraph 108 of his decision:
“Clearly there was no intent in the legislation to cause stereotyping or marginalization. Stereotyping almost always carries a negative, demeaning message that those who are stereotyped are less worthy and possess traits that are not held by decent, law abiding citizens. If, however, it had been established such was a consequence of the legislation, then I conclude the benefits of the legislation fall short of justifying such stereotyping. Given the view I express about stereotyping I am unable to suggest what the Attorney General of Nova Scotia might otherwise have done to overcome the consequences of stereotyping.”
In other words, Justice Goodfellow is of the opinion that the legislation does not discriminate against accident victims. But if it does, the object of the legislation is not one that can be justified in a free and democratic society. Goodfellow’s comments appear to imply that, if the legislation is discriminatory, then there is nothing that can be done to justify the discrimination!
So there you have it, win one lose one. The province and the insurance industry come out ahead on the issue of whether the Minor Injury legislation is unconstitutional.
But Justice Goodfellow sides with injured accident victims on the issue of whether the benefits justify discriminating against accident victims.
No doubt the Court of Appeal will not just be hearing an appeal from the Plaintiffs. I am sure lawyers for the Insurance Bureau of Canada are already drafting their appeal factums.
Continue reading "Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination" »
Have you ever used a sponge in a bucket of water to wash your car or your floors or windows? The easiest way I have found to explain how the brain can suffer an injury without the head being struck is to think of the sponge floating in the middle of a bucket of water. 
