Halifax Personal Injury Lawyer Blog

Whirlwind Week for Auto Accident Victims

It’s been quite a week for anyone interested in Nova Scotia’s automobile insurance minor injury cap.

Court of Appeal Decision

On Tuesday Chief Justice MacDonald released the Court of Appeal’s decision in Hartling v. Nova Scotia.

The Plaintiffs filed a constitutional challenge against Nova Scotia’s automobile insurance law which places a monetary cap of $2,500.00 on the compensation that injured car accident victims are entitled to receive for their pain and suffering.

Recap

During the original hearing, Justice Walter Goodfellow ruled that the legislation was not discriminatory and did not violate the Charter of Rights and Freedoms.

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Justice Goodfellow released a second part to his decision where he determined that, if the legislation was discriminatory, the benefits of the legislation were not sufficient to justify the discrimination.

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

Hope For Accident Victims

The decision offered hope to accident victims who felt that the Court of Appeal might give greater weight to the evidence of the adverse effects of the cap legislation.

Court of Appeal Dismisses Accident Victim’s Appeal

This week the Court of Appeal dashed the hopes of accident victims who have been told that the injuries they have suffered are minor and that compensation for pain is caped at $2500.00

Court of Appeal Agrees Legislation is Discriminatory

Chief Justice Smith agreed with the appellants on several issues:

Injured victims whose claims are capped by the legislation are treated differently from other automobile accident victims. Justice MacDonald ruled that this meets the distinction required by Section 15 of the Charter of Rights and Freedoms to establish discrimination.

The distinction is based on one of the prohibited ground of discrimination listed in the Charter. In this particular case accident victims were being discriminated against on the grounds of physical disability.

Chief Justice MacDonald acknowledged that minor injury victims are disadvantaged by the minor injury cap legislation.

Finally, Chief Justice MacDonald agreed that the court had to consider any evidence of prejudice or stereotype regardless of how limited it might be, in considering whether the legislation violates the Charter.

Balancing Act

However, after conducting an analysis of the evidence for each of these points Chief Justice MacDonald determined that the court had to consider whether the legislation’s purpose (controlling increasing auto insurance premiums) out-weighed the discriminatory effects of the legislation.

Minor Injury Cap Doesn't Eliminate All Right to Recovery

Chief Justice MacDonald distinguished the Supreme Court of Canada’s decision in Martin v. Nova Scotia (Workers Compensation Board) which found that the way in which Nova Scotia’s workers compensation legislation treated victims of chronic pain was discriminatory. Chief Justice MacDonald stated that, in Martin, claimants were denied all right of recovery whereas under the automobile insurance “minor injury” cap, victims’ right to recover compensation was limited rather than eliminated.

Legislation Doesn't Discriminate Against Women

Chief Justice MacDonald also dismissed the appellant’s arguments that the legislation unduly discriminates against female accident victims. While acknowledging that women have been historically disadvantaged in the work place Chief Justice MacDonald feels that the root problem of the discrimination and reduction in women’s wages were caused by unrelated social issues, not the minor injury insurance cap.

Minor Injury Cap Upheld

The Court of Appeal has decided that the minor injury cap legislation is discriminatory. However the discrimination is not sufficient to trigger the equality provisions of Section 15 of The Charter of Rights and Freedoms. In other words, the legislation discriminates. It just doesn’t discriminate enough to violate Canada’s constitution.

So there you have it, in Nova Scotia the minor injury compensation cap is constitutional and all of the limits and restrictions that the legislation places on innocent automobile accident victims are justified in pursuit of lower automobile insurance rates.

Supreme Court Denies Alberta Leave to Appeal

Accident victims in Alberta have been waiting for leave (permission) from the Supreme Court of Canada to appeal the decision of Morrow v. Zhang which upheld to constitutionality of Alberta’s minor injury automobile cap.

Minor Injury Cap Reinstated in Alberta

On Thursday morning the Supreme Court of Canada denied the accident victims’ leave to appeal. In other words, the Court wouldn’t even hear the victim’s appeal, let alone consider their arguments.

That means an appeal from Nova Scotia over the Hartling decision is also likely to be denied leave, since the Supreme Court only hears matters that have a national interest.

NDP to Repeal Minor Injury Cap

But not all hope is lost for accident victims.

Yesterday afternoon Premier Darrell Dexter confirmed the NDP government’s commitment to “scrap” the minor injury cap.

Premier Dexter was quoted as saying:

"The $2,500 cap is not fair to people who have suffered serious injury," he said.>"Insurance is a product designed to protect people. If you exclude people from protection through a $2,500 cap, then by definition you're not delivering the product that has been paid for."

Contact the Premier

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

My colleague David Brannen has posted a more thorough analysis of the hartling decision on his Nova Scotia Car Accident Law Blog. Take a look.

Continue reading "Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law" »

The Discovery Process

One of the most important steps in any personally injury claim is the oral discovery. If you file a lawsuit for compensation for personal injuries you will be required to testify about your knowledge of the event that lead to the lawsuit and your knowledge of the injuries that you have suffered.

In other words; what happened? How badly were you injured? How have the injuries effected your life?

A discovery is basically a question and answer session where you swear (or affirm) to tell the truth. The question and answer session is recorded by a court reporter who will type up a transcript of all the questions and answers. That transcript can be used later in court.

Since more than 90% of civil lawsuits settle before trial, the oral discovery is probably the most important step in the litigation process. As the name implies, the discovery process allows each side to “discover” all there is to know about the other side’s case. Each side gets a better understanding of the strengths and weaknesses of their claim and their opponents claim. They are able to judge how the plaintiff and defendant will appear if they have to testify in court.

In short, the discovery process provides a “dry run” for how the witness will testify at trial.

Before your discovery your lawyer will meet with you to prepare you for the discovery. I have prepared a report for all of my clients who are getting ready for discovery so that they can read it at their leisure and we can discuss any questions that they have. If you would like a copy, feel free to contact me through this blog.

Continue reading "What is a “Discovery”? Halifax Personal Injury Lawyer Explains" »

Is it better to be killed by someone's negligence in Canada or the United States?
I'm sure most people would answer that question: "None of the above". But the reason I ask is to point out the significant differences in compensation claims between Canada and the United States. I was remined, yet again, of these differences when I read a post by Ron Miller on his excellent Maryland Injury Lawyer Blog.

Wrongful Deaths Claims for Elderly Victims

Mr. Miller was explaining how wrongful death claims for elderly victims are valued in the state of Maryland. Defence counsel usually claim that the victim's claim needs to be discounted because, since they were elderly, their life expectancy was shorter than a younger person. Mr. Miller points out:

The “victim was old anyway” argument is offensive and cold…but not, relatively speaking, entirely untrue.

Wrongful Death Claims Different in Canada

But at least in the United States, the victim's estate can make a claim for compensation. As I pointed out last week, in my post Nova Scotia Personal Injury Claims: Compensation for Fatal Injuries , in Canada the victim's estate can't make a claim for the pain and suffering that caused the victim's death!

Fatal Injury Compensation Claims Limited in Nova Scotia

In Nova Scotia and other provinces in Canada, the family of wrongful death victims are limited to a claim for loss of care, guidance and companionship.

If you think it's tough to tell a grieving family: "I'm sorry, but your Granddad's death isn't worth much because he was old..." try telling them that Grandad's estate can't make a claim...at all!

Who Can Make a Claim?

Worse, only certain family members can make a claim for the loss of Granddad's care guideance and companionship and in Canada, those claims typically max out at around 60 thousand dollars.

The Winner Is...

So, to answer the question I asked above, if you are going to be killed as the result of someone else's negligence, at least in the United States your estate (your surviving family members) have a chance at receiving some reasonable measure of compensation for your death.

Here's hoping everyone reading this has a long, happy and negligence free life!

By the way, if you have questions about American personal injury claims, I highly recommend you take a look at Mr. Miller's blog.

How Do You Put a Price on the Loss of a Loved One?

I have already posted about how the courts calculate compensation for pain and suffering. But what happens if your family member died from their injuries?

There is no way to truly place a dollar value on the loss of a loved one due to a fatal injury. Law makers in Canada and the courts have struggled with the question of how to fairly compensate surviving family members for the loss of a loved one.

American Claims Very Different Than Canada

Many of us have read news reports of cases in the United States where surviving family members have been awarded huge sums of money for the death of a family member. Unfortunately, the laws in Canada regarding compensation for fatal injuries are very different, and compensation awards rarely reach the levels seen in American cases.

Different in Each Province

Each province in Canada has laws governing claims for compensation for fatal injuries. The laws allow a claim to be made by the family members of a deceased person where his or her death is caused by an intentional or negligent act.

Financial Losses Covered

Originally claims for compensation were limited to the monetary losses suffered as a result of the fatal injury. In other words, the actual out of pocket financial loss resulting from the person’s death.

No Compensation for Grief

The law does not take into account non-financial losses like the grief and sorrow experienced by family members.
Compensation for Loss of Companionship

Currently every province in Canada has legislation that allows certain family members to recover some measure of compensation for the loss of care, guidance and companionship that the deceased family member would have provided had they not passed away.

It is important to remember that each province has its own specific law with special rules governing which family members are entitled to make a claim, how the claims are to be assessed, and the amount of damages that can be recovered.

Who Can Make a Claim?

In any claim involving a fatal injury it is important that you speak to an experienced personal injury lawyer to determine which family members are eligible to make a claim for compensation and to ensure that their claim for compensation is properly calculated.

For example, in Nova Scotia, claims for loss of care, guidance and companionship can only be brought by parents, grandparents, children and spouses (including common law). Siblings (brothers and sisters) are not entitled to file a claim for compensation!

Every Case is Different

The amount of compensation that can be recovered in Nova Scotia depends a great deal on the nature of the relationship and the facts of each particular case. If you are considering filing a claim for compensation for the loss of a loved one it is vitally important that you speak to an experienced personal injury lawyer to ensure that all of the relevant facts and evidence are provided to the court to ensure that you receive full and fair compensation.

Continue reading "Nova Scotia Personal Injury Claims: Compensation for Fatal Injuries" »