Minor Injury Cap Reinstated in Alberta

by John McKiggan

Last week the Alberta Court of Appeal released its decision in Morrow v. Zhang.

Alberta introduced legislation placing a “cap” of $4000.00 on the compensation that persons who suffered a “minor injury” were entitled to receive. The plaintiff’s Morrow and Pedersen appealed the cap claiming that it infringed their rights under Section 15(1) of the Canadian Charter of Rights and Freedoms.

The trial judge ruled that, were it not for the “minor injury” cap, the plaintiffs would have been entitled to non-pecuniary damages in excess of the $4,000.00 cap. The trial judge also found that the distinction in the legislation between people that had suffered a minor injury and other injured victims resulted in substantive inequality resulting in an unequal distribution on financial benefits.

The trial judge found that the legislation was discriminatory and that the distinction was not reasonable and justified under the Charter. The trial judge struck out the cap as being unconstitutional.

Province of Alberta and Insurance Industry Appeals

The Alberta Court of Appeal has ruled that the minor injury cap legislation must be considered as a whole and not in isolation. The Court of Appeal stated that while the legislation did make a distinction on the basis of disability, the distinction was not discriminatory.

Trade-Off of Rights/Benefits

The court appears to focus on the fact that while victims of “minor injuries” would receive lower compensation for non-pecuniary damages (“pain and suffering”) the trade off was that all victims of car accidents were entitled to increased no-fault medical benefits.

The court stated that a reasonable person in the position of a minor injury claimant would not conclude that the distinction created by the minor injury cap was discriminatory.

This finding is puzzling. I have explained the Nova Scotia minor injury cap to hundreds, if not thousands, of accident victims since Nova Scotia introduced similar legislation. Unanimously, injured victims feel that it is unfair that they are being singled out by the legislation when injured persons whose claims exceed the cap are entitled to full compensation.

Nova Scotia Appeal to be Heard in October

The appeal of Nova Scotia’s minor injury cap legislation is scheduled to be heard in October of this year. It remains to be seen how the Nova Scotia Court of Appeal will deal with this issue.

Stay tuned.

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