The New Class of Disability

Apparently the Court of the Queen’s Bench of Alberta has carved out a new category of ‘disabled’ people — those who have suffered minor whiplash injuries in car collisions — who have apparently been discriminated against in ways in which other marginalized groups in Canadian society can only imagine.

Witness this passage from Court of the Queen’s Bench Associate Chief Justice Neil Whittmann, who recently obliterated Alberta’s Cdn$4,000 cap on damages for minor injuries sustained in car collisions: “The evidence before me suggests strongly that minor injury victims, particularly those suffering from a whiplash associated disorder, are subjected to stereotyping and prejudice. In sum, they are often viewed as malingerers who exaggerate their injuries or their effects in an effort to gain financially. The fact that these injuries are often not objectively verifiable may contribute to this perception.”

How did this stereotype come to pass? Apparently, according to the court, proof by assertion is all it takes to be a minority group suffering Charter discrimination. “I would simply note that the existence of a stereotype does not require that it be universally accepted,” Whittmann wrote. Maybe so, but more evidence of negative stereotyping should exist than merely victims declarating that it is so.

Regardless, Alberta’s Cdn$4,000 minor auto injury damage cap is no more — swept away as unconstitutional because it discriminates against a new sub-category of people with disabilities. Never mind the fact that the court incorrectly compared minor whiplash victims to a supposedly analogous group of injury victims who apparently have Charter rights to sue insurers for more money. “Simply put,” Whittmann wrote, “the [appropriate] comparator group consists of those accident injury victims whose injuries are not within the definition of minor injury.”

Alas, the learned judge seems to have a better grasp of the population of this category than most. Exactly who is this group of people not covered under Alberta’s legislative regime for minor auto injuries, but who nevertheless could have sued for more than Cdn$4,000?

It’s quite possible the court decision here is conflating injury classes. Is the court saying, for example, that the comparator class includes catastrophic injury victims? Why would it be appropriate to compare the treatment and legal rights afforded to these two distinct classes of auto collision injury victims?

Indeed, the point of Alberta’s 2004 auto reforms was to differentiate the treatment of the pain and suffering of “minor” auto collision victims, as defined in law, with the treatment of the victims who suffer major — indeed, permanent and catastrophic — injuries sustained in car collisions. For this class of people with catastrophic impairments, the Cdn$4,000 litigation cap does not apply.

One of the main differentiations between these two classes of auto collision victims is that in minor auto injury cases, the ‘disability’ is more often than not of a temporary nature. In catastrophic cases, the injuries are more likely lead to permanent disfigurement and/or disability. Thus the duration of the disability and the severity of the disability’s consequences for the victim makes the different classes of injury distinct.

It’s doubtful an ordinary policyholder would say it’s constitutionally unjust or ‘discriminatory’ to distinguish between these two classes of victims. No one would argue, for example, that minor injury victims should receive the same financial compensation as catastrophic injury victims. And no one would argue that catastrophic injury victims should be subject to a Cdn$4,000 litigation cap.

Where the Alberta Court went wrong is that it didn’t compare the right groups. And no doubt this is likely one of the points that will be raised on appeal.

Insurers and politicians established the cap for public policy reasons, the court notes — namely that of helping to keep everyone’s auto insurance rates down (including those of the minor injury victims, it should be pointed out).

But the court says this doesn’t constitutionally excuse the discrimination against minor injury claimants. Why? Because claims costs aren’t the only factor in premium pricing. It’s also about cycle management as well, the judge says. And so, the logic goes, minor injury victims have been unfairly targeted by insurance companies that should be making better business decisions when it comes to managing the cycle.

Whatever one thinks of this argument, pricing is also about predictability of costs. So now two people have had their claims go from predictable Cdn$4,000 payouts to unpredictable Cdn$21,000 and Cdn$15,000 payouts — with no real sense of how high these limits may go until more cases without a cap are heard. The decision will no doubt make it impossible for the Alberta government and insurers to figure out how high these damage awards for minor injury sufferers might go, resulting in rate increases for everyone in the province.

The interesting thing will be to watch a similar case coming to trial in Atlantic Canada. If the courts there keep the cap, and say minor injury victims do not suffer discrimination under the Charter because of the cap, we can expect this one to make it to the Supreme Court in no time.