The Waiting Game

Most people observing the court proceedings associated with caps on payments for minor auto injuries expect the issue to go all the way to the Supreme Court. The recent decision in Nova Scotia’s Hartling case all but seals the deal.

In Hartling, the Nova Scotia Supreme Court upheld the constitutionality of the province’s Cdn$2,500 cap on insurance payments to victims of minor auto injuries.

In doing so, the trial judge in the Nova Scotia case made an explicit — if fleeting — reference in his decision to the Alberta Court of the Queen’s Bench decision last year that came to precisely the opposite conclusion that he did.

The Alberta court concluded that its province’s Cdn$4,000 cap on minor auto injuries was constitutionally invalid based on the grounds that it discriminated against people suffering from “soft tissue injuries” (i. e. such as whiplash victims). The Alberta judge noted the legislation reinforced a discriminatory stereotype that whiplash victims were somehow faking their injuries or were “malingerers.”

The Nova Scotia judge, in contrast, upheld the auto injury cap in his province, finding that it was not discriminatory against women or people with disabilities.

In and of themselves, the contradictory decisions might have been enough to warrant the Supreme Court taking a second look, assuming an appeal (you can bet the house and the car on it). But the fact that the Nova Scotia judge draws a comparison between the facts in his case and the facts in the Alberta case will most definitely engage the Supreme Court’s mandate to ensure consistent law across the land.

In Nova Scotia, the legislation does not define the character of a minor injury in the same way as Alberta’s cap legislation. For example, in Nova Scotia, the legislation does not list characteristics such as “soft tissue injuries” in an effort to categorize a group.

In contrast, the Nova Scotia decision spends a great deal of time discussing when and how a minor injury “resolves,” which is a cornerstone of the Nova Scotia cap legislation. It’s the temporal nature of the injury, and not the character of it (as in Alberta), that saved the day for the insurance industry in Nova Scotia.

“The legislative scheme being attacked [in Nova Scotia]… is, as noted, broader than the Alberta provision held by [Justice Neil] Wittmann to be unconstitutional,” Nova Scotia Supreme Court Justice Walter Goodfellow wrote. “The cap [in Nova Scotia] applies to all minor injuries and not restricted solely to ‘soft tissue injuries.'”

Based on this explicit comparison between cap laws in Alberta and Nova Scotia, case law on minor injury auto caps in Canada is now officially all over the map. This leaves us with a situation that fits squarely within the four corners of the mandate of the Supreme Court, which only agrees to hear appeals of cases that have broad, national implications.

What happens now? Lots of politics, that’s what.

Of course trial lawyers will attempt to score some points with the public on behalf of their wounded clients. To counter this, insurers have praised the Nova Scotia decision as a win for consumers generally, because insurers won’t have to raise their insurance premiums.

Insurers should probably appeal to the public’s sense of fairness as well. The Nova Scotia decision, for example, serves to correct the tendency of trial lawyers to collapse a legitimate distinction we all make between minor and catastrophic injuries. Speaking rhetorically, it makes perfect sense to pay the victim of a hangnail nothing and the person with the brain damage and spinal cord injury $1 million in damages. Why? Not because hangnails are inherently better or worse than brain or spinal cord injuries, but because hangnails go away or “resolve” quickly, whereas catastrophic injuries are permanent and drastically alter how victims live their lives.

Insurers need to drive home the point with the public that victims of serious, long-lasting or permanent injuries are not subject to cap legislation.

In the meantime, will someone please launch the appeal that will send this mess to the Supreme Court once and for all? The suspense is killing us.

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Case law on minor injury caps is now officially all over the map. This leaves us with a situation that fits squarely within the four corners of the mandate of the Supreme Court.