Law Times

May 4, 2009

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Law Times • may 4, 2009 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On PERSONAL INJURY LAW sustained in motor vehicle acci- dents is heating up. Even as the Alberta Court of Battle heats up over damage cap constitutionality T Schism between Alberta and Nova Scotia courts BY JULIUS MELNITZER For Law Times he battle over the con- stitutionality of damage caps for "minor" injuries Appeal judgment in Morrow v. Zhang remained on reserve at press time, almost eight months after the hearing, Justice Walter Goodfellow of the Nova Scotia Supreme Court upheld the con- stitutionality of Nova Scotia's $2,500 damage cap in Hartling v. Nova Scotia (Attorney General). Zhang is an appeal from the decision of Associate Chief Jus- tice Neil Wittmann of the Court of Queen's Bench of Alberta strik- ing the province's $4,000 cap on damages for pain and suffering arising from minor injuries. Hartling arose when several plaintiffs who suffered injuries in a motor vehicle accident chal- lenged the definition of "minor injury" in the Insurance Act. The act defines minor injury as a personal injury that does not result in permanent serious dis- figurement, in permanent seri- ous impairment of an important bodily function caused by a con- tinuing injury which is physical in nature, and resolves within 12 months following the accident. The plaintiffs alleged the definition discriminated against individuals with certain types of pain and discomfort and there- fore constituted discrimination based on physical disability as defined in s. 15(1) of the Char- ter of Rights and Freedoms. But Goodfellow ruled that the extensive evidence before him failed to establish that the limited stigmatization or marginalization that did occur, resulted from the legislation. "What limited stigmatiza- tion and marginalization exists is a by-product of the adversarial system which predates the leg- islation and which, through the process of education, etc., is ev- er-diminishing," he wrote. "Unfortunately, the nature of the tort recovery system which is adversarial requires patients to focus on their pain and disabil- ity which is counter to the best methods of treatment which fo- cuses patients on their abilities. I conclude that the evidence advanced by the applicants falls markedly short of meeting the onus that persons suffering soft tissue injuries, even those that result in chronic pain, are ste- reotyped, stigmatized, or disad- vantaged by society." The case was different from Morrow v. Zhang, Goodfellow noted, where patients with soft tissue injuries "bore the entire im- pact of the Alberta legislation." Kozak, a partner at Reynolds Mirth Richards & Farmer LLP in Edmonton, who with colleagues Matt Woodley and Jeremy Tait- inger the plaintiffs, is that people with injuries far less significant than victims with soft tissue injuries were not affected by the cap. "The Alberta cap, for exam- successfully represented ple, wouldn't apply to someone who broke a finger or suffered a minor laceration or burn," Kozak says. "In the end, the cap was de- signed to perpetuate the idea that whiplash sufferers and other soft tissue victims weren't really suf- fering, and that notion is both wrong and discriminatory." The key to Zhang says Fred Kozak, is that people with inju- ries far less significant than victims with soft tissue injuries were not affected by the cap. Still, Kozak says the Nova Scotia cap may yet be subject to attack. "The 12-month limita- tion in the legislation may not ultimately survive, but that will depend on the kind of evidence other plaintiffs can put forward Indeed, Wittmann concluded the difficulty with Alberta's Mi- nor Injury Regulation was it did not apply equally to all minor in- juries. "I have found that soft tis- sue injury victims are subjected to prejudice and are stereotyped on the basis of the type of injury from which they suffer," he wrote. The key to Zhang, notes Fred to establish that it perpetuates the pre-existing stereotype," he says. However that may be, the in- surance industry has long touted caps and similar measures as es- sential to preserving affordable premiums for Canadian drivers. "The insurance industry be- PAGE 9 lieves that the cap maintained limits on the cost of minor inju- ries and allowed the industry to provide affordable and competi- tive auto insurance," says Rick Davison, a partner with Parlee McLaws LLP's Calgary office, who with colleague David Rolf, represented the Insurance Bureau of Canada in Zhang. (The Bu- reau, represented by Jeff Galway, a partner with Blake Cassels & Graydon LLP's Toronto office, also intervened in Hartling.) But Tom Achtymichuk, a partner with McCuaig Desro- chers LLP in Edmonton and past president of the Alberta branch of the Canadian Bar Association, has a different perspective. See 'Legitimate,' page 14 No shortage of litigation as to meaning of 'highway' T BY JULIUS MELNITZER For Law Times of Appeal appear to have dealt with the issue definitively. The act defines "highway" as including "a common and pub- lic, highway, street, avenue, parkway, driveway, square, place, bridge, viaduct, or trestle, any part of which is intended for or used by the general public for the passage of vehicles and in- cludes the area between the lateral property lines thereof." The words "any part of which" were added by amendment in 1983. As it turns out, they were at the heart of the insurance in- dustry's latest attempt to broaden the interpretation of the defi- nition, as evidenced by Becamon v. Wawanesa Mutual Insurance Co., decided by the Court of Appeal in February. here has been no shortage of litigation as to the meaning of "highway" in Ontario's Highway Traffic Act — even though both the Supreme Court of Canada and the Ontario Court The case arose when Bethily Becamon drove from her home to a strip mall located on Wilson Avenue in Toronto. Becamon had a G1 licence issued under the HTA. The licence required her to be accompanied by a fully licensed driver. But she was alone, and drove several kilometres along city street before arriving at the mall, whose parking lot was also used by traffic seeking a shortcut from Wilson to Bathurst. In any event, when Becamon tried to park at the mall, she hit the gas instead of the brake. The car mounted the sidewalk and hit a pedestrian, Mian Daud Shah. Eventually, Becamon pleaded guilty to driving without being properly accompanied and received a $105 fine. Shah sued Becamon for damages. But Wawanesa had insured See Lawyer, page 13 Becamon under a standard Ontario policy that included a statu- tory condition prohibiting the insured from driving unless so au- thorized by law. Wawanesa's lawyer, Donald Cormack, a partner at Baxter_LT.indd 1 www.lawtimesnews.com 12/11/08 9:02:24 AM

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