Law Times

PAGE 14 FOCUS may 4, 2009 • Law Times 'Legitimate' concern over rising general damages Continued from page 9 Zhang is a victory for all Albertans and Canadians because it restores people's access to justice by allow- ing the assessment of their injuries on an individual basis," he says. Still, Wittmann acknowledged that rising general damages were "a legitimate cause for concern" and "Th e initial judgment in that maintaining aff ordable man- datory automobile premiums was a "pressing and substantial objec- tive" for the government. "In sum, I fi nd that it was rea- sonable for the Crown to perceive that an insurance crisis existed or was imminent and that manda- tory automobile insurance was becoming inaccessible to many Albertans at the time that the Insurance Reforms were imple- mented," he wrote. Th e objective of the cap, then, was to reduce insurance premi- ums. Evidence at trial indicated the $4,000 cap reduced overall settlements 15.5 per cent while reducing minor injury settlements by 44.3 per cent. But these costs Key Developments in Environmental Law 2008-2009 (Formerly Environmental Law: The Year in Review) Stanley D. Berger and Dianne Saxe This collection of timely, insightful and judicious articles is written by a cross-section of highly qualified environmental law practitioners from across Canada. Articles include: • • • • • • Environmental and Climate Change Disclosure in 2008 by Alfred Page, Adam Chamberlain and John Vellone The Canadian and Québec Legal Framework for Greenhouse Gases Emissions by Florence Dagicour Resource Revenue Sharing in the Context of Consultation Requirements by Sandra A. Gogal Regulation of Cooling Water Intake Structures: A Case for Consultative Policy Making by Ahab Abdel-Aziz and Matthew Benson The Kearl Oil Sands Cases: Climate Change in Environmental Assessment and in the Courts by Sean Nixon • • • • Is Government Liability Expanding for Historic Pollution Clean- Ups? A Case Comment on Berendsen by Jack D. Coop Comments on the Supreme Court of Canada Decision in St. Lawrence Cement Inc. v. Barrette by Harry Poch To Remediate or Not to Remediate: That is the Question Lafarge Canada Inc. by David Crocker The Convergence of Administrative and Judicial Interpretation of Leave to Appeal Authority Under Ontario's Environmental Bill of Rights: Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) by Joseph F. Castrilli Order your copy today! Hardbound • 150 pp. • May 2009 • Standing order $105 • P/C 0152140000 • Current edition only $115 • P/C 0152010000 • ISSN 1913-0252 by John P. Barry, Jean-Yves Bernard and Nadia McPhee The Future of Environmental Approvals in Ontario: Baker v. were not the only factor contrib- uting to premium increases. "Th is is evidenced by the fact, that although claims costs had been rising for some time, the in- surance industry continued to be profi table," Wittmann wrote. While the IBC sought the cap to achieve what they be- lieved was a reasonable return on equity of 12.5 per cent, the evi- dence showed that the sector's profi ts had been increasing even before the imposition of the cap. "Th ese profi ts continued to Follow the continuing shift of the legal climate towards going "green" increase in the years following the imposition of the cap to the point where some of the com- panies had returns in excess of 33 per cent," Kozak says. While the government was entitled to choose from a range of reasonable options to deal with the insurance crisis, the choice of a cap placed the burden of doing so primarily on the shoulders of minor injury victims. "In assessing whether the MIR impairs the [equality] rights of the claimant group no more than was necessary, I must focus on wheth- er the Crown could have pursued its purpose of making mandatory automobile insurance premiums more aff ordable without dis- criminating or in a manner that minimized the discrimination," Justice Wittmann wrote. Here, the government had failed to demonstrate that the cap was a reasonable alternative. "In other words, the MIR 'plainly overshoots the mark' in terms of the interference it en- tails in relation to the rights of the claimant group," Wittmann wrote. Th e appropriate remedy was nullifi cation of the MIR. Alan D'Silva, a partner at Stike- man Elliott LLP Toronto offi ce, who represented State Farm Mu- tual Automobile Insurance Co. on the Zhang appeal, argued s. 15 didn' For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0509 Accident Benefits in Ontario James M. Flaherty and Catherine H. Zingg This resource provides both plaintiff and defence lawyers with in-depth guidance on the statutory Accident Benefits Schedule and is essential to achieving the best results for their clients. Looseleaf & binders (2), Internet access & electronic newsletter $419 • Releases invoiced separately (4/yr) • P/C 0456032000 Vol. 1 ISBN 0-88804-432-1 Vol. 2 ISBN 978-0-88804-473-0 Injury Cases, Second Edition Roger G. 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Brown Divided into two parts, Law and Practice, this unique looseleaf service serves as a legal reference and practical guide, offering insight into the tactics and strategies used to effectively bring and defend a product liability case. Looseleaf & binder • $169 • Releases invoiced separately (1/yr) P/C 0487030000 • ISBN 0-88804-347-3 t apply. "Our position was that people who suff er from minor injuries are not a group covered by the discrimination provisions be- cause the group is not one with immutable or permanent charac- teristics nor a historically disadvan- taged group," he said. D'Silva also pointed out that individuals with injuries that af- fect their life skills and ability to function are not subject to the cap. "Put another way, the group that might qualify under s. 15 are not limited in damages under the Alberta scheme," he said. State Farm, the insurer in- volved in Zhang, also maintained the courts shouldn't interfere with the cap because it represented part of a bargain following extensive consultation between the govern- ment and the insurance industry. "In fact, [former Alberta pre- mier] Ralph Klein ran for elec- tion while this legislation was being phased in, and his platform included a pledge that the legis- lation would reduce premiums, which in fact it did," he said. But the Ontario legislation, which imposes a $30,000 de- ductible on plaintiff s, may be safe from attack on grounds of discrimination. "Arguably, On- tario treats every victim similarly regardless of the type of injury suff ered, Kozak says. "Th at's something within the legislative purview of the province." Which is not to say that the Ontario legislation is safe from attack on other grounds. "I have a number of ways of going at an across-the-board deductible, but I'm not going to play my hand now," Kozak says. LT

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