Alberta Appeal Court Rules That Auto Cap Legislation Does Not Infringe The Charter

The Alberta Court of Appeal has ruled that the province’s legislation introducing a $4,000 cap on insurance claims for minor auto injuries does not infringe the Canadian Charter of Rights and Freedoms.

In doing so, the appeal court overturned a lower court decision in February 2008 that found the Alberta cap legislation discriminated against victims of whiplash injuries and was therefore unconstitutional.

Writing for a panel of three judges, Alberta Court of Appeal Justice Patricia Rowbotham observed that the trial judge in the lower court, Alberta Court of Queen’s Bench Justice Neil Wittmann, focused his analysis exclusively on one part of Alberta’s 2004 legislation, the Minor Injury Regulation (MIR), which introduced the cap.

That focus was too narrow, Rowbotham ruled.

“The trial judge erred in failing to realize the insurance reforms as a complete package,” she wrote. “I conclude that his determination that individuals suffering minor soft tissue injuries are subject to stereotyping are subject to deference. However, I find that he erred in concluding that the insurance reforms as a whole perpetuate the stereotype.”

The Court of Appeal decision notes the MIR represents one aspect of a wider legislative scheme that also included protocols for diagnosing and treating minor injuries. The legislation also increased medical benefits available to minor injury claimants who still required treatment after preliminary medical treatment protocols were followed.

For example, the MIR was brought in along with the Diagnostic and Treatment Protocols Regulation (DBTR), which provides for 10 or 21 treatment sessions in the first 90 days of the injury without the need to seek approval from the insurer.

Assuming the treatment protocols in the DBTR are followed, after a 90-day period is reached, an injured person can apply to an insurer for further payments, which the legislation increased from $10,000 to $50,000.

“In my view, [the trial judge] failed to analyse the insurance reforms as a whole, including the DPTR, which rather than perpetuating the stereotype, recognizes that the injuries suffered by MIR claimants are real and ought to be treated as such.

“Similarly, in analyzing whether the legislation meets the needs and circumstances of the claimants, the trial judge failed to assess the medical benefits provided to minor injury claimants in exchange for their reduced damages for pain and suffering.”