January 31, 2011 by
Legislative limits on general damages for minor injuries arising out of motor vehicle accidents, colloquially known as caps, have been subject to judicial scrutiny and legislative reform across Canada. The appellate courts in Alberta and Nova Scotia have upheld the constitutionality of minor injury regulations. While challenges have not been heard in New Brunswick or Prince Edward Island, given the recent court pronouncements, it does not seem the constitutionality of caps is seriously in issue. With a few early cases offering some guidance as to when a claim will fall within the cap, what lies ahead are disputes over whether a plaintiff’s injury is minor or not.
Two forms of legislative cap schemes
Generally speaking, there are two very different forms of legislative cap schemes in Canada, one broad and one narrow.
The broad cap scheme has existed in New Brunswick since Jul. 1, 2003, Prince Edward Island since Apr. 1, 2004 and in Nova Scotia for accidents occurring between November 1, 2003 and Apr. 27, 2010 (the old cap in Nova Scotia). All three define a minor injury (or minor personal injury) as one that does not result in:
(i) a permanent serious disfigurement; and
(ii) a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature.
The Nova Scotia definition uniquely requires that the injury resolve within 12 months following the accident. All three define “serious impairment” as an impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment. All three limit the recovery of general damages to $2,500.
While there are some differences between the three provinces’ schemes, the broad spectrum of injuries to which the cap may apply is what unites them. These schemes do not apply exclusively to soft tissue injuries, although in Nova Scotia, some categories of injury are expressly excluded, such as burns causing serious disfigurement. The New Brunswick legislation alone uses both the terms “minor personal injury” and “soft tissue injury.” The Court of Appeal in LeBlanc v. Bulmer ruled that these two phrases are not mutually exclusive.
The narrow cap scheme has been in place in Alberta since Oct. 1, 2004 and in Nova Scotia since Jul. 1, 2010 for accidents occurring on or after Apr. 28, 2010 (the new cap in Nova Scotia). Both provinces incorporate a narrow definition of minor injury requiring that the injury be a sprain, strain or whiplash associated disorder. It would appear that injuries other than the soft tissue variety are excluded. The definitions of “serious impairment” are essentially identical and state that it must be an “impairment of a physical or cognitive function” that meets three requirements. The cap in Alberta was $4,000 as of 2004 with yearly adjustments for inflation. The cap in Nova Scotia was $7,500 as of 2010 also with an inflation adjustment mechanism.
Whether the burden is on the plaintiff or the defendant depends on the legislation. Under the old cap in Nova Scotia, there is a presumption that the injury is minor thus placing the burden on the plaintiff to prove it is not minor. The schemes in New Brunswick and PEI do not specify an evidentiary burden, although the New Brunswick Court of Appeal in Fraser v. Haines held that the defendant has to prove that a plaintiff’s injury is minor.
In Alberta, sprains, strains or WAD injuries are considered to be minor injuries unless the plaintiff establishes that they would have resulted in a serious impairment. In this way, there is no presumption that an injury is minor, but rather a presumption that the listed injuries are minor injuries. Under the new cap in Nova Scotia, the presumption that an injury is minor has been removed and it is yet to be seen whether the burden will be placed on the plaintiff or the defendant. The Nova Scotia scheme does allow parties to make a pre-trial motion to determine whether the plaintiff has suffered a minor injury.
Constitutional challenges to the cap
Both forms of legislative cap scheme have come under judicial scrutiny for their constitutionality.
In Morrow v. Zhang, the Alberta Court of Queen’s Bench struck down the Alberta cap on the basis that it infringed the plaintiff’s equality rights under section 15 of the Charter, but found no infringement of the section 7 life, liberty and security guarantee. The Alberta Court of Appeal overturned the trial judge’s decision on section 15 and upheld the constitutionality of the Alberta cap. In December 2009, the Supreme Court of Canada denied leave to appeal.
The old cap in Nova Scotia was challenged in Hartling v. Nova Scotia (Attorney General). The Nova Scotia Supreme Court concluded that the legislation did not violate the section 15 equality guarantee in the Charter. The Nova Scotia Court of Appeal upheld that decision. Leave to appeal to the Supreme Court of Canada was denied in May 2010.
It is uncertain whether there will also be constitutional challenges to the cap schemes in New Brunswick and PEI, although there are test cases in New Brunswick. A recently-announced New Brunswick task force is expected to issue a report reviewing the cap in May 2011.
Early cap cases
With the constitutional challenges settled, the new battleground will be whether a plaintiff’s injury falls within the definition of minor injury. There have been less than a handful of cases that have decided whether an injury should be classified as minor and thus subject to the cap, two from Nova Scotia and two from New Brunswick (and all dealing with the broad cap). There are no such reported cases from PEI or Alberta.
In Rossignol v. Rubidge, a 2007 New Brunswick case, the plaintiff suffered fractures of his right tibia and fibula and offered expert evidence from a clinical psychologist that he suffered post-traumatic stress disorder (PTSD). The Court accepted the defendant’s expert’s evidence who disputed the PTSD diagnosis. It could not conclude the plaintiff had suffered a permanent serious impairment of any bodily function much less an important bodily function. In the result, the Court held that the injury was minor and fell within the cap. The Court noted that the Ontario cap legislation, although in some respects different, was useful in interpreting that of New Brunswick and cited heavily from the Ontario cases.
In Fraser v. Haines, a 2007 New Brunswick case, the plaintiff, a construction worker, suffered a soft tissue injury to his shoulder and alleged he could no longer drive stakes into the ground with two hands. The Court was persuaded that the accident did not result in a serious injury that substantially impaired the plaintiff’s activities or employment. He was still able to perform his job very well albeit in a different manner. The plaintiff’s general damages were capped at $2,500. The Court of Appeal upheld the decision noting generally that an injury may be serious, but that does not mean there has been a serious impairment. The Court further noted that before a finding of “serious impairment” could be made, there must be a substantial interference with a person’s usual daily activities or ability to perform their employment. Whether a plaintiff’s injury results in a “serious impairment” is a finding of fact to be made by the trial judge based on a subjective assessment on a case-by-case basis.
In Beaulieu v. Gyuraszi, a 2008 case that proceeded to the Nova Scotia Supreme Court, but applied the PEI scheme since the accident took place in PEI, multiple medical experts testified for both sides. The defendant had obtained an Independent Medical Evaluation (IME) from a specialist in orthopaedics and called him as a witness. There was also surveillance evidence.
The Court relied heavily on medical opinion in assessing all heads of damage and found that the plaintiffs’ injuries fell within the cap.
In the 2009 case of Farrell v. Casavant, the plaintiff suffered a broken right wrist, a chipped bone in his left hand, a contusion to his right ankle, and soft tissue injuries to his lower back. The Nova Scotia Supreme Court applied the cap finding that the plaintiff’s injuries did not cause substantial interference with his usual daily activities or employment as an assistant manager at Wal-Mart. Quoting from the Ontario Court of Appeal’s 1993 decision in Meyer v. Bright, the Court emphasized that whether an injury will be classified as minor will depend on the effect of the injury on the particular plaintiff. Therefore, even if the injury is one that most people would consider serious, such as a broken back, if no permanent serious disfigurement or permanent serious impairment of an important bodily function results, and if the injury resolves within twelve months, the injury will qualify as minor. Conversely, if the injury is one that most people would consider minor, such as a broken finger, it will not be considered minor if that finger belongs to a harpist who is no longer able to work as a harpist. In other words, if a seemingly minor injury (like a broken finger) results in a “substantial interference” with the person’s ability to perform their usual daily activities or regular employment, the injury will not be classified as minor.
What lies ahead: IME’s and judicial guidance
The Alberta regulations describe a comprehensive scheme for medical assessments by a certified examiner. In the other provinces, the defence must make a decision on whether to obtain an IME. In some of the cases to date, IMEs have been used to counter a plaintiff’s subjective claims of injury. This, along with the use of other methods such as surveillance, social media and employers’ records, may be critical in assessing whether an impairment is serious. That is, whether the injury causes substantial interference with one’s usual daily activities or regular employment. It is clear that more judicial guidance is necessary to allow counsel for both plaintiffs and defendants to better predict and advise as to whether an injury is minor or outside the applicable cap.
Christa M. Brothers is a partner and Joseph A. Chedrawe is an associate at Stewart McKelvey in Halifax, NS. They are both members of Canadian Defence Lawyers.