Claims (March 01, 2009)

NOVA SCOTIA CAP RULING, PART TWO

The judge of the Supreme Court of Nova Scotia who dismissed the challenge to the province’s minor injury cap has issued a second part to his written decision.

Justice Walter Goodfellow issued the second part of the Hartling et al. v Nova Scotia decision in anticipation that his Jan. 12, 2009 decision would be appealed in higher courts.

In the second part of his decision, he finds that even if the province’s auto cap legislation did stereotype or discriminate against the injured — a moot point, since in the first part of his decision, he finds that it did not — such discrimination would have been saved under s. 1 of the Charter.

The Feb. 2, 2009 decision addresses the issue of section 1 of the Charter of Rights and Freedoms.

The Section 1 analysis, also called the Oakes test, consists of four branches. One of them is whether or not the negative effect of a Charter breach is outweighed by the positive effects of the legislation.

Goodfellow noted the following, positive effects of the legislation, among others:

• reduced auto insurance rates;

• the establishment of the province’s Insurance Review Board; and

• allowing courts to impose structured settlements.

CROSS-BORDER ENVIRONMENTAL CLAIM TO BE HEARD IN CANADIAN AND U. S. COURTS

A mining company in British Columbia suing its insurers for coverage in an environmental claim may have its case heard in both U. S. and Canadian courts, opening up the possibility of conflicting rulings in different jurisdictions.

Teck Cominco Metals Ltd. sued its insurers in the United States for coverage related to environmental damage that is alleged to have occurred in the United States, downstream from Teck’s British Columbia smelter site.

Teck asked both the B. C. Supreme Court and the B. C. Court of Appeal to stay the Canadian proceedings because, the company argued, the U. S. courts were the appropriate jurisdiction to hear the case.

But in Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, the Supreme Court of Canada ruled proceedings in B. C. related to the insurance coverage matter could con- tinue despite the assertion of jurisdiction by the U. S. District Court of the State of Washington.

B. C.’s Court Jurisdiction and Proceedings Transfer Act lists a number of relevant factors to consider when determining the jurisdiction in which a case should be heard.

The assertion of jurisdiction by a foreign court “is not an overriding and determinative factor in the…analysis,” the Supreme Court ruled, effectively refusing to stay the Canadian proceedings.