Minor auto injury claimants do not have “immutable” characteristics eligible for Charter protection: lawyer

Minor auto injury claimants suffering from temporary disabilities do not have the same “immutable” characteristics required to receive constitutional protection against discrimination, insurers’ counsel have argued on appeal in Alberta.
Alan D’Silva, a partner at Stikeman Elliott LLP, presented to the National Insurance Conference of Canada the arguments the insurance industry has already made before the Alberta Court of Appeal.
The insurance industry is watching carefully the province’s appeal of an Alberta Court of the Queen’s Bench decision issued earlier this year. The court found the province’s Cdn$4,000 cap on minor auto injury claims was unconstitutional because it discriminated against whiplash victims.
The court found whiplash victims were labelled as “malingerers” who were faking the extent of their injuries for insurance purposes.
But “the claimants we are talking about seem to be people who have temporary disabilities,” D’Silva observed. “By definition, they don’t seem to fit into the category that Sections 15 [of the Charter] was intended to protect: people with immutable personal characteristics such as age, sex, ethnic background things you can’t change.
“This group of people seems to be people who are either going to get better, in which case they are back to work, etc., or they could get worse, in which case they meet the test of a serious impairment and the cap wouldn’t apply.”
D’Silva cited a Supreme Court of Canada authority in which Canada’s highest court said characteristics engaging Charter protection had to be “immutable” in nature.