January 13, 2009 by Canadian Underwriter
In Hartling v. Nova Scotia, the Supreme Court of Nova Scotia has thrown out a Charter challenge to the province’s Cdn$2,500 cap for minor auto injuries, saying the cap does not discriminate on the basis of either sex or disability.
In his 104-page decision, Supreme Court of Nova Scotia Justice Walter Goodfellow said the evidence in the case before him not only failed to establish an infringement of the applicants’ rights on a balance of probabilities, “but rather established overwhelmingly that there is no stigmatization or marginalization resulting from the legislation.
“What limited stigmatization and marginalization exists is a by-product of the adversarial system which pre-dates the [cap] legislation and which, through the process of education, etc., is ever-diminishing.”
Goodfellow noted the nature of the adversarial tort system requires “patients to focus on their pain and disability, which is counter to the best methods of treatment which focusses patients on their abilities.”
Goodfellow also drew a distinction between the Nova Scotia case and the Alberta Court of Queen’s Bench decision last year in Alberta.
In Alberta, Court of the Queen’s Bench Justice Neil Wittmann found that Alberta’s Cdn$4,000 minor injury auto cap did infringe the Charter because it discriminated against victims of “soft tissue injuries,” language contained in the Alberta legislation.
“The legislative scheme being attacked [in Nova Scotia,] specifically s. 113B(1)(a) of the Insurance Act, is, as noted, broader than the Alberta provision held by [Justice] Wittmann to be unconstitutional,” Goodfellow wrote. “The cap [in Nova Scotia] applies to all minor injuries and not restricted solely to ‘soft tissue injuries,'” Goodfellow observed.
Goodfellow further observed the cap scheme in Nova Scotia wasn’t discriminatory in the sense that “the legislative scheme does not deny those accident victims who suffer minor injuries the right to pursue their pecuniary losses such as loss of income, health care costs, loss of domestic services, et cetera, et cetera.” [Note that this is true of the Alberta cap legislation as well.]