Nova Scotia judge issues second part of decision in minor injury cap challenge

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.
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 — then such discrimination would have been allowed under s. 1 of the Charter.
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.
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:
1.    Is the objective of the legislation pressing and substantial?
2.    Is there a rational connection between the government’s legislation and its objective?
3.    Does the legislation minimally impair the charter right or freedom at stake?
4.    Is the deleterious effect of the charter breach outweighed by the salutary effect of the legislation?
If the legislation fails on any of the above four branches, it cannot be justified, Goodfellow wrote.
Goodfellow concluded that the legislation does not cause stereotyping or marginalization.
“Stereotyping is most often a force diametrically opposite to equality and human dignity,” he wrote. “Clearly there was no intent in the legislation to cause stereotyping or marginalization. Stereotyping almost always carries a negative, demeaning message that those who are stereotyped are less worthy and possessed of traits that are not held by decent, law-abiding citizens.”
However, even if it had been established that stereotyping had been a negative consequence of the legislation, the judge noted, the positive effect of the legislation outweighed the negative effect of the stereotyping.
Goodfellow cited 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.