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Plans to appeal Nova Scotia cap decision announced


January 16, 2009   by Canadian Underwriter


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One day after the Supreme Court of Nova Scotia upheld the province’s Cdn$2,500 cap for minor auto injuries, the Nova Scotia Coalition Against No-Fault Insurance held a press conference announcing it intends to appeal the decision.
The coalition is an advocacy group supporting the plaintiffs in the case Hartling v. Nova Scotia, in which the court held that the province’s minor injury cap was not discriminatory under the Charter on the basis of sex or disability.
As reported in The Chronicle Herald, at the press conference, coalition chairwoman Susan Hanrahan said the Supreme Court of Canada and the Court of the Queen’s Bench in Alberta have both ruled that chronic pain sufferers are the targets of discrimination.
“[Supreme Court of Nova Scotia] Justice [Walter] Goodfellow has totally ignored those courts’ rulings in rendering his decision,” she said.
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.'”
David Brannen, a personal injury lawyer with the Cantini Law Group, commented on the decision in his online blog Injurylawblog.com.
“You should seek your own legal advice, but as a general rule, it is usually prudent for people to wait for the final outcome of the appeals regarding the [Cdn]$2,500 cap,” Brannen wrote. “If you settle for [Cdn]$2,500, you cannot re-visit your case later if it turns out one of the higher courts later over-rules the cap.”
Brannen further noted the outcome of the appeal “is at best several months away, and at worst, well over a year away.”
Meanwhile, Aviva Canada, which says it played “a key role in defending the legislation,” called the court’s decision “an important step in maintaining an affordable and sustainable provincial auto insurance system.”
“The Court’s decision is great news for auto insurance customers in Nova Scotia and across Canada, and sends a clear message that minor injury capping is a fair and sensible way to manage the affordability of auto insurance in the province” remarked Robin Spencer, president and CEO of Aviva Canada. “It’s encouraging that Nova Scotians will continue to benefit from premium reductions achieved as a result of legislation passed five years ago.”