BILL
NO. 52
(as
introduced)
2nd
Session, 61st General Assembly
Nova Scotia
59 Elizabeth II, 2010
Government Bill
Insurance
Act
(amended)
The
Honourable Graham Steele
Minister responsible for the Insurance Act
First Reading: April 28, 2010
Second Reading:
Third Reading:
Explanatory Note
This Bill amends the Insurance Act respecting
the restrictions on claims for minor injuries by
(a) authorizing regulations defining words or
expressions to provide different definitions for different provisions of the
Act;
(b) restricting the meaning of minor injury;
(c) requiring insurance companies to offer their
policyholders the option of coverage without regard to the limitation on minor
injury claims; and
(d) authorizing regulations respecting a system or
process for the examination, assessment and treatment or rehabilitation of
bodily injuries suffered by an insured.
An Act to Amend Chapter 231
of the Revised Statutes, 1989,
the
Insurance Act
Be it enacted by the
Governor and Assembly as follows:
1 Section
5 of Chapter 231 of the Revised Statutes, 1989, the Insurance Act, as amended
by Chapter 1 of the Acts of 2003 (Second Session), is further amended by adding
immediately after subsection (3) the following subsection:
(3A) A
regulation made pursuant to clause (na) of subsection (3) may define words or
expressions differently for different provisions of this Act.
2 (1) Subsections
113B(2), (3) and (5) of Chapter 231 are repealed.
(2) Section 113B of Chapter 231, as enacted by
Chapter 1 of the Acts of 2003 (Second Session), is further amended by adding
immediately after subsection (8) the following subsection:
(9)
This Section and any regulations made with respect to this Section do not apply
to any action for damages with respect to an incident that occurs on or after
the twenty-eighth day of April, 2010.
3 Chapter 231 is further
amended by adding immediately after Section 113B the following Section:
113BA
(1) Notwithstanding any enactment or any rule of law, but subject to subsection
(6) of Section 113B and subsection (4) of Section 113E, the owner, operator or
occupants of an automobile, any person present at the incident and any person
who is or may be vicariously liable with respect to any of them, are not liable
in an action in the Province for the following damages for income loss and loss
of earning capacity from bodily injury or death arising directly or indirectly
from the use or operation of the automobile:
(a) damages for income loss
suffered before the trial of the action in excess of the net income loss, as
determined by regulation, suffered during that period;
(b) damages for
loss of earning capacity suffered after the incident and before the trial of
the action in excess of the net loss of earning capacity, as determined by
regulation, suffered during that period.
(2) Subsection (1) applies to
all actions, including actions under the Fatal Injuries Act and similar
legislation.
(3) Subsection (4) of Section 113B, subsection (1) of this
Section and subsection (3) of Section 113E do not protect a person from
liability if the person is defended in the action by an insurer that is not
licensed to undertake automobile insurance in the Province, unless the insurer
has filed an undertaking to become licensed to undertake automobile insurance
in the Province.
4 Section 113D of
Chapter 231, as enacted by Chapter 1 of the Acts of 2003 (Second Session), is
amended by
(a) adding
"(1)" immediately after the Section number;
(b) adding "or
Section 113E" immediately after "113C" in the first line; and
(c) adding the following
subsections:
(2) Notwithstanding
subsection (1), an insurer shall offer an optional policy or endorsement to
compensate an insured with respect to damages for any award for pain or
suffering or any other non-monetary loss in excess of the amount prescribed in
the regulations or with respect to any other limitation on damages in Section
113E.
(3) The Governor in
Council may make regulations the Governor in Council considers necessary or
advisable to carry out effectively the intent and purpose of subsection (2)
including, without limiting the generality of the foregoing, regulations
respecting all associated costs and charges.
5 Chapter 231 is further
amended by adding immediately after Section 113D the following Section:
113E
(1) In this Section,
(a) "accident" means an accident or other
incident arising directly or indirectly from the use or operation of an
automobile;
(b) "accident claim" means a claim for loss or
damages for bodily injury or death arising from an accident;
(c)
"claimant" means a person injured as a result of an accident;
(d)
"minor injury", with respect to an accident, means
(i) a
sprain,
(ii) a strain, or
(iii) a whiplash-associated disorder
injury,
caused
by that accident that does not result in a serious impairment.
(2) This
Section and any regulations made pursuant to or with respect to this Section
applies to any accident claim with respect to an accident that occurs on or
after the twenty-eighth day of April, 2010.
(3) In an accident claim, the
amount recoverable as damages for non-monetary loss of the claimant for a minor
injury must be calculated or otherwise determined in accordance with the
regulations.
(4) In an accident claim, a judge shall, on motion made
before trial with the consent of the parties or in accordance with an order of
a judge who conducts a pre-trial conference, determine, for the purpose of
subsection (3), whether the claimant has suffered a minor injury.
(5) The
determination of a judge on a motion under subsection (4) is binding on the
parties at the trial.
(6) Where no motion is made under subsection (4),
the judge shall determine for the purpose of this Section whether the claimant
has suffered a minor injury.
(7) The Governor in Council may make
regulations
(a) providing for the classification of, or categories of,
minor injuries;
(b) providing for the assessment of injuries including,
without limiting the generality of the foregoing, regulations establishing or
adopting guidelines, best practices or other methods for assessing whether an
injury is or is not a minor injury;
(c) governing damages, including the amounts
of or limits on damages, for non-monetary loss for minor injuries;
(d)
providing for or otherwise setting out circumstances under which a minor injury
to which this Section would otherwise apply is exempt from the application of
this Section;
(e) governing the application of this Section in respect of
injuries arising out of an accident if the injuries consist of a combination of
minor injuries to which this Section applies and injuries to which this Section
does not apply;
(f) providing for or otherwise setting out circumstances
under which an injury that results in a serious impairment is a minor injury;
(g)
respecting the onus of proof relating to minor injuries;
(h) respecting
any matter or thing that the Governor in Council considers necessary or
advisable to carry out effectively the intent and purpose of this Section.
(8)
A regulation made pursuant to subsection (7) may be made retroactive in its
effect to a day not earlier than the day that this Section has effect.
(9)
The exercise by the Governor in Council of the authority contained in
subsection (7) is regulations within the meaning of the Regulations Act.
6 Subsection 159(1) of
Chapter 231, as enacted by Chapter 1 of the Acts of 2003 (Second Session), is
amended by adding immediately after clause (k) the following clauses:
(ka)
establishing or governing a system or process for the examination, assessment
and treatment or rehabilitation of bodily injuries suffered by an insured as a
result of an accident as defined in Section 113E in respect of which benefits
are payable under Section 140;
(kb) governing the payment of any fees,
levies or other assessments in respect of a system or process established under
clause (ka) including, without limitation, respecting
(i) the
amount of the fees, levies or other assessments or the manner in which and by
whom any of those amounts are to be determined, and
(ii) to whom and by
whom the fees, levies or other assessments are to be paid;
7 (1) This Act, except
clauses 4(a) and (c), has effect on and after July 1, 2010.
(2) Clauses 4(a) and (c) come into force on such
day as the Governor in Council orders and declares by proclamation.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2010 Crown in right of Nova Scotia. Created April 28, 2010. Send comments to legc.office@gov.nsca.