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Read Issue Seven of
The Quill
BOYNECLARKE LLP
Personal Injury Newsletter
* Pedestrians -
Know Your Rights
* Government commits to
improving pedestrian safety
* and more...
read The Quill
Dear Mr. Napier:
Now that we have reached the
official closing of our Personal
Injury Case I would like to thank
you and your staff. At the outset
when my husband and I were
still shaken up and emotionally
fragile, you displayed great
understanding and tact. We
both felt we were dealing with
a warm caring human being.
You and your staff guided us
through the necessary forms
and procedures, efficiently and
expertly. I particularly appre-
ciated being able to email Erin
or Ashley about my concerns
and get a response from them
by email or phone. They were
unfailingly helpful and consid-
erate. I am left with a strong
sense that yours is a happy-
positive office culture.
Last but not least, my husband
and I are very pleased with the
financial settlement you were
able to get for us. Thank-you.
Yours truly,
Suzanne Schuurman
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Breaking News
Alberta Court concludes that the Minor Injury Regulation (MIR) in Alberta breached the Canadian Charter of Rights and Freedoms
Morrow V. Zhang and Pedersen V. Thournout {2008} A.J. No. 125, 2008 ABQB 98
On 8 February, 2008, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen's Bench, concluded in this constitutional challenge by Morrow and Pedersen that the Minor Injury Regulation (MIR) in Alberta breached s. 15(1) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1.
The Plaintiffs, Pearl Morrow and Brea Pedersen, both suffered soft tissue injuries arising out of two separate motor vehicle collisions, and their application was for an assessment of their damages for the injuries they sustained. They also challenged the constitutionality of the Government of Alberta's Minor Injury Regulations which imposed a $4,000 cap on non-pecuniary damages for pain and suffering with respect to minor injuries as defined under those regulations.
Associate Chief Justice Neil Wittman first of all determined the appropriate award of damages for each Plaintiff as though the MIR did not apply, and then considered the constitutionality of the MIR.
In the case of Morrow, her general damages were assessed in the sum of $20,000 and Pedersen's at $15,000. While the cap under s. 6 of the MIR (which restricted the right to sue a tortfeasor for the recovery of damages for pain and suffering to the sum of $4,000) did not violate s. 7 of the Charter, it was contrary to s. 15(1) based on the enumerated ground of disability. That violation could not be justified in a free and democratic society in accordance with s. 1 of the Charter. The appropriate remedy was the nullification of the MIR.
Associate Chief Justice Neil Wittmann concluded that the MIR "sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums."
The Government of Alberta has announced that it will seek a stay of the ruling pending the outcome of an appeal.
As a general overview with regard to motor vehicle insurance in Canada, Manitoba, Quebec and Saskatchewan each have a publicly run pure no-fault regime where accident victims forego the right to sue negligent drivers for their injuries in return for relatively generous first party no-fault benefits. Newfoundland and Labrador, Nova Scotia, Prince Edward Island, New Brunswick, Ontario and Alberta have adopted a threshold no-fault system, which translates in New Brunswick, Prince Edward Island, and Nova Scotia to a cap of $2.500 on recovery for non-pecuniary losses that are tied to a definition of minor injury in the regulations of each Province. British Columbia and the three territories have an add-on no-fault system which provides for a range of first-party no-fault benefits and an unconstrained right to sue negligent third parties for pain and suffering.
The Napier Legal Team, part of the BOYNECLARKE LLP law firm - www.boyneclarke.ns.ca - is located at 33 Alderney Drive, Suite #600, Dartmouth, N.S. Canada B2Y 3Z5 P.O. Box 876
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