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Insurance Cap Will Remain in Place in Alberta
The Supreme Court of Canada dismissed (with costs) the appeal in Morrow v. Zhang (33311). The appellate decision concluded this about Alberta’s Minor Injury Regulation at para. 149:
The MIR, when considered with the entire scheme of insurance reforms, does not infringe section 7 or 15 of the Charter. While the legislation does make a distinction on the basis of disability, it is not discriminatory. The legislation, as a whole, responds to the needs and circumstances of those suffering minor soft issue injuries.
Background reading:
- Alberta Courts Uphold Minor Injury Cap in Morrow v. Zhang theCourt.ca August 24, 2009
- Alberta insurance cap unfair to victims, critics argue CBC June 13, 2009
- Auto Report 2009 Legal view on Alberta and Nova Scotia Caps Canadian Insurance May 18, 2009
Hat tip to Field LLP Partner Christine Pratt who shared the news.
The denial of leave wasn’t surprising (to me).
What is clear is that the SCC isn’t yet ready to take on, from first principles, the entire issue of when the Legislatures whether under the Charter or the common law, as now limited by the Charter, can cap, restrict, or even abolish personal injury awards. The least of the reasons, in my view, is that the SCC doesn’t want to revisit the trilogy cap (or any other judicially imposed, common law,restriction on damages awards).
While it could, of course, preface its reasons with a statement to the effect that nothing it says about legislated caps or restrictions should be taken to say anything about validity of judicial restrictions, the reality is that that would be meaningless. First, there’s Dolphin Delivery. Second, there’s Dolphin … anyway, you get my point.
Third? Well, methinks the SCC, right now, isn’t sufficiently interested in attempting to make entirely coherent(or even sufficiently coherent) if that were possible the Canadian common law on damages, or some other aspect of tort law, particulary if doing so would force it to deal with inconsistencies in its own jurisprudence and, perhaps, to concede in one way or another that it’s not now practicable for the SCC to undertake a wholesale cleanup.
But, who knows. I’m just (an occasional) spiller of ink.
Iris Evans is happy
This week the Nova Scotia Court of Appeal denied the plaintiff’s appeal in Hartling v. Nova Scotia over the plaintiff’s constitutional challenge of our minor injury cap.
Seems pretty clear courts across the country generally have little interest in interfering with the legislature’s rights to limit or eliminate the right to restitutio in integrum.