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Power Sport News, Vol. 12, No. 2, 2008
Suing for Pain and Suffering
By Daryl Brown
Pain and suffering, or more appropriately known, non-pecuniary
damages, refers to money paid by a negligent party to their injured
victims. In 1978, the Supreme Court of Canada ruled the maximum
amount an injured person could receive under this heading was $100,000.
Over time, inflation has increased this to just over $300,000. In
some provinces, legislation caps the lower end of non-pecuniary
damages or even prohibits payment if the injury is not "serious".
In Alberta, where until early February 2008, the Minor Injury
Regulation, Alta. Reg. 123/2004 (the "Regulation"), held a cap
of $4,000 on "minor" injuries such as "strains, sprains"
and "whiplash related disorders (WAD)". Sprains and strains
are stretched or torn muscles, ligaments and tendons. WAD is defined
as any soft tissue injury that is not, "objective, demonstrable,
definable and [exhibiting] clinically relevant neurological signs"
or a "fracture to or a dislocation of the spine". In other
words, injures that would likely be visual through an x-ray or similar
image. To be eligible for more than $4,000 the injured party must
suffer "serious injury" meaning "impairment of a physical
or cognitive function that results in a substantial inability"
prohibiting the victim from performing the "essential tasks"
of employment thus disrupting their "daily living".
In what is being declared a landmark decision, the Court
of Queen's Bench of Alberta, struck down the Regulation in Morrow
v. Zhang, 2008 ABQB 98 ("Morrow"), saying it
violates Canada's Charter of Rights and Freedoms (the "Charter").
Section 15 of the Charter guarantees that, "Every individual
is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or physical
disability." In applying the Charter, the Court decided
the government's lower end cap was unconstitutional because it discriminated
against specific victims of motor vehicle accidents. The Regulation
is now unenforceable and will remain so unless an appellant court
reverses the decision or the government revises the legislation.
The injuries in Morrow did not warrant more than $20,000
for non-pecuniary damages but this did not stop the Alberta government
and the Insurance Bureau of Canada from stepping in to defend corporate
interests. This is significant for other provinces including British
Columbia because in the mid 1990's, the government also began a
move toward capping non-pecuniary damages. The British Columbia
law makers rescinded their decision before passing a lower end cap
but remain free to enact one at any time. It will be interesting
to see if the Alberta decision survives appeal as it could open
the door for other plaintiffs to argue their "minor" injuries
are worthy of larger awards. It might also ensure a low end cap
does not come to British Columbia at a future date.
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