Supreme Court dismisses NS injury cap appeal

The Supreme Court of Canada has dismissed leave to appeal a December 2009 decision by the Nova Scotia Court of Appeal which confirmed the constitutionality of the province’s minor injury cap.

In April, Nova Scotia Finance Minister Graham Steele announced that the cap would be tripled -  from $2,500 to $7,500. (See the ILSTV news story from that day by clicking here.)

The summary of the case from the Supreme Court follows: Charter of Rights – Right to equality – Discrimination – Applicants suffering injuries as a result of three separate motor vehicles accidents – Whether s. 113B(1)(a) of the Insurance Act, R.S.N.S. 1989, c.231, as amended, discriminates against the Applicants on the basis of physical disability and sex in capping their potential claims for non-pecuniary loss at $2,500 – Whether the Court of Appeal erred in interpreting the overall legislative intent of the Act and in finding the Automobile Insurance Tort Recovery Limitation Regulations, N.S. Reg. 196/2003 intra vires – Whether the Court of Appeal erred in improperly constructing a comparator group by placing undue emphasis on the contextual background of the applicant and/ or on expert testimony.

MacDonald was involved in a motor vehicle accident on November 20, 2003 and sustained soft tissue injuries to her neck, shoulders and back. Her insurer offered a settlement that included the capped amount of $2,500 for pain and suffering. Gionet was involved in an accident on December 17, 2003 in which she sustained soft tissue injuries to her knee and back. She accepted her insurer’s offer of settlement of $3,000 in total for non-pecuniary loss and for loss of wages. McKinnon suffered serious post- traumatic stress disorder after she witnessed her father being hit by a car on November 25, 2003. All three plaintiffs applied to challenge amendments to the Insurance Act that “capped” damages for “minor” injuries, as defined in the legislation, at $2,500 for discrimination on the basis of physical disability and sex. They also contended that the Regulations promulgated under the Insurance Act were ultra vires.  

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