SR Vol 24 No 5, October 2006 - Nova Scotia Barristers' Society

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Why We Should CareIt is pretty clear that the principle of equality was not a majorconsideration by the Nova Scotia Provincial Governmentwhen it passed the Automobile Insurance Reform Act. The Act,which was passed on October 30, 2003, establishes a “cap” on nonmonetarylosses for automobile accident victims suffering “minorinjuries”. In effect, Nova Scotia motor vehicle accident victims whosuffer certain types of pain and discomfort are limited to generaldamages in the amount of $2500, while others who suffer differentinjuries or suffer injuries from different types of accidents (e.g.slip and fall accidents, medical negligence, train accidents, etc.) arecompensated in full. Why the government decided to discriminateagainst certain Nova Scotians is not entirely clear, however, what isclear is that the Legislation discriminates against certain accidentvictims and has decimated the rights of some of the most vulnerablemembers of our community.Why care about the Provincial Government’s attack on the rights ofaccident victims? After all, the Tories say the cap only affects a fewpeople with “minor injuries”. Further, the Government argues, thecap was needed to make insurers profitable, which inevitably has ledto lower insurance premiums for consumers.Let me tell you why all members of the Bar should care.Sixteen months ago I met with Melissa Gionet. Melissa, a youngwoman in her early 20’s, was involved in a car crash in Decemberof 2003 which was not her fault. Melissa, however, who was sevenmonths pregnantat the time of the Barry Masonaccident, was left Presse Masonwith chronic lowback pain following the accident. She was unable to return to work.Melissa could not take care of her new child in the most basic ways -holding, lifting, feeding or bathing her daughter all produced severelow back pain. Melissa had to rely on her parents to help her lookafter her baby.Melissa was approached by an insurance adjuster in January of2005. According to the adjuster her claim was capped under the Act.While the cap was $2500, that amount, according to the adjuster,was reserved for only the most serious injuries. Melissa’s injuries, accordingto the adjuster, were not that serious. Therefore the insurerwas prepared to offer $1900 – take it or leave it.Melissa, without the benefit of legal advice – she thought it wouldcost too much to hire a lawyer and believed the adjuster – acceptedthe offer and signed a release.Today, as a result of her loss of income Melissa has been forced togive up her apartment and move in with her parents. She is still unableto return to her previous work on a full- time basis.Melissa, once an independent young woman, is now left with chronicdisabling low back pain and is dependent on her parents and family18 The Society Record
to look after her and her child. Despite her life altering losses, she hasreceived compensation in the amount of $1900 for general damages.I hear Melissa’s story re-told by accident victims almost on a dailybasis. Vanessa, a woman in her early 20’s who sustained a serious kneeinjury in a car crash (which was not her fault) was offered $1500 bythe insurer to settle her case. Vanessa,according to her orthopedic surgeon,will likely need knee replacementsurgery in the future. Helen, a 62-year-old woman who sustained severeneck and shoulder injuries in a motorvehicle accident following a car crash(which was not her fault) has notreturned to work, and according toher physicians will not be able to returnto work. Every aspect of her lifehas been negatively affected. Helen’sclaim, according to the adjuster,falls within the cap. These are just a few on the many Nova Scotianswhose rights have been decimated by the cap.But insurers were on the brink of bankruptcy in 2003 and were goingto leave the province if substantial reforms (by the way the term “reforms”is always used as a euphemism in this context for taking awayinnocent victims rights) were not implemented, therefore the cap wasnecessary, right? If these “reforms” were not implemented, premiumswould skyrocket and no one would be able to afford auto insurance.However the insurance industry’s own figures prove the opposite.The Insurance Industry turned a profit of over $2 billion dollars in2003 (a record profit at the time), $4.2 billion dollars in 2004, followedby $6.2 billion dollars in 2005. In Nova Scotia, dealing simplywith private passenger auto insurance and based on IBC’s greenbook figures, insurers have earned profits in excess of $450 milliondollars over the past four years. Oh yeah, and premiums – they havedropped a mere 8 per cent between 2003 and 2005.The cap has led to record windfall profits for insurers at the expenseof accident victims in Nova Scotia. Consumers have not benefited.The Tories have decided to turn a blind eye to these facts, repeatedlysaying their “reforms are working”. This is true, if your purpose isto gauge consumers, take away legal rights of accident victims, andpermit insurers to make obscene profits. But for accident victims thelegislation has been devastating and that is why, in my view, the BarSociety needs to get involved.“...I know, up on top youare seeing great sights, Butdown at the bottom we, too,should have some rights.”applications and three case management conferences, we are now ina position to move forward with the application to quash the cap inthe near future.The Government of Nova Scotia turned its back on accident victimsby implementing and maintaining its stand on the cap. In theprocess, the rights of some of themost vulnerable members of ourDr. Seuss, U.S. author,said by a plain turtle named Mack, Yertle the Turtleprovince, i.e. accident victims, havebeen sacrificed. But who will standup for accident victims?It has been said many times that TheBarristers’ Society’s primary duty isto the public at large. In my opinion,the Society owes a duty to accidentvictims to get involved in this case.That involvement could take variousforms – from actively intervening inthe application to supporting the application through funding for theretention of experts, or both. However, sitting on the sidelines waitingfor this issue to be resolved is not an option. Like Mack the Turtle, it istime for us to speak out, Raise the Bar, and protect the rights of NovaScotians who have been abandoned by the Government. As accidentscan happen to anyone, you never know, it may be your rights, or therights of someone you love, that you may be protecting!Mr. Mason is a partner with Presse Mason, is the current President of the Atlantic ProvincesTrial Lawyers Association, and lead counsel in the constitutional challenge of theAuto Insurance Reform Act, Hartling et al. v. Attorney General of Nova Scotia.We’ve MovedI have been retained by three accident victims and the CoalitionAgainst No Fault Insurance to challenge the “minor injury cap” setout in the Auto Insurance Reform Act. The cap is being challengedprimarily on the ground that the legislation discriminates againstcertain individuals suffering distinct types of pain and is therefore aviolation of my clients’ section 15 Charter equality rights. There isa further argument that the legislation places significant hurdles foraccident victims to overcome, thereby denying their right of accessto justice - contrary to the Charter. Certain Regulations passed pursuantto the Act are being challenged on an ultra vires basis (i.e. thatthe Regulations are inconsistent with the Act).The application has been filed, and following three interlocutoryYour one-stop shop has moved. So what’s different?Nothing. We’ll still pickup and deliver any order while offeringthe same great print and legal copy service you’ve come to expect.E-mail us at info@fusionprint.ca for a pickup or call 442 5031.FuSion PriNt + imagiNg26 Crane Lake DriveHalifax, Nova Scotia B3S 1B4t 902 442 5031 f 902 420 9357e info@fusionprint.ca w fusionprint.caOctober 2006 19
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SR Vol 24 No 5, October 2006 - Nova Scotia Barristers' Society

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