Nova Scotia Judge Rules that Injury Lawsuits are Barred From Going to Trial, while Cap Challenge Ongoing

Earlier this month Justice Coady of the Supreme Court of Nova Scotia ruled that car accident injury lawsuits are barred from going to trial while the court challenge in Hartling v. Nova Scotia is ongoing. You can read the decision in Watkins v. Hines by clicking here.

Justice Coady's rationale was that it was a waste of the courts time and resources to have the multiple cases challenging the validity of the $2,500 cap.

The practical result for most people will be that your case will be stalled until the Court of Appeal rules on the Hartling v. Nova Scotia case. The hearing is schedule for October 2009, and we should get a decision as an early Christmas Gift (wishful thinking), or early in the new year.

This is an exception -- an injured person can take his or her case to trial, as long as he or she is not challenging the validity of the $2,500 Cap. There are cases that will fit into the "grey area", which it would be risky to go to court as you could get stuck with the $2,500 Cap, even if it was later overturned by the Court of Appeal. The best advice for most people is to hurry up and wait.

Alberta Court of Appeal Reinstates Minor Injury Cap

Yesterday afternoon the Alberta Court of Appeal released it's long-awaited decision on the validity of Alberta's Minor Injury Cap. The case is Morrow  v. Zhang, [2009] ABCA 215 and you can download a PDF copy by clicking here.

The 3-judge panel overturned the trial judge and found that Alberta's $4,000 cap on "minor injuries" did not violate the injured peoples' constitutional rights. The $4,000 cap is now back in Alberta. The Judges held the law did not discriminate against injured people because when the cap was put in place, the government also brought in enhanced no fault-benefits (increased money to pay for treatment, phyiotherapy,etc). The Court held there was a trade-off -- people lost the right to compensation, but at the same time there were given increase private medical benefits (called accident benefits). As I will discuss below this "trade-off" is a key difference between the situation in Alberta and what happened in Nova Scotia, New Brunswick and PEI. When the $2,500 cap was imposed in the Maritimes there was no increase in accident benefits. There was no trade-off was happened in Alberta. This will be an important issue during the appeal of Hartling v. Nova Scotia.

The Nova Scotia Case (Hartling et al v. Nova Scotia) is scheduled to go to the Nova Scotia Court of Appeal in October 2009. I expect the Court of Appeal would release its decision sometime in the first quarter of 2010

What does Morrow v. Zhangmean for Nova Scotians who are subject to our province's $2,500 cap on "minor injuries"? There are a couple of important point that jumped out at me on my first reading of the case:

1. Bad News: Deference given to trial judge's decision that there was no historical discrimination against people suffering from soft-tissue injuries from car accidents

The Alberta Court of Appeal upheldthe Alberta trial judge's finding that people who suffered from soft tissue injuries were a group of people in our society which has suffered from historical stereotyping and disadvantage. This is called "giving deference" to the trial judge and means that the Court of Appeal believed the trial judge was in the best position to make this decision and therefore they will respect his finding. The giving of deference to the trial judge on this point is bad news for the injured people's case in Hartling v. Nova Scotia.

On this issue of historical stereotying / disadvantage, the Nova Scotia trial judge reached the opposite decision as the Alberta trial judge in Morrow v. Zhang, even though they were presented with much of the same evidence. Justice Goodfellow found that there was no historical stereotyping or disadvantage. This is why the injured people lost the case in Nova Scotia.

In order for the Appeal to be successful in Nova Scotia, the injured people are going to have to convince the Nova Scotia Court of Appeal that they should over-ruleJustice Goodfellow's finding that there was no historical stereotyping or disadvantage. To do this they would have to go against the Alberta Court of Appeal's decision that the trial judge should be given "deference" on the finding of whether there was historical disadvantage or stereotyping. To me, getting the Court of Appeal to over-turn Justice Goodfellow's finding of no historical disadvantage and stereotyping, is the biggest hurdle for the injured people and their lawyers in the Hartling v. Nova Scotia Appeal. In my mind, the Alberta Court of Appeal decision has now made this hurdle even larger.

2. Good News. Unlike Alberta, there was no increase in accident benefits when the $2,500 cap was brought into Nova Scotia, New Brunswick and PEI.  However, from the perspective of injured people, the news is not all bad from the Morrow v. Zhang decision. The key reason the Alberta Court of Appeal held there was no discrimination (and reinstated the Cap) was the fact that when the government imposed the $4000 cap, they also brough in a mandatory increase in no-fault accident benefits for treatment and medical expenses. There was a trade-off. The good news for the injured people in Hartling is that there was no such trade-off in Nova Scotia. When the cap was imposed there was no corresponding increase in no-fault accident benefits. This is a very important difference between Morrow v Zhang and Hartling v Nova Scotia.

In conclusion, if the Nova Scotia Court of Appeal over-rules Justice Goodfellow and finds there was historical discrimination against car accident victims, then there is a very good chance that the Court of Appeal will find there was discrimination (and overturn the $2,500 cap) on the basis that there was no trade-off of rights for enhanced no-fault benefits, as was the case in Alberta.

Judge Rules Injury Settlement Does Not Impact Injured Person's Ongoing Right to Section B Medical and Rehabilitation Benefits

In a Court Decision released earlier this month, Justice Beveridge of the Nova Scotia Supreme Court held that a woman's settlement of her injury claim had no bearing on her right to ongoing benefits from her Section B Insurer. The case was Humphrey v. Portage La Prarie Insurance.

Essentially, the insurance company was trying to limit its obligation to pay medical and rehabilitation expenses submitted by the Ms. Humphrey. Under the terms of the standard automobile policy in Nova Scotia and Prince Edward Island, Auto Insurers have to pay up to a maximum of $25,000 for medical and rehabilitation expenses related to injuries suffered in a car accident

This case represents a victory for injured persons and automobile insurance policyholders in Nova Scotia.

Nova Scotia Court refuses to set aside $1,500 settlement reached 2 months after injury, without legal advice

This case is a caution to people who choose to settle a personal injury claims quickly, without consulting a lawyer. In Richmond v. Mater, Ms. Richmond suffered injured in a car accident and  settled her case for $1,500 two months after the accident. She did not consult a lawyer. She soon realized that her injuries were more serious than she had thought they were. She then hired a lawyer and tried to get the court to set aside the Release so she could seek more compensation.

The trial judge declined to set-aside the Release, stating that she believed Ms.Richmond knew what she was doing. She had experience with personal injury settlements as she had made other claims in the past.

As a general rule, you should not settle a personal injury case until you know if you will be left with permanent problems or symptoms. This can take up to two years in some cases. While every case is unique, I cannot think any situation where it is in the injured person's best interests to settle a personal injury claim two months after being injured.

Ontario Court rules Injured person must disclose information and pictures from his "private" Facebook Account

On February 20, 2009, a judge in the Ontario Supreme Court of Justice ruled that a person involved in a personal injury lawsuit had to provide the lawyers for the insurance company with copies of in infomation and photographs on his "private" Facebook account.

The case is Leduc v. Roman, [2009] and you can read it by clicking here. Mr. Leduc was injured in a car accident personal injury case and the request for the Facebook information came during the discovery phase of the case.

The judge noted that lawyers representing injured persons should advise them of the obligation to disclose electronic information and photographs from social networking sites like Facebook and MySpace or other online sites such as blogs, message boards, etc.

Insurance companies what this information to see if the injured person is doing things they say the can't do. In other words is the person as disabled as they say they are. People involved in lawsuit should not discuss the case online or in social networking websites as this information is not private. In particular you should never discuss conversations you have had with your lawyer -- this applies whether you are the injured person who has brough the lawsuit (the Plaintiff) or if you are the person who is being sued (the Defendant).

At the present time, no judge has ordered the production of Facebook information in Nova Scotia, Prince Edward Island and New Brunswick; however, it is highly likely that judges in these provinces would follow the Leduc v. Roman and order the injured person to produce copies of this type of information.