Canadian Lawyer

44 www.canadianlawyermag.com worse for everybody — you don't need to look any further than British Columbia and Ontario for evidence of that. The problem is, that's not a story the insurance company is going to tell." Adam Wagman, senior partner at Howie Sacks and Henry LLP, says every new govern- ment is interested in "solving" the insurance problem. Ontario's Progressive Conservative government, elected in 2018, "seems to have taken a longer-term approach" instead of the traditional tweak or two to appease the insur- ance lobby, which Wagman says is smart. He calls the current insurance product "a Fran- kenstein monster" thanks to governments' penchant to make small changes instead of looking at systemic issues. "One of the things we've stressed over the years is you can't make a change over here to the tort system without understanding there's implications across the board," says Wagman, who is past president of the Ontario Trial Lawyers Association. "The hope is the govern- ment will hear voices from all sides — insur- ance companies have legitimate interests to protect, we all want to pay reasonable rates for insurance, but there's a balance to be struck here. I'm optimistic members of this govern- ment will consider that balance and not just the weight of the insurance lobby when mak- ing decisions." Last year, British Columbia's minor inju- ry cap of $5,500 for pain and suffering came into force, making B.C. the last province in the country to apply a cap on these payouts beyond the Supreme Court of Canada's 1978 trilogy of rulings, which capped awards at $100,000, or $350,000 today indexed to in- flation. The province's Civil Resolution Tribu- LEGAL REPORT PERSONAL INJURY cap, with the usual promise that auto insur- ance rates will fall for drivers — an easy sell on a mandatory product, says Litwiniuk. One of the Alberta government's funda- mental tenets is reducing red tape, claiming businesses and people are over-regulated, but in the case of injury victims' rights and the law, "it seems to be — for whatever reason — a move in the other direction," says Litwini- uk. Advocates such as FAIR Alberta and the Alberta Civil Trial Lawyers Association are working hard to present the case that govern- ment interventions don't make things better for anyone. "More regulation in this regard is actually nal — which was originally created to handle minor legal disputes — also became responsi- ble for hearing most matters relating to car ac- cident claims, including "liability, damages if under $50,000, entitlement to rehabilitation benefits and then crucially all minor injury de- terminations," says John Rice, president of the Trial Lawyers Association of British Columbia and partner at Rice Harbut Elliott LLP. The TLABC has recently launched a chal- lenge to the system, with representative plain- tiffs who would be classified as having minor injuries, the definition of which Rice says of- fends the equality provisions of the Charter protections afforded to all British Columbians. "Standing back, when you compare B.C. to other jurisdictions, we have the most heavy-handed or limiting definition of minor injuries in the country." In theory, someone injured in a car accident should get the same amount in terms of pain and suffering wherever they are in Canada that has a tort system, but, in fact, govern- ment intervention in some jurisdictions has "driven those damages awards considerably higher," says Litwiniuk. Cap aside, Alberta has a good system with very few claims taking up court time and resources. "Most are resolved out of court and get fair compensation in a fair amount of time. We don't have bloat in spending that other juris- dictions do — it seems like lawyers spend a lot more to run claims in B.C. and Ontario, and it ends up costing the insurance more." Wagman agrees, noting that the cost of simply figuring out whether you have a claim in Ontario is insanely high, especial- ly considering the disputes are around the 2004 - minor injury cap introduced 2005-2017 - ongoing uncertainty until courts clarified cap applies only to minor soft tissue injuries of short duration, which has encouraged insurance industry to lobby for expanded definition 2018 - insurance lobby successful in expanding cap to include jaw injuries and other physical and psychological conditions 2019 - new provincial government elected, lobby for further expansion of cap intensifies ALBERTA'S TIMELINE "We don't have bloat in spending [in Alberta] that other jurisdictions do — it seems like lawyers spend a lot more to run claims in B.C. and Ontario." Fred Litwiniuk, Litwiniuk & Co. NATIONAL MOTOR VEHICLE COLLISIONS AND CASUALTIES, 2018 152,847 total injuries 1,922 fatalities, up 3.6% from 2017 9,494 serious injuries, down 6.1% from 2017 28,819 highest number of total injuries (in 25-34 age bracket)

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