Stewart McKelvey

INSURANCE LEGISLATION IN ATLANTIC CANADA Atlantic Canadian courts are fairly conservative in awarding non-pecuniary general damages. However, it is not uncommon for non-pecuniary damages to reach $150,000 to $200,000 in cases with severe, ongoing injuries, as recent decisions from courts in Atlantic Canada demonstrate: Corbett v. Wawanesa Mutual Insurance Co., 2011 NBQB 114; Vogler v. Szendroi, 2010 NSSC 390; Driscoll v. Morgan, 2005 NLTD 216. The leading Newfoundland and Labrador author- ity on damages for whiplash injuries, Gosse v. CBS Taxi Ltd., 2000 NFCA 16, held that the range of gen- eral damages for soft tissue, whiplash and other minor back injuries in that province was $20,000 to $80,000. Similar ranges apply in the other Atlantic Provinces for this type of injury claim. When pecuniary damages are factored in, the most severe cases could easily exceed the minimum coverage for third party liability in the Atlantic Provinces. ACCIDENT BENEFITS Accident benefits, or Section B coverage, are manda- tory in Prince Edward Island, Nova Scotia, and New Brunswick, with the latter having the most robust compensation scheme. In Newfoundland and Lab- rador, accident benefits are optional. This coverage is secondary to any other plan covering the insured. In Prince Edward Island and Nova Scotia, insur- ers must provide coverage as set out in Schedule B to the Act, which presently provides medical benefits up to $25,000, a death benefit of up to $10,000 and a weekly indemnity for income loss of up to $140 per week for up to 104 weeks if the insured is dis- abled from his or her own occupation, and there- after only if disabled from any occupation. Insurers in New Brunswick must provide med- ical benefits up to $50,000, a death benefit of up to $50,000 and a weekly indemnity of up to $250 per week for up to 104 weeks if the insured is disabled from his or her own occupation, and thereafter only if disabled from any occupation. In Newfoundland and Labrador, where benefits are not mandatory, the 2005 Automobile Insurance Review Report prepared by the province's Public Utilities Board noted that approximately 75 per cent of automobile insurance purchasers have opted to buy the coverage. Accident benefits encourage early access to treat- ment by providing immediate reimbursement for certain expenses, and could serve to carry a por- tion of the cost that would normally fall under third party liability coverage. 6 FALL 2011 DOING BUSINESS IN ATLANTIC CANADA UNINSURED OR UNDERINSURED MOTORIST PROTECTION Coverage for uninsured or underinsured motorists (Section D coverage) is $200,000 in all Atlantic prov- inces except Nova Scotia, where coverage extends to $500,000. The operation of the "one per cent rule" continues to render Section D coverage a last resort. If an in- sured chooses to pursue both a joint tortfeasor and an uninsured motorist, Section D insurers are liable only if the insured is unsuccessful in recovering from the joint tortfeasor. Double recovery is not permitted; an insured cannot claim under Section D and then pursue a joint tortfeasor. A recent Ontario Court of Appeal case, Loftus v. Robertson, 2009 ONCA 618, marked a departure from the one per cent rule, finding that an injured insured need not sue all potential joint tortfeasors in order to access Section D. Loftus has not yet been con- sidered by any court in Atlantic Canada. CAP ON GENERAL DAMAGES FOR PAIN AND SUFFERING All Atlantic provinces have legislation affecting the amount of general damages for pain and suffering aris- ing out of motor vehicle accidents, in an attempt to control increasing insurance premiums. Prince Edward Island, New Brunswick and Nova Scotia have instituted "caps" on damages for minor in- juries. In Prince Edward Island, there is a cap of $2,500 on general damages for "minor personal injury" applic- able to accidents occurring on or after April 1, 2004. "Minor personal injury" means an injury that does not result in permanent serious disfigurement, or the permanent serious impairment of an important bodily function caused by a continuing physical injury. New Brunswick also places a $2,500 cap on dam- ages for non-pecuniary loss for "minor personal in- jury", and applies the same definition as Prince Ed- ward Island. This cap applies to accidents occurring on or after July 1, 2003. Nova Scotia's legislated cap was increased to $7,500 from $2,500 as of July 1, 2010, and applies to motor vehicle accidents occurring on or after April 28, 2010. The cap will be indexed to inflation and increased an- nually. There is no longer a presumption in Nova Scotia that an injury resulting from a motor vehicle accident is "minor". The definition of minor injury includes only sprains, strains or whiplash-associated disorder injur- ies caused by the accident, that do not result in serious impairment. The Nova Scotia Court of Appeal has up-

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