Canadian Lawyer

REGIONAL WRAP-UP ATLANTIC INcREASE TO N.b.'S mINOR INJuRy cAp REcOmmENDED A n automobile insurance work- ing group established by the New Brunswick government is recommending that the current defi- nition of minor personal injury be discarded and replaced with a new — and significantly reworded — one. The eight-member working group is also calling on the government to increase the minor injury cap to as much as $6,000 from its present limit of $2,500. "Without exception, presenters dur- ing the public consultation process commenting on the cap and definition said there must be change," the mem- bers of the working group stated in their 11-page report. "Injuries described by some of the accident victims clearly surpassed what could reasonably be considered a 'minor' personal injury. Yet, these individuals often were told by adjusters and/or insurers that their injuries fell within the definition and, therefore, would not qualify for any more than the $2,500 cap for pain and suffering." The working group's proposed new definition of minor personal injury reads as follows: "A minor personal injury is a sprain or strain or whiplash-associated disorder, or a combination thereof, which results in minor consequences to a per- son's life." "Minor consequences" means that neither the impairments nor the lim- itations resulting from the injury last more than six months and a person sub- stantially retains his or her pre-accident bodily functions, level of activities, and participation in life. Gone from the pro- posed description are any references to "permanent serious disfigurement" or "permanent serious impairment," which dominate the existing definition. Although the mandate of the working group, established in 2010, was to review the current cap and definition applied to Sign on the dotted line — or go to arbitration D espite a long, loud protest from the business community and employment lawyers, Nova Scotia has passed its controversial new legislation mandating arbitration for first contracts. Ironically, the law — intended to enhance labour negotiations — may have widened the rift between unions and management. "The motivation is to help organized labour," says Jack Graham, a partner with McInnes Cooper in Halifax, noting that the new legislation "reduces the uncertainty around first contracts. You can now tell employees there won't be a strike the first time around." The new law, comprehensively entitled an Act to Prevent Unnecessary Labour Disruptions and Protect the Economy, allows either side in a negotiation to opt for arbitration if a contract is not signed in four months. That has employers wor- ried. So much so, notes Eric Durnford, a partner with Ritch Durnford in Halifax, that "there is a very real possibility com- 6 M A RCH 2012 www. CANADIAN Lawyermag.com panies will go elsewhere if a contract can be imposed." The legislation, he adds, has two major downsides. First, it is contrary to free col- lective bargaining. Second, it is likely to divide — not unite — the negotiating par- ties. "When an agreement is imposed you have a serious problem for the relation- ship," says Durnford. "The parties will not take ownership of the agreement. Then the relationship is fractious." Under the legislation, now part of soft tissue injuries caused by vehicle accidents, the group brought for- ward an additional three recom- mendations. These were related to educating claimants injured in a motor vehicle accident, mak- ing funds available to allow acci- dent victims early access to treatment, and conducting an independent review process of auto insurance at least every five years. The report is now in the hands of Justice and Consumer Affairs Minister Marie-Claude Blais. "We must now evaluate the impact mendations brought that the recom- forward by the working group could have on insur- ance premiums charged to consumers," she said in a release, adding that keep- ing insurance accessible and affordable for all New Brunswickers was the gov- ernment's overriding objective. — DONALEE MOULTON donalee@quantumcommunications.ca

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