Canadian Lawyer - sample

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 8 49 "The easy solution is to cut benefits, but it's not the right solution." In Alberta, the last tort reform was implemented in 2004 and the cap for minor injury claims set at $4,000, says James Cuming, managing partner of Cuming & Gillespie in Calgary. With annual increases for inflation, the cap is now $5,080, he says. Prior to 2004, Alberta had an open tort system with "no restrictions whatsoever," consistent with other jurisdictions, Cuming says. Following the implementation of the cap for minor injur- ies, "approximately 85 per cent of claims fell into the cap and were removed from the system without any litigation being pursued," says Cuming, owing to the cost of litigation. Acci- dents benefits have given individual plaintiffs direct access to treatment and payment for minor injuries, he says. Alberta is currently reviewing its minor injury regulations in a process that began a few years ago, and "there is extreme pressure from insurers to modify the cap and make it more restrictive by definition, as opposed to financially," Cuming says. "It appears the goal of the insurers would be to exclude the psychiatric injuries, TMJ [temporomandibular joint] injuries and chronic pain arising from soft-tissue whiplash-type injur- ies." He anticipates the province's regulations will be amended in the not-distant future. Raymond Wagner's law firm, Wagners, handles personal injury cases in Nova Scotia as well as Prince Edward Island and New Brunswick. The Maritime provinces have seen two sets of caps for minor injury claims, the first in 2003. A "more liberal regime" was introduced in Nova Scotia in 2010, in New Bruns- wick in 2013 and in P.E.I. in 2014, Wagner says, with the minor injury claim cap set at $7,500 (now higher with inflation). Few of these minor injury cases make it to court, Wagner adds, and they are usually settled through settlement confer- ences, mediations and straight negotiations with insurance adjusters. Although it's not a big jump distance-wise from Prince Edward Island to Newfoundland, that province has a rather different insurance scheme for motor vehicle accidents than do its Atlantic neighbours. But while there are currently no caps on claims in Newfoundland and Labrador, that may be about to change. The government there has reportedly asked its Public Util- ities Board to review all aspects of its motor vehicles insurance program, says Ernest Gittens, senior partner in Gittens & Associates in St. John's. "Are the rates appropriate? Do we need to rein in the payment of injury awards to collision victims?" Gittens says these questions appear to have been prompted by the taxi industry, which claims its premiums have gone up substantially. Back in 2004-2005, he says, when these same questions arose, the insurance industry could convince the other Atlantic provinces that it was necessary for them to put caps on claims for the survival of the industry. What followed in those prov- inces was the cap of $7,500 for a minor injury. But in New- foundland and Labrador, during the premiership of Danny Williams, the government decided to instead go with a $2,500 car insurance deductible. Benefits paid in motor vehicle accidents have ranged from $5,000 to $10,000 of compensation for minor injuries to $30,000 to $40,000 for injuries that require more medical treat- ment and last for years. "They'll be the ones most affected by the proposed cap," Gittens says. Like other plaintiff-side personal injury lawyers interviewed for this report, Gittens is concerned about the impact of caps on plaintiffs, and the profit margins of insurance companies. In 2015, he says, there were about 50 insurers in Newfound- land and Labrador, and the premiums they charged drivers amounted to $417 million to $418 million. About 16 insurers cover most of the premiums, he says, "but it's really only four companies providing 84 per cent of the coverage in the prov- ince. . . . Seventy-seven per cent of the premiums paid was what it took to cover the claims that were made. You end up with the industry making about 23 per cent on the $400-plus million for the industry." On the flip side, he says, there is no organized movement of injured people, and he wonders who will give the Public Util- ities Board information on the impacts on individual claims of capping or increasing the deductible. In Nova Scotia, Wagner notes, the under- and unemployed — "the people on the financial margins of society" — have been most affected by the caps on claims. "They don't have disability [benefit] plans. . . . This is one of those so-called tort reforms that really impact people who can least afford to be further marginalized." What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES ntitled-3 1 2017-11-01 3:58 PM

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