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 47 t's been 40 years since the Supreme Court of Canada released its tril- ogy of rulings that affected the way non-pecuniary damages have been awarded in Canada. Fearing an escal- ation in damages awards, those rul- ings limited the maximum amount of non-pecuniary damages a plaintiff could receive in a civil action. Most jurisdictions in Canada have seen caps placed on claims in motor vehicle accidents, through provincial or territorial insurance legislation. British Columbia has been the last remaining jurisdiction in Canada to operate on a pure tort system, with no caps set on damages except for what the Supreme Court set in its trilogy in 1978, says Ron Nairne, a partner at personal inju- ry firm Giusti Nairne in Vancouver and vice president of the Trial Lawyers Association of British Columbia. But in February, the B.C. government announced it would cap pain and suffering claims for minor injuries in motor vehicle accidents at $5,500, which members of the personal injury plaintiffs' bar in the prov- ince oppose. In Ontario, changes to the Insurance Act in 2016 saw benefits paid to accident victims reduced "dramatically," says Patrick Brown, a partner at McLeish Orlando LLP in Toronto. And elsewhere in Canada, plain- tiff-side lawyers agree that caps on minor injury claims can place undue hardship on plaintiffs and may not consider the effects of minor injuries over time. In British Columbia, the new NDP government's announcement that it will introduce a cap on minor injury claims in automobile accidents was a result of a financial crisis at the Insurance Corpor- ation of British Columbia, a provincial Crown corporation that provides basic auto insurance for British Columbians. In 2014 and 2015, Nairne says, there was a 23-per-cent spike in the motor vehicle accident rate in B.C., which had a negative impact on the bottom line of insurers. The ICBC's loss for this fiscal year is now expected to be $2.2 billion "when only months earlier they had announced an [anticipated] loss of $300 million," says Nairne. The Trial Lawyers Association of B.C. and about 70 health-care providers and individuals opposing the proposed cap have banded together in a coalition called ROAD BC — or Rights Over Arbitrary Decisions for British Columbians. "We're saying have an independent review," Nairne says. The B.C. govern- ment has benefited from the ICBC's revenues, and, he adds, "one of ICBC's more dubious assumptions is that acci- dent rates will continue to increase. "Our fundamental philosophical opposition to what the government has announced is [that] the effect is to shift financial burdens to people who are injured rather than the bad drivers who caused the accident," Nairne says. "That's fundamentally wrong and at odds with the tort system and with what L E G A L R E P O RT \ P E R S O N A L I N J U RY MATTHEW BILLINGTON Capping damages Non-pecuniary damage caps are widely used across Canada, but personal injury lawyers say accident victims are paying the price By Elizabeth Raymer I

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