Time to Turn the Tide: A Case for Injured Plaintiffs

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Introduction:

The measure of damages in tort is supposed to be one that places the injured plaintiff back in the position he or she would have been in, had the negligence not occurred.  This is certainly not the case in Alberta for victims of negligent or impaired drivers.  In fact, the best one can hope for is “decent” or “moderate” compensation, but only after several obstacles are overcome.  Much more work and effort is required of plaintiffs and their counsel nowadays in order to ensure that even these watered -down results are achieved. The situation in Alberta is clearly an anti-plaintiff one.  For decades, changes are made in this province, either intentionally or otherwise, that result in punishing plaintiff/ victims or restricting their rights.  It is long overdue that changes are made to create a more level playing field– one that is more in line with the principles of negligence law.

The Evidence:

An entire book can be written on this subject, but I have decided to narrow it done to a Top 10 List, in no particular order.  This is certainly not an exhaustive list, but encompasses some of the most common obstacles which practitioners representing accident victims must often deal with daily in practice:

1. The Motor Vehicle Accident Claims Act (MVACA)

The MVACA was enacted to compensate victims of hit-and-runs or defendant owners and operators without insurance. Here is the problem: it has remained at a $200,000 limit for decades. There has been absolutely no adjustment for inflation. For example, five people in a car that sustain catastrophic injuries after being hit head -on by a drunk driver (without insurance) have to divide up the $200,000 maximum between the five of them even if they are all in wheelchairs for the rest of their lives. It is an abomination, frankly, that these limits have not been increased. The fact that the limits have not been increased defies logic and clearly goes against innocent plaintiffs, particularly the catastrophically injured.

2. SEF 44

The SEF 44 Family Endorsement is non-mandatory coverage designed to cover situations of underinsured or uninsured motorists – unfortunately, it rarely ever does. What insurers who sell such extra coverage do not tell you is that the SEF 44 is useless unless all the stars align. For example, the bad driver must have insurance that is LESS than your SEF 44 coverage and it will only cover the shortfall. So, in a catastrophic crash, where both vehicles have $1 million in coverage and the SEF 44 is also $1 million, there is NO additional coverage whatsoever. If it is $2 million endorsement, only the shortfall or difference is accessible. Lifelong care for the catastrophically injured plaintiff often ends up being the responsibility of taxpayers for such things as 24 hour homecare and not the tortfeasor’s or his insurer. In all my years of practice, representing hundreds upon hundreds of victims, I have very rarely seen the SEF 44 being accessible. This holds true even in the most catastrophic of cases, particularly cases involving multiple plaintiffs.

3. The Minor Injury Regulation Deeming Provision and The DTPR Regulations: Strong Incentive for “Minor Injury” Findings

Pursuant to the Minor Injury Regulation (Alberta Regulation 123/2004) (MIR), if a claimant has a sprain, strain or whiplash disorder (Grade 1 or 2), they are considered to have “minor” injuries which are subject to a $4000 cap. This is for ALL such injuries combined (s.6) – neck, back, shoulders, etc. When this Regulation came out on October 1, 2004, it dramatically changed personal injury law in this province. It adversely impacted about 90% of automobile injury victims and, undoubtedly, stopped numerous claims from being pursued altogether. It was, and still is, rather devastating if you are a victim.

Inextricably linked to the MIR is the Diagnostic and Treatment Protocols Regulation (Alberta Regulation 116/2014). Plaintiffs must treat within the Protocols if they sustain soft tissue injuries. That means you must undertake a combined 21 treatments (physio, chiro, etc) which MUST be done in the first 90 days post-accident for your soft tissue injury. You must take time off of work and visit your local chiropractor or physiotherapist 21 times in 90 days – not 90 business days, 90 calendar days. If you fail to do so, for example, and only attend 18 times, your injury is deemed to be “minor” pursuant to section 5 (1) of the MIR.

What makes matters worse is that a (whiplash) WAD 1 or WAD II injury is considered a “minor” injury. A WAD III is not. An injured plaintiff with the latter, more serious injury, is NOT entitled to ANY free visits, let alone 21. Strangely, if you have a “minor” injury, the insurer must pay directly to your treatment provider the cost of 21 sessions without question. If your injury is diagnosed as “non-minor”, the insurer is not obliged to pay directly until you do and then you have to wait a month or more to hopefully get reimbursed. You would think it would be the exact opposite. It is no coincidence that when I first started practicing, I would see numerous “WAD III” cases, now, they are extremely rare.

The foregoing is the clearest evidence of a desire in Alberta’s Insurance laws to undercompensate and even punish plaintiffs.

4. The Certified Medical Examination (CME)

Never fear plaintiffs – if you think your injury is non-minor, you can, at your own expense, attend with a Certified Examiner who will provide prima facie evidence as to whether the injury is minor or non-minor. On paper this looks good; in reality, it is another anti-plaintiff measure. Some time ago, I conducted a study on behalf of ACTLA and presented a paper on this topic called “The Certified Medical Examination in the Minor Injury Regulation of Alberta: Just Another Defence Examination in Disguise”. Here were some of the key findings:

  1. Virtually 100% of CMEs are initiated by insurers/ defendants because the entire process rarely, if ever, helps the plaintiff’s case.
  2. The MIR dictates that the plaintiff must attend a CME and that failure to do so results in an automatic finding of a minor injury.
  3. From a large sample size of CME’s, we found more than 85% of examinations have a finding of ‘non-minor’
  4. A very large percentage of the examiners on the CME roster are also the same doctors conducting medical examinations for insurers in accident benefits cases and appearing at trial for defendants

It is hard to argue that the CME process is anything but a measure that was designed to make a finding of “minor injury” much more likely. The fact that plaintiff counsel almost never initiate these examinations speaks volumes.

5. Fatal Accidents Act (FAA)

If you think that only plaintiffs sustaining relatively minor injuries have a target on their back, think again. The powerful insurance lobby has been successful in seriously and unfairly restricting fatality claims. The FAA places the following prices on human life pursuant to section 8(2): $82,000 to the surviving spouse; $82,000 to the surviving parent (if there are 2, they have to share it, of course); $49,000 for each child. Why do these limits even exist?  Thankfully, plaintiff counsel can and do still argue for common law heads of damages but this is always a significant uphill climb. It is long overdue that amendments be made that focus on victims, not the people that made them victims.

6. Insurance Act Amendments, Collateral Benefits and Net Wage Loss

Section 570 of the Insurance Act (RSA 200 c. I-3) contains a heading that says it all: “Reductions in automobile accident claims awards”. This allows tortfeasors and their insurers to avoid responsibility:

  1. Net wage loss is now payable instead of gross
  2. Collateral benefits are now deducted from settlements, such as employer benefits and CPP and EI

These measures further restrict compensation to plaintiffs and are another gift given to insurers negligent drivers that they represent.

7. Section B Disability Benefits

In Alberta, every automobile insurance policy carries mandatory accident benefits, which is a good thing. What is not a good thing, is that such benefits are difficult to access and are way too low. As an example, whether a plaintiff has injuries that result in a month of lost wages or sustains catastrophic injuries resulting in years off the job, the absolute most your own insurer will be paying in income replacement is $1600 per month. It is no wonder why so many plaintiffs end up on AISH, EI or social assistance while cases slowly move through the courts.

8. The Powerful and Relentless Insurance Lobby

Notwithstanding all the gifts given to them, the powerful insurance industry never stops. A mere 4 or 5 meaningful cases since 2004 have managed to get to trial on issues concerning the MIR and DTPR. Courts have found that people with very serious and long-lasting injuries, such as chronic pain impacting daily activities and TMJ Dysfunction are not part of the $4000 cap, which should be no surprise. However, the insurance lobby continues to ask for more gifts at the expense of victims and has been lobbying the government to try and subsume such major injuries within the definition of the $4000 cap.

9. The Alberta Rules of Court

Under Rule 1.2 (1), the Rules are supposed to facilitate “the quickest means of resolving a claim at the least expense” and to provide an “effective and efficient” system of remedies, orders and judgements. In practice, the direct opposite holds true: cases are stalled and it takes years to get to trial after a plaintiff is made to attend doctors appointments, Questionings etc. as can be seen by the fact that so few cases have made it to trial since 2004, the year the cap was introduced. A Plaintiff wanting his or her day in court will have to wait a very, very, long time while trying to cope with the financial impact of their injuries. The onus is on the plaintiff (Rule 4.33) to move matters along with little or no obligations on the defence. Procedural orders are cumbersome and rarely followed and insurers can delay matters significantly if they so choose, and often do

10. Court Costs

In the 1990s court costs were $1000 for filing a statement of claim and it was automatic. Three decades later, court costs are 75% of that for cases under $50,000. In the vast majority of injury cases, court costs are awarded to that plaintiff, not the defendant. Plaintiffs are also punished by having to pay $250 (up from $200) for the simple privilege of suing for their injuries. How court costs (other than an additional item “review of opposing documents”) have not gone up in two decades while court fees are raised is concerning and is another development that harms plaintiffs.

Conclusion

As can be seen from the foregoing, whether by chance or by design, insurance litigation in Alberta not only places the onus on Plaintiffs to prove their case, but also imposes numerous additional hurdles, caps and limits to compensation and treatment. Stagnant laws and onerous new ones result in punishing victims, rather than those who made them victims. It is long overdue for changes to be made that, for once, actually favor victims instead of negligent or impaired drivers and their insurers.

Norm Assiff

Norm Assiff

Norm was awarded the Alberta Civil Trial Lawyers Association (ACTLA) President's Award for 2012--awarded to a member of the Alberta bar who has distinguished himself or herself by his or her contribution to the profession or the community, the advancement of the law or their service to ACTLA. He has appeared at all levels of court in Alberta (Provincial Court, Queen's Bench and the Alberta Court of Appeal) as well as the Supreme Court of British Columbia and the Federal Court of Appeal.

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