Field LLP was recently involved in a precedent setting case of
interest to auto insurers concerning the viability of Certified
Examinations as a way to compel summary determination of
"CAP" injuries. Field LLP represents the Defendant driver
in an action involving a rear-end motor vehicle collision which
occurred November 26, 2004. All medical evidence available
indicated that the Plaintiff's injuries were governed by the
Minor Injury Regulation, Alta. Reg. 123/2004 (the
"MIR"). Stacey Lee-Szott of our offices sought
instructions from the insurer to proceed with an assessment by
Certified Examiner Dr. vanZuiden pursuant to s.8(1) of the MIR.
Following his assessment in January 2010, Dr. vanZuiden concluded
the Plaintiff's injuries were "minor" as defined by
the MIR. The Plaintiff did not obtain or produce any medical
evidence to rebut Dr. vanZuiden's opinion. The Defendant took
the position that an application for summary judgment on the issue
of non-pecuniary damages for the "CAP" amount would be
successful, as Dr. vanZuiden's opinion constituted prima
facie evidence that the Plaintiff's injuries were minor.
Essentially, the application was for a declaration that the
Plaintiff's injuries were indeed "minor".
Catriona Otto of Field LLP argued the special chambers
application before the Honourable Justice Wilkins on behalf of the
Defendant on August 2, 2011 in Lethbridge, Alberta. In response to
the application, the Plaintiff swore an affidavit deposing his
personal belief that his injuries were not "minor", and
that he had suffered a WADIIIinjury resulting in chronic pain. No
medical evidence was proffered by the Plaintiff to support his
personal opinion regarding his condition. Justice Wilkins refused
to accept the Plaintiff's own evidence as to his medical
condition as sufficient to rebut the prima facie evidence
of the Certified Examination. Justice Wilkins did query the basis
for the Court's jurisdiction to declare a Plaintiff's
injuries as "minor" and grant summary judgment on that
basis. Justice Wilkins indicated there was a "missing"
step in the MIR and that nowhere does it give the Court the power
to make such a declaration and award. Ms. Otto argued that for the
Court to decline to make such a declaration and award damages
summarily would be to render the MIRwithout effect or purpose. Ms.
Otto further argued, notwithstanding the lack of an express
provision, the logical progression of the MIR contemplates the
Court making a declaration and awarding the "CAP" amount
for non-pecuniary damages.
Ultimately, Justice Wilkins agreed with the Defendant's
position and declared the Plaintiff's injuries
"minor" as defined pursuant to the MIR. He further
granted summary judgment for the Plaintiff's non-pecuniary
damages in the amount of $4,000.00. Costs were awarded to the
Justice Wilkins' decision illustrates the merit in obtaining
a Certified Examination. Where the Certified Examiner concludes the
Plaintiff's injuries are minor, and the Plaintiff fails to
obtain expert evidence to rebut that opinion, the Court now has
persuasive authority to summarily determine the issue of general
damages, in the capped amount of $4,000.00, and grant judgment.
This precedent setting decision will also assist in guiding
settlement negotiations where the insurer has obtained a favourable
Certified Examination and the Defendant refuses to concede their
non-pecuniary damages fall within the MIR. We believe few
Plaintiffs will expose themselves to the expense associated with
obtaining medical evidence that may ultimately support the
It remains to be seen what type of evidence a Plaintiff will
have to obtain in order to rebut the prima facie evidence
of a Certified Examination. Given the effect this decision will
have on a Plaintiff's right to non-pecuniary damages, it may be
that any objectively verifiable evidence, such as a doctor's
treatment chart, will be sufficient to rebut the presumption, at
least on a summary judgment motion. In any event, this decision
will be useful in resolving files efficiently and economically,
where the Defendant has obtained a Certified Examiner's opinion
that the injury falls within the definition of minor injury
pursuant to the MIR.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).