Canada: Minor Injury Cap – Motor Vehicle Claims In BC (Part 1)

In 2018 the British Columbia government announced major changes to the Insurance (Vehicle) Act ("IVA"), with the intention of addressing a significant increase in the cost of claims over recent years. The most significant change comes in the form of a "minor injury cap", which will provide an upper limit to non-pecuniary damages claimed for motor vehicle accidents in which only "minor injuries" were sustained. This applies to accidents occurring on and after April 1, 2019.

Although the main focus of attention has been on the minor injury cap, the legislation has also quietly made other significant changes, including an increase in accident (medical) benefits, an increase in wage benefits, and the expanded deductibility of certain benefits from tort awards, reducing tort damages in certain cases.

Part 1 of this two-part post explores how a minor injury is defined under the new legislation. Part 2 discusses how minor injuries are dealt with and also reviews changes to the no-fault accident benefits regime under the IVA, closing off with some key takeaway points.

The following are some key dates to keep in mind:

  • January 1, 2018: statutory accident benefits (Part 7 benefits) increase to $300,000 from $150,000, retroactive for all accidents occurring on or after January 1, 2018.
  • May 17, 2018: effective for accidents occurring on or after May 17, 2018, the categories of benefits deductible from tort awards are expanded. Courts will no longer take the likelihood of payment of benefits into consideration when deducting benefits paid or payable from tort awards.
  • April 1, 2019: minor injury legislation applies to accidents occurring on or after this date, notably capping non-pecuniary damages for minor injury claims at $5,500. Section 82(2) limiting recovery for costs of health care treatments in tort claims also applies to accidents occurring on or after this date. Enhanced no fault benefits, including increased weekly wage loss payments (from $300/week to $740/week) and homemaking benefits (from $145/week to $280/week), also come into effect for accidents occurring on or after April 1, 2019.

1. What is a Minor Injury?

"Part 7 – Minor Injuries" has been added to the IVA, effective for accidents occurring on or after April 1, 2019. Section 103 provides an upper limit (a "cap") on the amount of damages recoverable for non-pecuniary loss arising from minor injuries suffered in a motor-vehicle accident to $5,500 (indexed to inflation). Non-pecuniary damages for claims involving non-minor injuries remain subject to cap set by the Supreme Court of Canada (presently at approximately $370,000).

The biggest question is how minor injuries are being defined. The government retains much latitude due to the fact the definition of minor injury is left to be expanded by regulation, specifically the Minor Injury Regulation ("MIR"), which was created on November 9, 2018, by way of an Order in Council. Accordingly, the government can continue to expand or refine the definition of minor injury without passing new legislation.

The result is a somewhat complicated process that involves referring back and forth between the IVA and the MIR to determine whether an injury is minor or not. Our associated flowchart "Is it a Minor Injury?" provides a helpful visual guide to making that determination.

The primary definition of "minor injury" is found in s. 101 of the IVA:

"minor injury" means a physical or mental injury, whether or not chronic, that

(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b) is one of the following:

(i) an abrasion, a contusion, a laceration, a sprain or a strain;

(ii) a pain syndrome;

(iii) a psychological or psychiatric condition;

(iv) a prescribed injury or an injury in a prescribed type or class of injury;

Therefore, an injury is a minor injury if (1) it is one of the injuries defined in the IVA or prescribed in the MIR and (2) it does not result in serious impairment or permanent serious disfigurement.

(i) Further Defined Minor Injuries

The MIR expands the definition of minor injury by prescribing additional injuries and types or classes of injuries that will be included in the definition of "minor injury". The consolidated list of defined and prescribed injuries or classes of injuries falling under the designation of "minor injury" is as follows:

  1. an abrasion, a contusion, a laceration, a sprain or a strain [IVA, 101(1)];
  2. a pain syndrome [IVA, 101(1)];
  3. a psychological or psychiatric condition [IVA, 101(1)];
  4. a concussion that does not result in an incapacity [MIR, s. 2];
  5. a TMJ disorder [MIR, s. 2];
  6. a WAD injury (with no demonstrable and clinically relevant neurological symptoms or fracture/dislocation of the spine) [MIR, s. 2].

Complicating the definition more, all of the bolded terms in the above-referenced list are further defined in s. 1(1) of the MIR. See Appendix A for the legislative definition of these terms.

(ii) Serious Impairment or Permanent Serious Disfigurement

Even if an injury is one of the six listed above, it will not be considered to be a minor injury if it results in "serious impairment" or "permanent serious disfigurement". However, there are a number of criteria that must be satisfied in order to fit within one of these two definitions.

It is easiest to first consider whether a minor injury caused a "permanent serious disfigurement", defined in s. 101 of the IVA as "a permanent disfigurement that significantly detracts from the claimant's physical appearance".

If it is not a "permanent serious disfigurement", the injury can still fall outside the minor injury category if it results in "serious impairment". "Serious impairment" means a physical or mental impairment that meets all of the following four criteria:

  1. the impairment is not resolved within 12 months (or another prescribed period [note: there is none at the time of publication]) [IVA, s. 101(1)]; AND
  2. the impairment results in substantial inability to perform the essential tasks of regular employment, occupation, profession, training or education, despite reasonable efforts to accommodate, or activities of daily living [MIR, s. 3]; AND
  3. the impairment is primarily caused by the accident and is ongoing since the accident [MIR, s. 3]; AND
  4. the impairment is not expected to improve substantially [MIR, s. 3].

"Activities of daily living" is also further defined in s. 1(1) of the MIR (see Appendix A).

(iii) Mitigation

Finally, even if the injury has been shown to result in serious impairment or permanent serious disfigurement, there is another test to pass before an injury will fall out of the definition of minor injury. The injury will still be considered a minor injury if the claimant failed to seek a diagnosis or failed to comply with treatment, unless the claimant can establish that the end result would have been the same even if a diagnosis had been sought or treatment complied with [IVA, s. 101(1) see definition of "serious impairment"]. In other words, if the injury started as a minor injury and would have remained a minor injury had a diagnosis or treatment been sought and followed, the injury will still be considered a minor injury even if it has, on its face, become more serious.

The result of this legislative puzzle is a broad definition of minor injury that is ripe for interpretative argument in the courts. It is likely that there will be significant argument over the meaning of the various terms (in particular the "substantial inability to perform the essential tasks..." part of the definition of "serious impairment") used to define "minor injury".

If you do not see the visual guide to understanding minor injuries below click here.

Part 2 of this blog post we will discuss the new adjudication process for minor injuries in the Civil Resolution Tribunal (CRT) and the increase in no-fault benefits.

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Alexander Holburn Beaudin + Lang LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Alexander Holburn Beaudin + Lang LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions