McIntyre v Babin, 2009 NBQB 65 is an
interesting decision which may impact upon the limitation period
that will be applied by Alberta Courts for Minor Injury
In Ontario, claimants who sue for personal injuries must, in
order to bring a lawsuit, surpass a threshold and establish that
the accident in question has produced "serious
disfigurement" or a "serious impairment".
This is different legislation than in Alberta as, under the
Alberta Minor Injury Regulation, a claimant's damages
for personal injuries and other forms of general nonpecuniary
damages are capped unless they sustain spinal dislocation, spinal
fracture, a form of whiplash that involves objective neurological
signs or the injuries constitute a "serious
New Brunswick also has legislation that is designed to limit the
ability of a claimant to recover damages for whiplash and other
forms of soft tissue injury. As in the case of Alberta, this
legislation creates a cap as opposed to a threshold.
Courts in Ontario have held that, as a result of the language of
the threshold, a plaintiff does not have the ability to sue until
he could have discovered that he sustained a serious disfigurement
or a serious impairment. As a result, Ontario Courts have allowed
personal injury actions to be commenced more than two years after
the date of an accident.
The New Brunswick Court of Queen's Bench was recently asked
to determine when the limitation period for a plaintiff begins to
run in the post cap era. The New Brunswick Court of Queen's
Bench was encouraged to apply the principles that had been adopted
by the Ontario Courts, and conclude that the limitation period
begins to run when a claimant could have discovered that his or her
injuries produced a serious impairment. The New Brunswick Court of
Queen's Bench, however, refused to apply the principles that
had found favour in Ontario, and concluded that a claimant in a
personal injury action does not need to know the extent of his or
her injuries in order for the limitation period to begin to run.
Instead, a claimant must simply know the identity of the defendant
and that some damage has occurred. As a result,
the New Brunswick Court of Queen's Bench concluded that the
limitation period for a cap claim will invariably begin to run on
the day of the accident.
Obviously, this decision of the New Brunswick Court of
Queen's Bench is not binding on an Alberta Court, but it may
have persuasive value for Alberta Courts. It also increases the
chances of the Alberta Courts concluding that the limitation period
for a claimant who is pursuing personal injuries in the
post-Minor Injury Regulation era will begin on the date of
the accident, and not at some later date when the claimant could
have discovered that his or her injuries were either excluded from
the application of the Minor Injury Regulation or,
alternatively, that the injuries constituted a "serious
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