Alberta Injury Cap Constitutional
In Morrow v. Zhang, 2009 ABCA 215, the Alberta Court of Appeal recently released its decision on the constitutionality of the Province’s monetary cap on non-pecuniary damages. Under the cap, car accident victims could only receive a maximum of $4,000 for pain and suffering. The trial judge ruled that the cap unjustifiably violated s. 15 of the Charter. In an unanimous decision, the Alberta Court of Appeal held that the cap did not violate s. 15 of the Charter, and upheld the trial judge’s decision that the cap did not violate s. 7 of the Charter.
The Appeal Court’s decision raises the recurring debate over the efficacy of threshold tort systems. Alberta took a fairly hard line on “minor injuries” by imposing the cap, and this approach has been vindicated by the Court. The evidence was that premiums had dropped by 18 % since the imposition of the cap. Ontario has its own threshold, but does not like Alberta impose a cap on non-pecuniary damages for minor injuries. It actually goes further and denies any claim for non-pecuniary damages for non-threshold claims and the same applies to any type of injury (i.e. soft tissue, orthopaedic, psychological). It appears that the Alberta Court of Appeal’s decision may be appealed to the Supreme Court of Canada. If upheld, it will be interesting to see if this influences future changes to Ontario’s tort regime, and whether it prompts the goverment to implement further retrictions on damages.