Equality rights and Alberta's minor injury cap.

• Date: 01 January 2009
• Author: Billingsley, Barbara

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Suppose that Mary and Alice are both injured in a car accident caused by another driver. As a result of the accident, Mary has a moderate whiplash injury which does not greatly inhibit her regular activities, but which causes her considerable discomfort for several months. Alice, on the other hand, breaks her leg in the accident. Alice's injury also causes her discomfort for several months. Assume that, in financial terms, the discomfort of Mary and Alice can be reasonably valued at $20,000 each. Given these circumstances, you might think that Mary and Alice should each be allowed to sue the driver who caused the accident for $20,000. In Alberta, however, this may not be the case.

In 2004 the Alberta government passed a law which is commonly known as the "Minor Injury Cap." (1) Under this law, a person who suffers a minor soft tissue injury (i.e. a non-debilitating injury to muscle or ligaments) can recover a maximum of $4000 in general damages (2) from the at-fault driver. A person who suffers an injury which is not restricted to soft tissue, however, can recover the full financial value of his or her pain and suffering from the at-fault driver. In very simple terms, the Minor Injury Cap significantly limits the general damages which can be recovered by anyone who suffers a mild to moderate whiplash injury in an automobile accident. So, in the above example, Mary can recover only $4000 while Alice can recover $20,000.

The obvious question raised by this scenario is whether the Minor Injury Cap is a fair law. This question recently made its way to the Alberta Court of Queen's Bench, where the fairness of the Minor Injury Cap was evaluated on the basis of the Canadian Charter of Rights and Freedoms which, among other things, guarantees every Canadian equal treatment before the law. On February 8, 2008, the Court of Queen's Bench decided that the Minor Injury Cap is an invalid law because it unjustifiably violates the Charter's equality guarantee. (3) The main purpose of this article is to explain the Court's findings on this point and to briefly comment on the implications and significance of this Court decision.

A Two-Step Analysis

In order to determine whether the Minor Injury Cap violates the Charter of Rights and Freedoms, the Alberta Court of Queen's Bench was obliged to follow a two-step legal analysis. First, the Court had to decide whether the Minor Injury Cap violates the equality guarantee set out in Section 15(1) of the Canadian Charter of Rights and Freedoms. Section 15(1) provides that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or...