Hartling et al. v. Nova Scotia (Attorney General) et al., 2009 NSSC 38

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 09, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 38;(2009), 279 N.S.R.(2d) 44 (SC)

Hartling v. N.S. (A.G.) (2009), 279 N.S.R.(2d) 44 (SC);

    887 A.P.R. 44

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. FE.036

Helen Hartling, Melissa Gionet, Anna Marie MacDonald (applicants) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia (respondent) and Insurance Bureau of Canada, an incorporated association (intervenor)

(Hfx No. 236705)

Saquoia McKinnon, an infant by her Litigation Guardian, Kathryn Jean McKinnon and John McKinnon (applicants) v. Adam Thomas Roy (respondent) and The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia (statutory respondent)

(Pic No. 217706; 2009 NSSC 38)

Indexed As: Hartling et al. v. Nova Scotia (Attorney General) et al.

Nova Scotia Supreme Court

Goodfellow, J.

February 9, 2009.

Summary:

MacDonald and Gionet had each suffered injuries as a result of motor vehicle accidents. MacDonald had been offered a settlement which included the cap amount of $2,500 for pain and suffering. Gionet had settled her claim for $3,000 after she was advised that the $2,500 cap would apply to her claim. MacDonald and Gionet brought an application, arguing that: (1) the definition of "minor injury" in s. 113B(1)(a) of the Insurance Act discriminated against individuals with certain types of pain and discomfort and thereby constituted discrimination based on physical disability as defined in s. 15(1) of the Charter; (2) s. 113(B)(1)(a) of the Insurance Act discriminated on the basis of sex by disproportionately affecting women with minor injuries as a result of an automobile accident; (3) s. 2(1)(d)(ii) of the Automobile Insurance Tort Recovery Limitation Regulations infringed s. 15(1) of the Charter on the basis of physical disability against individuals suffering from certain forms of chronic pain; (4) ss. 2(1)(f), (g) and (h) of the Auto Insurance Tort Recovery Limitation Regulations were ultra vires the Insurance Act. McKinnon was 13 years old when she was walking with her father and witnessed him being struck by a motor vehicle. As a result of viewing what happened to her father, McKinnon suffered Post Traumatic Stress Disorder. McKinnon brought an application challenging s. 113(B)(1) of the Insurance Act and s. 2(1)(f) of the Automobile Insurance Tort Recovery Limitation Regulations, raising the issue of whether McKinnon had been discriminated against on the basis of mental disability.

The Nova Scotia Supreme Court, in a decision reported at 278 N.S.R.(2d) 112; 886 A.P.R. 112, dismissed the applications, holding that none of the constitutional challenges had been established.

The Nova Scotia Supreme Court delivered Part II of its decision which addressed the issue of s. 1 of the Charter. Although it was not technically necessary to do so, the court held that it should address the s. 1 issue on the basis that its determination that the applicants failed to establish their Charter challenges was in error. The s. 1 analysis was restricted to the applications of Gionet and MacDonald. The court held that the Attorney General of Nova Scotia had established on a balance of probabilities that the objective of the impugned legislation was pressing and substantial, that there was a rational connection between the legislation and its objective and that there had been minimal impairment. However, with respect to the fourth part of the Oakes test, the court held that, assuming that the legislation advanced and fostered stereotyping and stigmatization (which the court did not find) then it would conclude that the benefits of the legislation fell short of justifying such stereotyping. Since the Attorney General failed to meet all four requirements of the Oakes test, the legislation was not protected by s. 1 of the Charter.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 1061

Discrimination - By sex - General - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 5656.2

Equality and protection of the law - Particular cases - Insurance legislation - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - MacDonald and Gionet had each suffered injuries as a result of motor vehicle accidents - MacDonald had been offered a settlement which included the cap amount of $2,500 for pain and suffering - Gionet had settled her claim for $3,000 after she was advised that the $2,500 cap would apply to her claim - MacDonald and Gionet brought an application, arguing that: (1) the definition of "minor injury" in s. 113B(1)(a) of the Insurance Act discriminated against individuals with certain types of pain and discomfort and thereby constituted discrimination based on physical disability as defined in s. 15(1) of the Charter; (2) s. 113(B)(1)(a) of the Insurance Act discriminated on the basis of sex by disproportionately affecting women with minor injuries as a result of an automobile accident; (3) s. 2(1)(d)(ii) of the Automobile Insurance Tort Recovery Limitation Regulations infringed s. 15(1) of the Charter on the basis of physical disability against individuals suffering from certain forms of chronic pain; (4) ss. 2(1)(f), (g) and (h) of the Auto Insurance Tort Recovery Limitation Regulations were ultra vires the Insurance Act - All of the constitutional challenges were dismissed - Although it was not technically necessary to do so, the court considered the issue of s. 1 of the Charter on the basis that its determination that the applicants failed to establish their Charter challenges was in error - The Nova Scotia Supreme Court held that the Attorney General of Nova Scotia had established on a balance of probabilities that the objective of the impugned legislation was pressing and substantial, that there was a rational connection between the legislation and its objective and that there had been minimal impairment - However, with respect to the fourth part of the Oakes test, the court held that, assuming that the legislation advanced and fostered stereotyping and stigmatization (which the court did not find) then it would conclude that the benefits of the legislation fell short of justifying such stereotyping - Since the Attorney General failed to meet all four requirements of the Oakes test, the legislation was not protected by s. 1 of the Charter.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See Civil Rights - Topic 8348 ].

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 6].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 9].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321, refd to. [para. 10].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1; 1992 CarswellMan 100, refd to. [para. 11].

R. v. Fringe Product Inc. (1990), 53 C.C.C.(3d) 422 (Ont. Dist. Ct.), refd to. [para. 12].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 CarswellAlta 1260; 2004 ABCA 281, consd. [para. 13].

Morine v. Parker (L & J) Equipment Inc. (2001), 193 N.S.R.(2d) 51; 602 A.P.R. 51 (C.A.), refd to. [para. 22].

Way v. Social Assistance Appeal Board (N.S.) (1997), 160 N.S.R.(2d) 128; 473 A.P.R. 128; 147 D.L.R.(4th) 505 (C.A.), refd to. [para. 22].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 98].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 98].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 4].

Counsel:

Barry J. Mason and Glenn E. Jones, on behalf of the applicants, Gionet and MacDonald;

Janus Siebrits, on behalf of the applicant, McKinnon;

D. Geoffrey Machum, Q.C., and Christa M. Hellstrom, on behalf of the respondent, Adam Roy;

Alexander M. Cameron, on behalf of the Attorney General of Nova Scotia;

Jeffrey W. Galway and Rahat Godil, on behalf of the Insurance Bureau of Canada.

This matter was heard between October 6 and 31, 2008, at Halifax, Nova Scotia, before Goodfellow, J., of the Nova Scotia Supreme Court, who delivered the following reasons on February 9, 2009.