Hartling et al. v. Nova Scotia (Attorney General) et al., 2009 NSSC 2

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 12, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 2;(2009), 278 N.S.R.(2d) 112 (SC)

Hartling v. N.S. (A.G.) (2009), 278 N.S.R.(2d) 112 (SC);

    886 A.P.R. 112

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.055

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 2)

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

Nova Scotia Supreme Court

Goodfellow, J.

January 12, 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 dismissed the applications, holding that none of the constitutional challenges had been established.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See first, third and fourth Civil Rights - Topic 5667.2 ].

Civil Rights - Topic 1066

Discrimination - By sex - What constitutes - [See second Civil Rights - Topic 5667.2 ].

Civil Rights - Topic 5656.2

Equality and protection of the law - Particular cases - Insurance legislation - [See all Civil Rights - Topic 5667.2 ].

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - The applicants, 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 - The applicants asserted that 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 - The Nova Scotia Supreme Court held that s. 113(B)(1)(a) of the Insurance Act did not infringe s. 15(1) of the Charter - The court stated that even if one accepted for purposes of argument that the definition of minor injury in s. 113B(1)(a) created a distinction on grounds of physical disability, any such distinction was not necessarily discriminatory - The court held that not only had the applicants failed to establish on a balance of probabilities that s. 113B(1) of the Insurance Act created stigmatization and stereotyping, the evidence established overwhelmingly that there was no stigmatization or marginalization resulting from the legislation - What limited stigmatization and marginalization existed was a by-product of the adversarial system which pre-dated the legislation and which, through the process of education, etc., was ever-diminishing - See paragraphs 11 to 124.

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - The applicants, 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 - The applicants argued that s. 113(B)(1)(a) of the Insurance Act, which defined "minor injury", discriminated on the basis of sex by disproportionately affecting women with minor injuries as a result of an automobile accident - The Nova Scotia Supreme Court held that the applicants had failed to establish on a balance of probabilities that s. 113B(1)(a) of the Insurance Act infringed s. 15(1) of the Charter on the basis of sex - The court stated that "Proceeding on the basis that the appropriate comparator group is males with similar injuries to women (i.e., minor injuries), it is clear that there is no discrimination against women. There was no allegation that the intent of the legislation was to discriminate against women and as to the effect of the legislation, s. 113(B)(1)(a) treats men and women in an identical fashion in terms of their ability to recover pecuniary and non-pecuniary damages. The impugned provision does not create a distinction based on enumerated or analogist ground. As both men and women recover full pecuniary damages and both men and women who suffer minor injuries receive non-pecuniary damages up to the cap of $2,500" - See paragraphs 125 to 154.

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - The applicants, 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 - The applicants argued that s. 2(1)(d)(ii) of the Automobile Insurance Tort Recovery Limitation Regulations violated s. 15(1) of the Charter because it discriminated based on physical disability, against individuals suffering from certain forms of chronic pain, as compared to individuals with a physical disability who met or exceeded the threshold test for injuries in order to avoid the cap on damages - The Nova Scotia Supreme Court held that the applicants failed to establish that s. 2(1)(d)(ii) of the Regulations infringed s. 15(1) of the Charter on the basis of physical disability - The court stated that "what Regulation 2(1)(d)(ii) does is to provide expressly that a certain category of chronic pain are not considered a minor injury ... This does not mean that all other such injuries are minor injuries. The result is that a person who meets the definition of chronic pain in the Regulation is deemed not to be a minor injury and they can sue for damages for pain and suffering without legislative limit. This is not different than the comparator group advanced by the applicants, namely, 'individuals who meet or exceed the threshold'. They are treated equally. Their ability to sue for pain and suffering damages is not affected and no possible case exists for discrimination. Sufferers of chronic pain outside Regulation 2(1)(d)(ii) are not labelled minor injuries. Their position will depend upon the application of the test in s. 113B(1) of the Insurance Act. I conclude that those who suffer minor injuries cannot be characterized, as a group, as physically disabled" - The court also held that the applicants' contention that this Regulation resulted in stigmatization and stereotyping of chronic pain sufferers was not supported by the evidence - See paragraphs 155 to 158.

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - 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 (PTSD) - McKinnon challenged s. 113B(1) of the Insurance Act, which defined "minor injury" and s. 2(1)(f) of the Auto Insurance Tort Recovery Limitation Regulations, which defined the word "resolves" for the purpose of s. 113B - The issue was whether McKinnon had been discriminated against on the basis of mental disability because her injury was not "physical in nature"- The Nova Scotia Supreme Court held that McKinnon's challenge to s. 113B(1) of the Insurance Act and s. 2(1)(f) of the Regulations had not been established - The court accepted that PTSD had been established to be an injury "physical in nature" - It did not accept the argument advanced by McKinnon's solicitor that the terminology "physical in nature" in s. 2(1)(f) of the Regulations was meant to reinforce and strengthen the word "physical" from what it would have meant if it stood alone - The addition of the words "in nature", rather than reinforcing and strengthening the word "physical", were intended to extend what the word "physical" would mean if it stood alone - If McKinnon had a permanent, serious impairment of an important body function which was caused by a continuing injury or an injury which was not "resolved" within 12 months, then she would not be restricted in terms of her claim and her non-pecuniary damages given the fact that her injuries were "physical in nature" - In the terms of McKinnon's s. 15(1) challenge, no distinction had been made with respect to her injury on the basis of mental disability - See paragraphs 174 to 207.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See all Civil Rights - Topic 5667.2 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - Sections 2(1)(f), (g) and (h) of the Auto Insurance Tort Recovery Limitation Regulations defined the phrases "resolves", "substantial interference" and "usual daily activities" for the purposes of s. 113B of the Insurance Act, which defined "minor injury" - The applicants argued that ss. 2(1)(f), (g) and (h) of the Regulations were ultra vires the Insurance Act - The applicants asserted that these sections were inconsistent with the spirit, meaning, wording and purposes of the Act - The Nova Scotia Supreme Court held that the applicants failed to establish that these sections were ultra vires on a balance of probabilities and, further, they appeared to be clearly consistent with the legislation and entirely within the power of the Legislature permitting the Governor in Council to make Regulations defining any word or expression used but not defined in the legislation - The court did not accept that the intent, purpose and objective of the Insurance Act was to protect injured parties - In the court's view the overall intention of the legislation was the reduction of automobile insurance premiums by controlling claim costs with respect primarily to automobile accidents and the desire to strengthen the consumer protection provisions of the Act - The court concluded that the definitions "resolves", "substantial interference" and "usual daily activities" were consistent with the objectives of controlling claim costs with automobile accidents, reduction of automobile insurance premiums and the desire to strengthen the consumer protection provisions of the Insurance Act - See paragraphs 159 to 173.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The Nova Scotia Supreme Court set out some of the guiding principles established by the jurisprudence in assessing whether a regulation is ultra vires its parent legislation - See paragraph 167.

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, appld. [para. 12].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 294 D.L.R.(4th) 1; 2008 SCC 41, refd to. [para. 15].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 16].

Downey v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 267 N.S.R.(2d) 364; 853 A.P.R. 364; 2008 NSCA 65, consd. [para. 17].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 18].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 22].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 23].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 26].

Hernandez v. Palmer (1992), 15 C.C.L.I.(2d) 187 (Ont. Gen. Div.), consd. [para. 56].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 101].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 102].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 107].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 108].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 109].

Lee v. Dawson (2006), 224 B.C.A.C. 199; 370 W.A.C. 199; 267 D.L.R.(4th) 138; 2006 BCCA 159, refd to. [para. 110].

Egan and Nesbitt v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 114].

Morrow v. Zhang et al. (2008), 421 A.R. 1; 86 Alta. L.R.(4th) 137; 2008 ABQB 98, refd to. [para. 117].

Way v. Covert - see Way v. Social Assistance Appeal Board (N.S.).

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. 162].

Morine v. Parker (L & J) Equipment Inc. (2001), 193 N.S.R.(2d) 51; 602 A.P.R. 51 (C.A.), refd to. [para. 164].

Ogilvie et al. v. Nova Scotia (Minister of Community Services) (2004), 224 N.S.R.(2d) 227; 708 A.P.R. 227 (S.C.), refd to. [para. 166].

Investment Property Owners' Association of Nova Scotia v. Nova Scotia (1984), 65 N.S.R.(2d) 319; 147 A.P.R. 319; 15 D.L.R.(4th) 192 (C.A.), refd to. [para. 167].

Ross, Barrett & Scott et al. v. A.S. (1995), 139 N.S.R.(2d) 383; 397 A.P.R. 383; 33 C.P.C.(3d) 250 (C.A.), refd to. [para. 167].

Wentzell, Floris and Best v. Nova Scotia (Attorney General) (1985), 70 N.S.R.(2d) 181; 166 A.P.R. 181 (C.A.), refd to. [para. 167].

Kubel v. Alberta (Minister of Justice) (2005), 32 C.C.L.I.(4th) 243; 2005 ABQB 836, refd to. [para. 167].

Johnson v. Federated Mutual Insurance Co. (1989), 96 A.R. 266; 60 D.L.R.(4th) 417 (C.A.), refd to. [para. 167].

Heppner v. Alberta (1977), 6 A.R. 154; 80 D.L.R.(3d) 112 (C.A.), refd to. [para. 167].

Szmuilowicz v. Ontario (Minister of Health) et al. (1995), 82 O.A.C. 183; 24 O.R.(3d) 204 (Div. Ct.), refd to. [para. 167].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 169].

McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.), refd to. [para. 205].

Statutes Noticed:

Automobile Insurance Tort Recovery Limitation Regulations - see Insurance Act Regulations (N.S.).

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 15 [para. 11].

Insurance Act, R.S.N.S. 1989, c. 231, sect. 113B(1) [para. 9].

Insurance Act Regulations (N.S.), Automobile Insurance Tort Recovery Limitation Regulations, Reg. 182/2003, sect. 2(1)(d), sect. 2(1)(f), sect. 2(1)(g), sect. 2(1)(h) [para. 10].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 589 [para. 159].

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.

These applications were heard between October 6 and 31, 2008, at Halifax, N.S., before Goodfellow, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 12, 2009.