Hartling v. N.S. (A.G.),

• Jurisdiction: Nova Scotia
• Judge: MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A.
• Neutral Citation: 2009 NSCA 130
• Citation: (2009), 286 N.S.R.(2d) 219 (CA),2009 NSCA 130,314 DLR (4th) 114,286 NSR (2d) 219,286 N.S.R.(2d) 219,(2009), 286 NSR(2d) 219 (CA),286 NSR(2d) 219,314 D.L.R. (4th) 114
• Date: 15 December 2009
• Court: Court of Appeal of Nova Scotia (Canada)

Hartling v. N.S. (A.G.) (2009), 286 N.S.R.(2d) 219 (CA);

    909 A.P.R. 219

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. DE.037

Helen Hartling, Melissa Gionet, Anna Marie MacDonald and The Nova Scotia Coalition Against No-Fault Insurance Society, an incorporated association (appellants) 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 (respondent)

(CA 308621)

Saquoia McKinnon, an infant by her Litigation Guardian, Kathryn Jean McKinnon and John McKinnon (appellants) 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 (respondent) and Insurance Bureau of Canada, an incorporated association (respondent)

(CA 306318; 2009 NSCA 130)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A.

December 15, 2009.

Summary:

MacDonald and Gionet were injured in separate motor vehicle accidents in 2003, shortly after the $2,500 cap on non-monetary damages for "minor injuries" came into effect. By way of an originating notice, they challenged the legislation capping non-monetary damages for minor injuries at $2,500 on the basis that it was discriminatory on the basis of physical disability and sex in violation of the equality provisions of Charter. Alternatively, they asserted that the government enacted regulations that expanded the reach of the cap beyond what the legislation intended. McKinnon witnessed her father being struck by a truck as they walked along the highway. She now suffered from post traumatic stress disorder. By way of an interlocutory application arising out of her action against the motorist who struck her father, McKinnon challenged the minor injury cap legislation on the basis that it discriminated on the basis of mental disability. The applications were heard together.

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. Although it was not necessary to do so, the court addressed the issue of s. 1 of the Charter on the basis that it was in error in its determination that the applicants failed to establish their Charter challenges. In a decision reported at 279 N.S.R.(2d) 44; 887 A.P.R. 44, the court held that the legislation was not protected by s. 1 of the Charter. MacDonald and Gionet appealed. McKinnon also appealed.

The Nova Scotia Court of Appeal dismissed the appeal by MacDonald and Gionet, holding that both the legislation and the regulations were valid. The provisions were not discriminatory as contemplated by the Charter and the impugned regulations did not run afoul of the legislation. The court denied leave to appeal in McKinnon's appeal because there was no longer an arguable issue to be resolved.

Civil Rights - Topic 960.1

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

Civil Rights - Topic 1061

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

Civil Rights - Topic 5656.2

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

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - The appellants challenged the province's 2003 legislation capping non-monetary damages for "minor injuries" at $2,500 - The Nova Scotia Court of Appeal held that the trial judge did not err in finding that the legislation did not discriminate on the basis of physical disability in breach of s. 15 of the Charter - The court agreed with the appellants that their group (minor injury accident victims) was treated differently from other automobile accident victims who would avoid the cap, that the distinction was based on the enumerated ground of physical disability, and that minor injury accident victims were disadvantaged by the legislation - However, after a consideration of the four contextual factors set out in Law v. Minister of Employment and Immigration (S.C.C.), the court held that the evidence in this case did not meet the test for discrimination - The court concluded that "while the cap represents a new disadvantage, there is no evidence of an historic disadvantage and very sparse evidence of past stereotyping. Furthermore, this reform is sufficiently attentive to the appellants' needs, capacity and circumstances. Specifically, the appellants will continue to be fully compensated for all direct financial losses. As well, the interest affected is already arbitrary by nature. In other words, while this legislation results in a disadvantage, it is not the product of prejudice or stereotyping as envisaged under section 15" - See paragraphs 44 to 96.

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - The appellants challenged the province's 2003 legislation capping non-monetary damages for "minor injuries" at $2,500 on the basis that the legislation discriminated on the basis of sex in breach of s. 15 of the Charter - The appellants argued that the legislation created a further adverse consequence for women - Specifically, they said that because women had long been disadvantaged in the workforce and earned significantly less than men, non-monetary awards represented a much greater portion of their loss - Further, they asserted that non-monetary loss for women was more significant, due to complications involving such things as pregnancy and childcare - The Nova Scotia Court of Appeal, after considering the four contextual factors set out in Law v. Minister of Employment and Immigration (S.C.C.), held that the legislation did not discriminate on the basis of sex in breach of s. 15 of the Charter - The court stated, inter alia, that "... fundamentally, the problem identified by the appellants has nothing to do with the cap. Instead, the root problem is discrimination in the workplace and the consequential reduction in wage loss claims. ... while the effects of this legislation may be more acute for women, the solution, in my view, lies elsewhere. Specifically, the solution to this problem lies with ongoing efforts towards pay equity" - See paragraphs 97 to 110.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Requirement of establishing a factual foundation - [See Courts - Topic 2286 ].

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The appellants challenged the province's 2003 legislation capping non-monetary damages for "minor injuries" at $2,500 on the basis that it was discriminatory in violation of the equality provisions of the Charter - Alternatively, they asserted that the government enacted regulations that expanded the reach of the cap beyond what the legislation intended - The trial judge rejected the appellants' arguments - The appellants appealed - The Nova Scotia Court of Appeal, in addressing the standard of review of the trial judge's decision, stated "In this case, much of the evidence was based in social science which, some have argued, calls for a less deferential standard. This is not necessarily so. Instead, I adopt the approach taken by the Alberta Court of Appeal in Morrow v. Zhang (2009 ABCA 215) dealing with the constitutionality of that province's cap legislation and a body of evidence similar to the one we face" - The court agreed with the appellants that whether a certain set of facts amounted to discrimination under the Charter represented a constitutional question of law to be reviewed on the correctness standard - Further, the challenge to the regulations involved essentially an exercise in statutory interpretation which attracted the correctness standard - See paragraphs 29 to 32.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - McKinnon witnessed her father being struck by a truck as they walked along the highway - She now suffered from post traumatic stress disorder (PTSD) - By way of an interlocutory application arising out of her action against the motorist who struck her father, McKinnon challenged the 2003 legislation capping non-monetary damages for "minor injuries" at $2,500 on the basis that it discriminated on the basis of mental disability in violation of s. 15 of the Charter - McKinnon's concern was that by the definition of minor injury in s. 113B(1)(a)(ii) of the Insurance Act, any injury which was not "physical in nature" would be automatically deemed a "minor injury" - The trial judge concluded that McKinnon's injury (PTSD) was "physical in nature" and her fear that she would be automatically caught by the cap was therefore unfounded - In other words, her injury was no different from any other injury that was "physical in nature" and without that distinction there could be no basis for discrimination - McKinnon appealed - The Nova Scotia Court of Appeal held that the trial judge's factual finding that McKinnon's injury was physical in nature rendered the appeal moot - While McKinnon urged the court to consider the constitutionality of s. 113B(1)(a)(ii), if not on her behalf, then on behalf of other would-be plaintiffs whose injuries were purely mental as opposed to physical in nature, the court declined to do so - First, while there might be a potential constitutional issue for victims with injuries that were not "physical in nature", this was not that case - There should be an evidentiary basis to buttress any s. 15 claim - Further, since this was an interlocutory appeal, McKinnon required leave to appeal pursuant to the Civil Procedure Rules and the Judicature Act and the court held that leave should be denied - There was nothing to be gained by exploring what had now been rendered a hypothetical question - This was not one of those cases with sufficient importance to trigger the court's discretion to see it proceed - See paragraphs 131 to 141.

Damages - Topic 1501

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

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - The appellants challenged the province's 2003 legislation capping non-monetary damages for "minor injuries" at $2,500, arguing that the government enacted regulations that expanded the reach of the cap beyond what the legislation intended - The appellants submitted that the legislative intent was to produce a regime where an injury would be considered "minor" only when a victim was pain free after 12 months - In other words, the reference in s. 113B(1)(a)(iii) of the Insurance Act to "resolves" meant "pain free" - Thus, by defining "resolves" in the regulations to mean something much less than pain free, the government made it harder to escape the cap, thereby thwarting the will of the Legislature - The appellants therefore submitted that ss. 2(1)(f), (g) and (h) of the Automobile Insurance Tort Recovery Limitation Regulations were inconsistent with the Automobile Insurance Reform Act and ought to be struck as ultra vires the legislation - The Nova Scotia Court of Appeal dismissed this aspect of the appeal - The court found nothing in the House Debates to support the appellants' assertion that the compromise meant that the cap would cover only those victims pain free within 12 months - While the regulations may have made it harder to avoid the cap, the court could not say that they were inconsistent with the compromise reached through the legislative process - The appellants failed to establish that the regulations ran afoul of the legislation - See paragraphs 111 to 130.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 29].

Morrow et al. v. Zhang et al. (2009), 454 A.R. 221; 455 W.A.C. 221; 2009 ABCA 215, refd to. [para. 30].

R. v. Allen (C.R.) et al. (2005), 236 N.S.R.(2d) 258; 749 A.P.R. 258; 2005 NSCA 118, refd to. [para. 32].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 36].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 37].

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. 38].

Morrow v. Zhang et al. (2008), 424 A.R. 131; 2008 ABQB 125, consd. [para. 41].

Hernandez v. Palmer, [1992] O.J. No. 2648 (Gen. Div.), consd. [para. 43].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 61].

Livingstone v. Raywards Coal Co. (1880), 5 App. Cas. 25 (H.L.), refd to. [para. 63].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2009), 384 N.R. 203; 2009 SCC 9, refd to. [para. 66].

Workers' Compensation Board (N.S.) v. Martin et al. (2003), 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 74].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 89].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 83 D.L.R.(3d) 609, refd to. [para. 89].

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; 83 D.L.R.(3d) 480, refd to. [para. 89].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 90].

ter Neuzen v. Korn - see Neuzen v. Korn.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 90].

Lee v. Dawson et al. (2006), 224 B.C.A.C. 199; 370 W.A.C. 199; 267 D.L.R.(4th) 138; 2006 BCCA 159, leave to appeal denied (2006), 361 N.R. 391; 240 B.C.A.C. 319; 398 W.A.C. 319 (S.C.C.), refd to. [para. 92].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 244 D.L.R.(4th) 294; 2004 SCC 66, refd to. [para. 104].

Canadian Human Rights Commission et al. v. Canadian Airlines International Ltd. et al., [2006] 1 S.C.R. 3; 343 N.R. 308; 263 D.L.R.(4th) 1; 2006 SCC 1, refd to. [para. 104].

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. 119].

Morine v. Parker (L & J) Equipment Inc. (2001), 193 N.S.R.(2d) 51; 602 A.P.R. 51; 2001 NSCA 53, refd to. [para. 119].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 200 D.L.R.(4th) 219; 2001 SCC 40, refd to. [para. 120].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385, refd to. [para. 135].

Pearce v. Workers' Compensation Board (N.S.), [1996] N.S.J. No. 433 (C.A.), refd to. [para. 137].

Geldart v. Workers' Compensation Board (N.S.) (1996), 155 N.S.R.(2d) 51; 457 A.P.R. 51 (C.A.), refd to. [para. 137].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 138].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 139].

Canadian Union of Public Employees, Local 1183 v. Breton Bay Nursing Home Ltd., [1999] N.S.R.(2d) Uned. 39 (C.A.), refd to. [para. 140].

R. v. Hershey, [1988] N.S.J. No. 423 (C.A.), refd to. [para. 140].

Association of Health Organizations (N.S.) v. Workers' Compensation Appeal Board (N.S.) and MacArthur (1994), 132 N.S.R.(2d) 367; 376 A.P.R. 367 (C.A.), refd to. [para. 140].

Statutes Noticed:

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

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [para. 33].

Insurance Act, R.S.N.S. 1989, c. 231, sect. 113B(1), sect. 113B(4) [para. 10].

Insurance Act Regulations (N.S.), Automobile Insurance Tort Recovery Limitation Regulations, Reg. 182/2003, sect. 2(1)(d) [para. 13]; sect. 2(1)(f) [para. 14]; sect. 2(1)(g), sect. 2(1)(h) [para. 15]; sect. 3 [para. 11].

Counsel:

John P. Merrick, Q.C., Barry J. Mason and Glenn Jones, for the appellants, Gionet and MacDonald;

Janus Siebrits, for the appellants, McKinnon;

Alexander Cameron and Mark Rieksts, for the respondent, Attorney General;

Geoff Machum, Q.C., and Christa M. Brothers, for the respondent, Roy;

Jeffrey W. Galway and Rahat Godil, for the respondent, Insurance Bureau of Canada.

This appeal was heard on October 13 and 14, 2009, at Halifax, N.S., before MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by MacDonald, C.J.N.S., on December 15, 2009.