Wagners Serious Injury Lawyer Blog

Civil litigation can be costly and time consuming. These costs can make civil justice unaffordable to many victims injured in car accidents, medical malpractice, slips and falls, etc. Parties to civil litigation are obligated to disclose all relevant documents. The more that a party is required to produce, the more costly and time consuming the litigation will be. Insurance companies understand this and it is not uncommon for them to demand production of large volumes of materials with the effect of increasing costs to injured victims (and making access to justice inaccessible). Courts in Nova Scotia have routinely allowed this to take place. Insurance companies were allowed to go on "fishing expeditions". Production would be ordered so long as the materials produced may be helpful. Often times, injured victims - at their own cost - would have to produce materials that ultimately had no relevance. This approach drove up the cost of litigation and mainly benefited insurance companies.

Thankfully, change is coming. A judge in a recent slip and fall case ordered that the injured victim produce materials that would allow the defendant to go on a 'fishing expedition" in hopes of finding something that may be relevant. The lawyers at Wagners appealed this decision to the Nova Scotia Court of Appeal and were successful.

In a seminal decision released early April 2011, the Court of Appeal reined in the disclosure obligations of parties in civil litigation. No longer do injured victims - at their own cost - have to disclose things that may ultimately be irrelevant. From now on, only absolutely relevant materials have to be produced. "Fishing expeditions" are no longer permitted. The Court of Appeal accepted Wagners' argument and found that the restricted disclosure requirements will save parties time and expense.

The importance of a judicial system that fosters access to justice cannot be overstated. The lawyers at Wagners are proud to be at the forefront of a change in the law; a change that will result in victims, injured as a result of someone's negligence, receiving justice and compensation quicker and at less cost to themselves.

A link to the decision can be found here:

http://www.canlii.org/en/ns/nsca/doc/2011/2011nsca32/2011nsca32.html

Auto insurance is mandatory for Nova Scotians. Each driver in Nova Scotia contracts with an insurer so that they may be insured against liability and for damages should they ever be involved in a car accident. While the contract is between the driver and the insurance company, because car insurance is the primary source of compensation for car accident victims, governments are heavily involved in the regulation and operation of the insurance regime. Automobile insurance is a product with a public purpose. As such, it is arguable that car insurance contracts are no "contracts" in the traditional sense. They can be considered public regulatory documents.

The importance of this distinction arises during disputes over insurance coverage and denials. When such disputes come up, Courts are inevitably asked to decide on the meaning of the insurance policy. In doing so, should they treat the policy as a "contract", freely negotiated between two parties? Or, should Court regard the policy as a "social document", akin to a piece of legislation? The answer is important as it establishes whether a narrow text-centric interpretation will be used (i.e. what is the precise wording of the document), or whether the Courts will determine coverage dispute based on public policy (i.e. what is the intent and purpose of the policy).

Wagners law firm prefers and argues for the latter. Injured victims of car accidents routinely face insurance denials from insurance companies. In deciding whether the denials are warranted, Wagners contends we must look beyond a narrow reading of the plain contract. Being more akin to a public document, we must look at the social consequences of a denial of coverage. There is an inherent power imbalance between insurance companies and injured car accident victims, consumer protection principles call for the language of the insurance policies to be construed as much as possible in favour of the injured car accident victim.

An increasing number of human interactions are becoming criminalized. There are a variety of unintentional acts and omissions which have, over the past several decades, joined the category of crimes. Allegations of negligent conduct in civil cases are more and more commonly formulated in language that approximates the wording of an offence-creating Criminal Code provision. Some insurance companies are trying to use an exception to coverage commonly called the "criminal act" exclusion to deny coverage to persons sued for negligent conduct, where that conduct "approximates" a crime.

An example of this is the recent New Brunswick case of Donovan v. Optimum Insurance Company Inc. The facts are tragic. Brandon Donovan hosted a party at his parents' house while they were away on vacation. During the party, a guest was accidentally shot and killed. A claim was brought against Brandon and his parents. Their insurance company refused to insure them.

The New Brunswick Court of Appeal found against the insurance company. It reasoned that the company contractually undertook to pay all sums which the homeowner became legally liable to pay as compensatory damages because of unintentional bodily injury arising out of the insured's "personal actions". Both intentional and unintentional actions were covered, so long as any resulting bodily injury was not intended. This extended to the homeowner's negligent use of a firearm so long as he did not intend to cause any such injury (which it was found he did not).

Accidents happen. Sometimes those accidents stem from negligence and sometimes a person can be charged with a crime as a result of the negligence. From a policy perspective, as it is now common that allegations of negligence will closely resemble the particulars of misconduct typically provided in a charge of criminal negligence, Courts should be disinclined to allow insurance companies to deny a personal injury claim defence solely on the basis of similarity between the plaintiff's claim and a Criminal Code provision.

Link to case:
http://www.canlii.org/en/nb/nbca/doc/2009/2009nbca6/2009nbca6.html

Like several provinces, Nova Scotia has a cap on the compensation victims of motor vehicle accidents can receive for their injuries. From 2003 to 2010, under the control of a Conservative government, victims of auto accidents who fell under the legislated definition of a "minor injury" had a $2500 cap imposed on their damages.

The Conservative government defined "minor injury" in a manner that was all-encompassing. Most accident victims, regardless of the extent of their pain, suffering and injury, fell under the definition of "minor injury".

Fortunately, on April 28, 2010, the current Government introduced changes to Nova Scotia's minor injury cap. The amount of the cap was tripled to $7500.

The most significant improvements to the legislation are those made to the definition of "minor injury". While the previous definition of "minor injury" included many serious and long-term injuries; now only sprains, strains and whiplash-type injuries are considered "minor". Only these types of injuries are subject to the damage award cap of $7,500. The former definition eliminated or capped fair compensation for many accident victims. The new legislation expands the rights of accident victims to pursue claims to recover damages for their injuries.

As a result of this change to the law, now most victims of car accidents fall outside of the cap and will receive fair compensation for the loss of enjoyment of life and pain and suffering that may result from the motor vehicle accident.

Another positive change in the law is that the amount of the cap is indexed annually to reflect inflation. For example, in 2011, the few who are captured by the definition of "minor injury" are entitled to $7,665 for pain and suffering. The entitlement will continue to rise with inflation.

Despite the substantial changes to the legislation, insurance companies will surely continue to suggest to victims that they are caught by the definition of "minor injury" and are therefore only entitled to a "capped" compensation.

The lawyers at Wagners know better! We understand the legislation and our experienced lawyers understand how to approach appropriate claims in a manner that ensures it is found to be over the "cap".

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