Alberta insurance cap on soft-tissue injuries struck down

In a landmark ruling, a judge has struck down a part of Alberta's insurance law that limited insurance claims on soft-tissue injuries, saying it violates Canada's Charter of Rights and Freedoms.

In his ruling Friday, Associate Chief Justice Neil Wittman of the Court of Queen's Bench decided the government's payout cap was unconstitutional because it discriminates against specific victims of vehicle accidents.

'It is demeaning to them because it suggests that their pain is worth less than that of other injury sufferers.' —Associate Chief Justice Neil Wittman

In 2004, the Alberta government introduced the Minor Injury Regulation, a $4,000 cap on soft-tissue injury payouts for things like whiplash or strains, in an effort to keep insurance rates affordable.

"It is demeaning to them because it suggests that their pain is worth less than that of other injury sufferers," Wittman said of the regulation in his 87-page decision.

"It also confirms prejudices that soft-tissue injuries are generally faked or exaggerated. The impact of the discrimination cannot be viewed as trivial when the impugned legislation reinforces prejudicial stereotypes."

Lawyers for two women injured in separate accidents argued their clients deserved higher settlements for their pain and suffering.

Peari Morrow, 34, was driving through a green light in Calgary in October 2004 when a vehicle struck her car's passenger side. She suffered soft-tissue injuries to her neck and upper back. The trial heard she felt tingling and numbness in her arm for six months.

Brea Pedersen, 32, was rear-ended in Edmonton in March 2005 and suffered soft-tissue injuries to her neck, shoulder, back and wrists.

The judge raised the insurance payouts to $21,000 for Morrow and $15,000 for Pedersen.

"It means that the thousands of lawsuits that have been on hold, not only lawsuits, but motor vehicle injuries claims, can be assessed in a fair and even-handed manner, similar to any other injuries suffered by innocent motor-vehicle victims in Alberta," said Fred Kozak, the lawyer who represented the two women.

Kozak said he hopes the government will work to create a new, just policy.