McCourt Law Offices has previously expressed our gratitude to Premier Kenney and UCP MLAs for insisting that justice for innocent Albertans injured by reckless drivers not be sacrificed merely to please certain well-connected, Ontario-based auto insurance lobbyists. In light of a flurry of activity on this matter the last week of October 2020, we want to specifically thank victims’ rights advocates in government caucus (including injury lawyer Mickey Amery) and in cabinet, particularly Justice Minister Kaycee Madu QC, for their tireless efforts behind the scenes to ensure that auto insurance legislation and regulations justly reflect a FAIR Alberta.
Briefly recapping the aforementioned flurry of events, on October 29 the predictably biased Auto Insurance Advisory Committee report was released, a repetitive 500+ page screed penned by Shelley Miller (feat. Larry Ohlhauser & Chris Daniel), confirming that Ms. Miller’s notorious and long-standing affection for needless tort deform and unconservative no-fault schemes remains intact. Credit where due, the voluminous report does have some recommendations worth saving from the trash bin, most of which can be found in our firm’s submission to the AIAC earlier this year. Also on October 29, Bill 41 was introduced in the Alberta Legislative Assembly, a bill which if passed will help reduce insurance litigation expenses by restricting the number of expert witnesses in motor vehicle accident (MVA) proceedings, by streamlining property damage claims, and by bringing prejudgement interest on general damages in line with PJI on specials. On October 30, regulatory amendments (which took effect November 1, 2020) were enacted by Orders in Council, making inflationary adjustments to some Standard Auto Policy Section B medical/disability benefits, adding dentists to the list of caregivers who may act as Certified Examiners, and clarifying that minor sprains, strains and whiplash injuries suffered in MVAs occurring on or after November 1, 2020 include “clinically associated sequelae” of those soft-tissue injuries. Currently, pain and suffering compensation for these minor injuries is capped at a little under $5300. While the term “clinically associated sequelae” is not defined in the Minor Injury Regulation (MIR), it is fair to surmise that it refers to those physiological and/or psychological consequences typically arising from an acute traumatic MVA-induced minor soft-tissue injury such as pain, discomfort, bruising, inflammation, tenderness, weakness, fatigue, limited range of motion, headaches, sleep disturbance, and mild depressive symptoms secondary to said minor physical injury, but not to other psychological issues such as driving phobia and PTSD which arise independently from the minor injury, or of course to different physical injuries including bone fractures and concussions. It is also fair to say that chronic pain by its very nature quite obviously is NOT a “clinically associated sequela” of a minor sprain, strain or whiplash under the MIR, nor is chronic pain an injury treatable under the Diagnostic and Treatment Protocols Regulation (the sister regulation to the MIR, which sets out therapy regimens to help heal minor soft-tissue injuries within 90 days post-MVA). As we advised the UCP government a year ago, Alberta courts and the Supreme Court of Canada have made it abundantly and unanimously clear that by definition, a “minor injury” does not (and, in order to be constitutionally valid, MUST NOT) include chronic pain (which, as a matter of both law and medicine, is defined as pain persisting more than 3 to 6 months post-accident). The government is well aware of this, and thus properly and intentionally did not include “chronic pain” in the MIR. Accordingly, chronic pain, if established by evidence on the balance of probabilities, removes a claimant from the MIR (and the DTPR), as do any injuries which are expected to leave a plaintiff with diminished enjoyment of, or ongoing discomfort during, the injured person’s performance of any normal activity of daily living. To conclude, McCourt Law Offices reiterates our sincere appreciation that in accordance with our advice to UCP MLAs in an open letter six months ago, genuinely conservative politicians like Justice Minister Madu (who happens to be Mr. McCourt’s MLA) wisely intend to leave odious schemes like turfing tort law in favour of a no-fault system to socialist governments such as BC’s hapless Horgan NDP regime. Our Justice Minister knows that under a no-fault insurance system, compensation would be forcibly confiscated from innocent Albertans (mostly women and children) hurt by reckless drivers and then redistributed to guilty wrongdoers in the form of enhanced (on paper at least) benefits and to the multibillion dollar insurance industry in the form of padded profit margins. This would be unjust, unnecessary, unconservative and unAlbertan. We live in a province that values individual rights, law and order, and the belief that wrongdoers must be held responsible for their actions and must fully and fairly compensate those they hurt. Albertans know there is a price to be paid for negligence causing harm, and that our government should not rob from the innocent to enrich the guilty. Thanks also to the thousands of innocent injured Albertans such as Conservative MP Kerry Diotte’s wife Clare, who kindly took the time to speak out on this important issue, reminding our actually conservative provincial politicians that MVA tort law is a matter of justice best not left to insurer-friendly beancounter bureaucrats in the TB&F Ministry, whose tax-funded time would be better utilized working on reducing our all-time high public spending deficit.