Assessing the 2020 Minor Injury Regulation Amendment
Last year, in a position paper titled "Driving Change: Auto Insurance that Works", the Insurance Bureau of Canada (IBC) lobbied Premier Jason Kenney's United Conservative Party (UCP) government to immediately implement two specific changes to Alberta motor vehicle accident (MVA) injury law, changes that IBC estimated would reduce auto insurer claims costs in the province by over a quarter of a billion dollars per year:
1. Amend the Minor Injury Regulation (MIR) to clarify that the pain and suffering compensation cap for minor sprains, strains and whiplash injuries suffered in MVAs applies to clinically associated sequelae of those minor soft-tissue injuries, whether physical or psychological in nature; and 2. Adjust the pre-judgment interest (PJI) rate for non-pecuniary damages, set at 4% per annum in the Judgment Interest Act, to a percentage that changes annually based on the prevailing interest rates (as is prescribed by the Judgment Interest Regulation for PJI on pecuniary damages). Given that IBC, ably represented by well-connected lobbyists Celyeste Power (former press secretary to Jason Kenney) and Nick Koolsbergen (the UCP's 2019 election campaign chair), had successfully persuaded the UCP government scant months after the 2019 election to lift the lid on the annual premium increases insurers could charge Alberta motorists, it is perhaps unsurprising that UCP Treasury Board & Finance (TBF) Minister Travis Toews promptly and obediently attended to the insurance lobby's desired MIR and PJI amendments. By Order in Council 333/2020, Minister Toews amended the MIR to clarify that for MVAs occurring on or after November 1, 2020, the minor injury cap applies to any "clinically associated sequelae" of a minor sprain, strain or whiplash injury, "whether physical or psychological in nature" (wording lifted verbatim from the IBC position paper). The TBF Minister also introduced and shepherded through the legislative assembly Bill 41, which passed third reading on December 2, 2020 and received Royal Assent a week later. The PJI amendment demanded by the insurance lobby in its "Driving Change" document was an integral component of the Bill. The steep premium hikes made possible by the UCP government removing the rate cap, plus the changes to the MIR and to PJI legislation (enacted precisely to insurance lobby specifications), in addition to the marked reduction in traffic (and a corresponding reduction in traffic accidents, injuries and fatalities) due to the COVID-19 pandemic, have combined to bestow upon Alberta's auto insurance industry windfall profits expected to exceed a billion dollars per year. Accordingly, our provincial government is wisely advised to pause for at least a couple of years to fully and fairly evaluate the impact these factors will have on our auto insurance system's sustainability before considering any more so-called "reforms" designed to yet again revictimize innocent ordinary Albertans (mostly women and children) wrongfully injured by reckless drivers in order to further enhance the already robust bottom lines of highly profitable auto insurance corporations. In our last blog post, we examined the PJI amendment. Let’s now turn to an assessment of the MIR amendment. While the term "clinically associated sequelae" is not defined in the MIR, one may reasonably 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 injury -- but not to other psychological issues including driving phobia and PTSD which arise independently from the minor injury, or of course to different physical injuries such as concussions and broken bones. It is also fair to say that chronic pain by its very nature quite evidently 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 (DTPR), the sister regulation to the MIR, which sets out therapy regimens to help heal minor soft-tissue injuries within 90 days post-MVA. Alberta courts (see Morrow v. Zhang 2009 ABCA 215) and the Supreme Court of Canada (see Nova Scotia WCB v. Martin 2003 SCC 54) 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 medicine and law, is described as pain persisting more than 3 to 6 months post-accident (see McLean v. Parmar 2015 ABQB 62 and Jones v. Stepanenko 2016 ABQB 295). The Alberta government obviously is well aware of this, and thus properly and intentionally did not include "chronic pain" in the MIR. Therefore, chronic pain, established by proof on a balance of probabilities, removes a claimant from the MIR (and from the DTPR), as do any injuries which are expected to leave a plaintiff with diminished enjoyment of, and/or ongoing discomfort during, the injured MVA victim's performance of any normal activity of daily living (see Sparrowhawk v. Zapoltinsky 2012 ABQB 34). Similar wording to Alberta's recent MIR amendment is found in the high premiums, low benefits hybrid no-fault private auto insurance system in Ontario, specifically in that province's Minor Injury Guideline (MIG) and Statutory Accident Benefits Schedule (SABS). A "minor injury" is defined in section 3 of the SABS as "a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The MIG provides a "functional restoration model", outlining a 12 week treatment program for those sustaining minor injuries in a MVA (much like the Alberta DTPR's 90 day "protocols" treatments). In the case of T.S. v. Aviva General Insurance Canada 2018 CanLii 83520 (ON LAT), the Executive Chair of Ontario's Licence Appeal Tribunal logically and correctly concluded that chronic pain (pain of more than 3 to 6 months duration) is not captured by the SABS definition of "minor injury" and, in turn, "clinically associated sequelae". This reasoned decision has been followed in numerous Ontario cases ever since (see for eg. P.L. v. Aviva Insurance Canada 2019 CanLii 22223, Z.L. v. Northbridge Personal Insurance Corporation 2019 CanLii 58161, N.B. v. The Personal Insurance Company 2019 CanLii 101612, A.A. v. Technology Insurance Company Inc. 2020 CanLii 12719 and A.H. v. TD General Insurance Company 2020 CanLii 12773), and the same reasoning equally applies to the substantially similar 2020 Alberta MIR amendment.