The Lawyers Weekly - June 25, 2010

The Supreme Court of Canada’s recent decision not to grant leave to appeal the “cap” challenge cases has crystallized the existence of the minor injury regulation (MIR) in Alberta. Counsel must now move forward within an entirely new system for injury claims arising from motor vehicle collisions.

Counsel and the Alberta judiciary must determine what injuries may be capped, analyze the certified medical examination process, decide whether the cap is a maximal award or simply reduced damages as well as how to approach a “stacking” of claims outside the cap, among other issues.

The definition of a minor injury for auto collisions in Alberta is a sprain, strain, or a whiplash-associated disorder (WAD) injury other than one that exhibits one or both of objective, demonstrable, definable and clinically relevant neurological signs; or a fracture or dislocation of the spine caused by that accident that does not resolve in a “serious impairment” (MIR, s. 1(h)).

This definition is intended to be exclusive. However, it remains unclear in Alberta whether chronic pain syndromes, vertebral disc injuries, mild traumatic brain injuries, temporomandibular joint injuries and other common collision injuries will be included in the definition.

Defining ‘serious impairment’

A further issue with the definition of minor injury is determining what is meant by “ser-

JAMES
CUMING

“

The future of motor vehicle collision litigation in Alberta will be a drastic departure from the prior open tort regime.

ious impairment.” The statutory definition of serious impairment indicates that the impairment must be of a physical or cognitive function that results in a substantial inability to perform the essential tasks of the claimant’s regular employment, occupation, profession, training, education or normal activities of the claimant’s daily living.

Although the definition itself
attempts to guide the courts in
the interpretation of “serious
impairment,” there are a num-
ber of terms which are open to
debate, including “serious,”
“substantial inability,” “essen-
tial,” “reasonable efforts,” “nor-
mal activities,” “ongoing since
the accident,” and “improve
substantially.” There is also the
issue of whether these terms
should be looked at subjectively
or objectively by the court.

Certified medical examinations

Within the protocols of the MIR, there is a dispute resolution mechanism known as a certified medical examination (CME). If a claimant and defendant disagree as to whether an injury sustained by the claimant as a result of an accident is a minor injury, either party may give notice in a prescribed form and request a certified medical examiner to determine whether the claimant’s injury is a sprain, strain or WAD injury; and if the claimant’s injury is determined to be such, whether the sprain, strain or WAD injury results in serious impairment.

Refusal to attend the CME
deems the plaintiff’s injury a
minor injury. All findings,
whether through the CME pro-
cess or the refusal to attend a
CME, result in a prima facie
determination of the plaintiff’s
level of injury. What is not clear,
however, is whether an insurer/
defendant can compel a plain-
tiff who has symptoms outside
the scope of the definition to
attend a CME.

James Cuming is the senior partner of Cuming & Gillespie in Calgary. He carries on a practice involving plaintiff personal injury and class actions. He is counsel on the application for the certified medical examination in Abbas. He thanks his partner, Craig Gillespie, and Barb Cotton of Bottom Line Research, for their assistance with this article.

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