The Operation of the Minor Injury Regulation / Alberta

Here is a key decision in Alberta referenced as Benc v. Parker, 2012 ABCA 249 which provides a great overview of the Minor Injury Regulation in Alberta.

The Court allowed the appeal in this case in part and concluded that the Plaintiff satisfied the requirements of s 9(1) of the Minor Injury Regulation, Alta Reg 123/2004 (“the Regulation”).  See decision for further details.



[2]               In 1972, basic automobile insurance coverage became mandatory in Alberta. In the years leading up to 2003, some segments of the public apparently expressed concerns about the affordability and availability of mandatory automobile insurance. Some argued that increases in premiums were the result of insurers’ increasing underwriting costs, believing them to be driven by escalating non-pecuniary damage awards, particularly relating to certain types of soft-tissue injuries.

Bill 53: Insurance Amendment Act, 2003 was introduced in November 2003, and received Royal Assent on December 4, 2003. Among other things, it amended the Insurance Act RSA 2000, c I-3  to provide authority for the creation of the Regulation as well as introducing mechanisms aimed at controlling increases in auto insurance premiums.

[3]                In Kubel v Alberta (Minister of Justice) 2005 ABQB 836 (CanLII) at para 26-29 [Kubel], Wittmann ACJ (as he then was) upheld the validity of the Regulation, finding that it did not exceed the scope of authority conferred on the Lieutenant Governor in Council through s 650.1 of the Insurance Act. He considered extensive evidence of legislative debates, stating in para 27:

A review of the relevant legislative debates relating to Bill 53, the Insurance Amendment Act, 2003 (no. 2) readily reveals the purpose of the legislation – to address rising automobile insurance rates in Alberta. More specifically, the Legislature’s overriding objective was to reform the Act to respond to “skyrocketing” rate increases so as to ensure that mandatory automobile insurance remained accessible to Albertans. At some level of increase, accessibility would be thwarted by the cost of automobile insurance. The purpose of the reforms was succinctly set out by the member for Edmonton-Mill Creek:

The issue of having unacceptable increases coming at us as they were in the spring             was quickly recognized by the government. It was time to do something about that. In fact, that’s what Bill 53 [the Insurance Amendment Act, 2003 (No. 2)] will do.

(Alberta, Legislative Assembly, Hansard (December 3, 2003) at 210 (Mr. Zwozdesky).

[4]               While that decision was not appealed, the Alberta Court of Appeal was given the opportunity to consider the constitutionality of the Regulation in Morrow v Zhang 2009 ABCA 213 (CanLII) (leave to appeal to the Supreme Court of Canada refused) in which it concluded that it did not infringe s 7 or s 15 of the Canadian Charter of Rights and Freedoms. The Court reviewed the genesis and purpose of the Regulation in paras 8-16 of that decision, arriving at the same general conclusions reached  by Wittmann ACJ in Kubel.

[5]               The effect of the Regulation is to limit financial compensation payable for certain types of “minor” injuries sustained in automobile accidents. It introduced a scheme which imposed a cap on the monetary compensation awarded for “minor” injuries, in the sum of $4000 (plus a cost of living adjustment for each year since 2007). It is not necessary, for the purpose of this decision, to describe what amounts to a “minor injury”; its definition may be found in the Regulation.

[6]               The Regulation also introduced a special procedure for the gathering of evidence which could limit litigation expense, whereby parties can gather evidence as to the nature and extent of a claimant’s injuries over and above those routes otherwise available through regular civil procedure.

[7]               In particular, the Regulation permits either party to give notice requiring that a certified examiner, a physician, assess the plaintiff for the purpose of determining whether the injury is minor. It creates a mechanism by which physicians may become certified examiners; see ss 15-17.  In the case of disagreement as to which certified examiner should conduct an assessment, either party may apply to the Superintendent of Insurance to make that selection; see s 8. The examiner selected must make reasonable efforts to schedule the assessment within 30 days of referral, at a time convenient to the claimant; see s 9(1). That section, which lies at the heart of the issues on this appeal, provides:

s 9(1) The certified examiner must make reasonable efforts to schedule the assessment of the claimant for a time that is convenient to the claimant and that is within 30 days of the         referral to the certified examiner.

[8]               Within 30 days of the assessment, the certified examiner must prepare and provide each of the parties with a copy of an opinion as to whether the plaintiff’s injury is a “minor injury”; see s  11. That opinion becomes prima facie evidence that the injury is or is not a minor injury; see s 12. Should a claimant fail to attend an assessment without reasonable excuse, the claimant’s injury is deemed to be a minor injury to which the cap applies; see s 10(3)(a). The Regulation does not expressly provide whether the determination as to whether a claimant has a reasonable excuse for failing to attend an assessment is to be made at or before trial, nor whether a claimant who has such an excuse can be required to attend a rescheduled assessment. While it sets out a number of specific periods within which certain procedural steps must be taken, it does not impose any time limitation, post-accident, within which the process must be commenced, other than to require that it not commence earlier than 90 days after the date of the accident (s 8(7)(a)).

[9]               The Regulation does not limit the use of other evidence generally available in civil litigation, including admissions obtained on questioning, production of medical and other records and so-called “independent medical examinations” provided by physicians engaged by the defendant. However, while neither party is confined to relying upon the opinion of the certified examiner at trial, such opinion no doubt bears considerable weight in settlement negotiations and trial preparation. Plaintiffs faced with reports opining that their injuries fall within the definition of “minor” must determine whether theprima facie effect of those reports can be rebutted by other available  evidence. Defendants faced with reports opining that injuries fall outside of the definition of “minor injury” lose a major negotiating lever. Either way, ensuing settlement negotiations may result in early settlement, without the need or expense of trial.

[10]           While critics question the extent to which the scheme has achieved either the goals of  reduced automobile insurance costs or efficient claims resolution, the Regulation is a valid exercise of delegated legislation and must be interpreted in that context. The damages cap undoubtedly gives rise to disagreements between claimants, hoping to recover more than the capped amount, and the insurers of defendants responsible for their injuries, who are motivated to prove that claimant’s injuries are minor injuries and thus that the cap applies. It is, however, in the interests of both parties to know well early on whether recovery will be limited to $4000, in determining whether trial is a cost-effective means of resolution of a claim. The Regulation establishes a method by which evidence may be efficiently obtained, so that these disagreements can be resolved as early as possible.

We look at the language of the legislation in Alberta:

Alberta Minor Injury Regulation


1 (h) “minor injury” in respect of an accident, menas

(i) a sprain,

(ii) a strain, or

(iii) a WAD injury

caused by that accident that does not result in a serious impairment;

1(j) “serious impairment”, in respect of a claimant means an impairment of a physical or cognitive function

(i) that results in a substantial inability to perform the

(A) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(B)  essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or

(C)  normal activities of the claimant’s daily living.

(ii) that has been ongoing since the accident; and

(iii) that is expected not to improve substantially;

Injury must be primary contributing factor

3.  For a sprain, strain or WAD injury to be considered to have resulted in a serious impairment, the sprain, strain or WAD injury must be the primary factor contributing to the impairment.

Determination of minor injury

4(1)  The determination as to whether an injury sustained by a claimant as a result of an accident is or is not a minor injury must be based on

(a) a determination as to whether the injury is a sprain, strain or WAD injury, and

(b) if the injury is determined to be a sprain, strain or WAD injury, a determination as to whether the sprain, strain or WAD injury results in a serious impairment.

(2) For the purpose of subection 1(a), the determination as to whether an injury is a sprain, strain o WAD injury must be based on an individual assessment of the claimant in accordance with the diagnostic protocols established under the Diagnostic and Treatment Protocols Regulation.

(3) For the purpose of subsection (1)(b), the determination as to whether a sprain, strain or WAD injury results in a serious impairment must take into account

(a) the claimant’s pre-existing medical history, and

(b) the matters referred to in section 1(j)(i) that relate to the claimant.

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