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					INSURANCE
M A T T E R S                                                                                                                                                                             SPRING 2004                   VOL.3/ ISSUE #1



                                                                                              Apportionment of Liability
                                                                                                in Left-Hand Turn Cases
                                                                                                                              By Rita R.Tripathy




                                                                                                                            C
                                                                                                                                             ases involving a collision between a left-turning driver and
                                                                                                                                             an oncoming driver almost always involve an
                                                                                                                                             apportionment of liability except in the most definitive of
                                                                                                                                             situations. Interestingly, the nature of apportioning liability
                                                                                                                                             in left-hand turn cases is so fact specific it may exclude
                                                                                                                              the consideration of case law. While this can make it difficult to
                                                                                                                              determine how courts will apportion liability, there are some important,
                                                                                                                              fact-specific considerations that help inform court decisions.
                                                                                                                              The starting point for determining responsibility in left-hand turn cases
                                                                                                                              is the Highway Traffic Act (HTA) for collisions that occurred on or before
                                                                                                                              May 19, 2003. On May 20, 2003, the new Traffic Safety Act, R.S.A. 2000,
                                                                                                                              c. T-6 (TSA) came into force. Pursuant to the TSA, the rules of the road
                                                                                                                              are now contained in the Use of Highway and Rules of the Road Regulation,
                                                                                                                              Alta. Reg. 304/2002 (Use of Highway Regulation), which also came into
                                                                                                                              force on May 20, 2003. Thus, collisions that occurred on or after May 20,
                                                                                                                              2003 are governed by the TSA and the Use of Highway Regulation.
                                                                                                                              Both the HTA and Use of Highway Regulation set out the competing
                                                                                                                              obligations between a driver making a left-hand turn and one
                                                                                                                              proceeding straight-through at an intersection. The obligation for the
                                                                                                                              left-turning vehicles is found at section 95(2) of the HTA and section
                                                                                                                              34(2) of the Use of Highway Regulation:            – continued on page 2




Summary of Recent Whiplash Cases and Damages Awarded .............................................................................................................................................................3
Application For A Jury Trial .........................................................................................................................................................................................................................4
What Bill 53 Means to Alberta’s Auto Insurers ......................................................................................................................................................................................5
Cap for Minor Injuries Awards ...................................................................................................................................................................................................................6
Recent Jury Trial Results in Surprising Damage Award ......................................................................................................................................................Back Cover
                                                                        ON RECORD
                                                                BURNET, DUCKWORTH & PALMER


– continued from cover
    HTA (collisions before May 20, 2003)                                                   a yellow light, the person will bear at least partial responsibility for
    95(2) A driver intending to turn left across the path of any vehicle                   a red light. In Waiting, the straight-through driver ran an obvious
    approaching from the opposite direction shall not make or attempt                      or late red light and was found 100% liable. A distinction will
    to make the left turn unless the turn can be completed in safety.                      definitely be drawn between an early or late red light. A late red
                                                                                           light is defined as one that has been red for quite some time, as
   Use of Highway Regulation (collisions on or after May 20, 2003)
                                                                                           opposed to one that has just changed from amber to red. According
   34(2) A person driving a vehicle shall not turn or attempt to turn                      to the expert for the left-turning vehicle in Waiting, the court
   the vehicle to the left across the path of an approaching vehicle                       found it significant that in proceeding through the intersection, the
   unless the turn can be completed in safety.                                             straight-through driver had changed lanes to go around a vehicle
The obligation for the straight-through driver is found at section                         which had stopped at the intersection. That said, when representing
108(1) of the HTA and section 53(1) of the Use of Highway Regulation:                      or insuring the left-turning vehicle, counsel should not assume a
                                                                                           straight-through driver running a red light, particularly when it is
   HTA
                                                                                           an early red, will be found to assume 100% of the liability.
   108(1) When a yellow light is shown at an intersection by a traffic
   control signal at the same time as or following the showing of a                        Speed
   green light, the driver of a vehicle approaching the intersection                       Speed is another factor for the oncoming, straight-through vehicle.
   and facing the yellow light shall stop before entering:                                 The courts will look at whether the straight-through vehicle was
      (a) the marked crosswalk on the near side of the intersection, or                    traveling above the posted speed limit and whether the speed was
                                                                                           appropriate in the circumstances, such as road conditions, visibility,
      (b) if there is no such marked crosswalk, then before entering
                                                                                           obstructions at the intersection, etc.
      the intersection,
   unless such a stop cannot be made in safety.                                            Independent Witnesses
                                                                                           It is important in these situations to be aware of the weight a court
   Use of Highway Regulation                                                               will place on evidence from an independent witness. Not
   53(1) When, at an intersection, a yellow light is shown by a traffic                    surprisingly, the straight-through driver and left-turning driver
   control signal at the same time as or following the showing of a green                  often have very different opinions about how the accident occurred
   light, a person driving a vehicle that is approaching the intersection                  and who is at fault. Frequently, conflict arises over the color of
   and facing the yellow light shall stop the vehicle before entering                      the light when the straight-through vehicle entered the intersection.
       (a) the marked crosswalk on the near side of the intersection, or                   There are several decisions where the courts relied on independent
       (b) if there is not any marked crosswalk, the intersection,                         witness evidence to make a determination on conflicting facts.
   unless the stopping of that vehicle cannot be made in safety.                      While shared liability between parties is common, there are cases
                                                                                      where a driver is apportioned 100% liability. Generally, a left-turning
The Alberta Court of Queen’s Bench recently dealt with the competing
                                                                                      driver will be 100% liable if the turn is made on a green light directly
obligations in Waiting v. Brown [2002] A.J. No. 684 (Q.B.), where liability was
                                                                                      in front of an oncoming vehicle. A left-turning driver will generally not
not apportioned. The court made clear that while the onus on the left-
                                                                                      be found 100% liable if speed and/or colour of the light are at issue for
turning driver is an extremely heavy onus, it does not mean that every time
                                                                                      the straight-through driver.
an accident occurs the left-turning driver is contributorily negligent. The
common theme throughout the case law, however, is that there is a very heavy          Case law reveals situations where a straight-through driver may be
onus on a left-turning driver to ensure that the turn can be executed safely.         found to be 100% liable, including:
There are certain factors that the courts consider in determining the                      where the straight-through vehicle was an emergency vehicle that
level of apportionment and the following should be considered when                         had its siren de-activated, therefore, not alerting the left-turning
assessing the liability position in a left-hand turn case:                                 driver of its presence;
     Proper Lookout                                                                        a straight-through driver who does not deactivate his turn signal
     Determining whether or not the straight-through driver and the                        from a prior turn and goes straight through the intersection; or
     left-turning driver were maintaining a proper lookout is generally
                                                                                           where the left-turning driver is paying proper attention and the
     a key point for the courts. For example, if there are other vehicles
                                                                                           straight-through driver enters the intersection on a late red.
     in the intersection attempting to turn, is the straight-through
     driver aware of them; is the left-hand turn driver looking to be
     sure the intersection is clear before proceeding? With respect to                       Author Rita Tripathy has prepared a comprehensive
     both drivers, are there vehicles blocking their views? The courts                    summary of the left-hand turn cases featuring all relevant
     have found negligence for failure of the drivers to slow down                         Alberta case law from 1990 to present, other provincial
                                                                                         appellate decisions from 1990 on, Supreme Court of Canada
     and pay particular attention to what is in the intersection.                            decisions from 1950 on, as well as some lower court
     Colour of the Light                                                                 decisions dealing with straight-through vehicles where speed
                                                                                         or colour of the light were key issue for the straight-through
     Apportionment of liability will often occur on the straight-through                     driver.These decisions formed the basis of Tripathy’s
     driver if he or she enters the intersection on an amber or red                        authorities at her recent, successful left-hand turn trial.
     light. As indicated in the HTA, there is a duty on the straight-                        For more information on this summary, contact Rita
     through driver to stop in the face of a yellow light unless it cannot                  Tripathy directly at (403) 260-0235 or rrt@bdplaw.com
     be done in safety. In general, it seems if a driver does not stop at

                                                                                  2
                                                                      ON RECORD
                                                              BURNET, DUCKWORTH & PALMER




            Summary of Recent Whiplash Cases
                and Damages Awarded
                                                                     By Ken G. Stewart




I
        n Ly v. Gilbert, 2001 CarswellAlta 1524
        (Q.B.), two plaintiffs, who were both
        36 years of age, sustained soft tissue
        injuries in a motor vehicle accident. The
        plaintiffs had pre-existing vulnerabilities
but this did not reduce their entitlement to
damages, as they were non-symptomatic prior
to the accident. The first plaintiff experienced
a decreased range of motion and tenderness in
her neck as well as a right shoulder strain.
The plaintiff’s injuries largely resolved after
one year with the exception of some minimal
stiffness in her neck and occasional back pain.
General damages were awarded at $20,000.
The second plaintiff suffered pain in his neck,
shoulders, lower back and head. Although the
plaintiff’s injuries initially affected his daily
life, his injuries were largely resolved within
one year. He was awarded general damages
of $25,000.
In Deliva v. Chrysler Canada, [2002] A.J. No.         within one month post-accident. The plaintiff        her involvement in athletic activities and her
248 (Q.B.), the plaintiff sustained relatively        was awarded general damages of $4,800. The           ability to function at work. The court noted
minor injuries when the airbag in his car             court noted that injuries lasting only a few         that the plaintiff’s commitment to recovery
activated without warning. The plaintiff              months should be assessed on a different scale       was greater than the average patient. The court
sustained abrasions to the face and arms as           than injuries which persist for over one year        awarded general damages of $55,000.
well as an injury to his upper back and neck.         post-accident.
These injuries resulted in headaches and neck                                                              In Prefontaine v. Martin, [2003] A.J. No. 827
                                                      In Krawchuk v. Mellor, [2003] A.J. No. 216           (Q.B.), the 52-year-old plaintiff sustained a
pains on a frequent basis during the first year       (Q.B.), the 24-year-old plaintiff was injured
post-accident. Subsequently, the plaintiff                                                                 sprain of the cervical spine when his vehicle
                                                      in a motor vehicle accident. The plaintiff had       was struck from behind. The plaintiff
continued to experience headaches and neck            a history of knee problems, depression, and
pain as often as three times a week. Doubt was                                                             experienced tenderness and restricted
                                                      occasional lower back pain. Following the            movement in his neck. However, these injuries
cast on the severity of the plaintiff’s injuries,     accident, the plaintiff experienced pain and
given that he only attended his doctor three                                                               were 80% recovered within the first two
                                                      restricted movement in her neck as well as           months. The plaintiff was fully recovered within
times. However, the court accepted that the           headaches. Although the acute injuries lasted
plaintiff had sustained mild to moderate soft                                                              approximately six months post-accident. The
                                                      for approximately two months, the intermittent
tissue injuries and awarded general damages                                                                court awarded general damages of $6,000.
                                                      problems persisted for about seventeen months.
of $10,000.                                           The injuries were also correlated with periods       In Rodriguez v. Patil, [2001] A.J. No. 1485 (Q.B.),
In Wong v. Mejia, 2001 ABQB 440, two plaintiffs       of depression that occurred during the first         the plaintiff sustained a whiplash injury in a
suffered injuries in a motor vehicle accident.        two years following the accident. General            motor vehicle accident. However, this soft tissue
                                                      damages, which included damages for loss of          injury developed into a condition known as
The first plaintiff suffered neck and upper back
                                                      housekeeping during the first two months post-       myofascial pain syndrome. The plaintiff was,
injuries of moderate severity. Although some
                                                      accident, were awarded at $18,000.                   therefore, expected to suffer from varying
intermittent pain was expected in the future,
the plaintiff’s injuries were essentially resolved    In Jensen v. Thompson, [2002] A.J. No. 1533          intensities of pain for the remainder of her life.
within the first three months post-accident.          (Q.B.), the plaintiff was a 55-year-old federal      The court noted that the plaintiff’s myofascial
Accordingly, she was awarded $5,500 for her           government employee who suffered a flexion           type of pain was not constant and that the
injuries. The second plaintiff suffered neck          extension (whiplash) injury when her vehicle         plaintiff had some restricted movement in her
and upper back pain that, with the exception          was rear ended. The injury had not resolved at       cervical spine and shoulder area. General
of some intermittent pain, largely resolved           the time of trial. Her injuries greatly restricted   damages were assessed at $38,000.

                                                                              3
                                                                   ON RECORD
                                                           BURNET, DUCKWORTH & PALMER




                                 Application
                                for a Jury Trial              By Perminder K. Basran




D
                efence counsels are increasingly using jury applications        In general, defence counsel can apply to have a matter heard by a jury
                effectively in low-speed motor vehicle accident cases. In       in any action where the amount in the statement of claim exceeds
                general, jury trials seem most effective in low-speed           $75,000, pursuant to Section 16 of the Jury Act. This amount is simply
                impact cases, as juries appear to be unsympathetic              the threshold amount that must be claimed and not the actual value of
                towards plaintiffs involved in low-speed collisions.            the claim at the end of the day. Generally, once defence counsel can
This is especially true where defence counsel can present the jury              establish that the claim is greater than $75,000, case law provides
with expert testimony indicating the collision was of such minimal force        there is a prima facie right to a jury trial and the onus is then on
that injuries were unlikely or, at most, minimal.                               Plaintiff’s counsel to prove the matter is too complicated for a jury.
Counsel planning to make an application for a civil jury trial should           Civil Practice Note (2) specifically requires that the Chief Justice, the
first familiarize himself or herself with Civil Practice Note (2) which         Associate Chief Justice or a judge assigned by one of these two Justices,
specifically addresses these applications.                                      hear all jury applications. Such applications must be made before a
                                                                                Certificate of Readiness or Conditional Certificate of Readiness is filed.
                                                                                There is some case law in Alberta allowing for a jury application to be
                                                                                made after the filing of the Conditional Certificate of Readiness in
                                                                                situations where there is a condition specifically stating such an
                                                                                application can be made prior to trial.
                                                                                The Notice of Motion for a jury trial should indicate the applicant is
                                                                                seeking a jury trial pursuant to Section 16 of the Jury Act and must
                                                                                address the points specifically raised by Civil Practice Note (2):
                                                                                     Will expert evidence be called?
                                                                                     How many experts are expected to be called?
                                                                                     From which areas of knowledge or experience will the
                                                                                     experts be called?
                                                                                     Will interpreters be required?
                                                                                     How many Court dates will be required for the trial if
                                                                                     a jury is ordered?
                                                                                When presenting the affidavit during the application, defence counsel
                                                                                should emphasize the simplicity of the case and that it is neither too
                                                                                technical nor complicated for a jury to hear. Plaintiff’s counsel will
                                                                                undoubtedly try to emphasize the complexity of the case to establish
                                                                                the application should be dismissed.
                                                                                If expert reports exist before the application is made they should be
                                                                                included in the affidavit for the court to review. Defence counsel should
                                                                                emphasize the expert reports are clear and not too complicated for a jury.
                      In general, jury trials seem most
                                                                                Applications can also be made before expert evidence is obtained. In
                          effective in low-speed impact                         this instance, defence counsel should argue there is nothing yet before
                            cases as juries appear to be                        the court to show it is too complicated for a jury. Plaintiff’s counsel can
                      unsympathetic towards plaintiffs                          bring the application back before the court to revisit the issue of
                       involved in low-speed collisions.                        whether a jury trial is still appropriate. The court always has the
                                                                                discretion to re-hear the application if new evidence suggests that the
                                                                                matter is too complicated.

                                                                            4
                                                                      ON RECORD
                                                              BURNET, DUCKWORTH & PALMER




A
              long with the new cap on
              minor injur y awards (see
              sidebar), Bill 53 alters the way
              auto insurance is offered,
              damages are assessed and, in
general, how auto insurance companies do
business in Alberta. Bill 53, the Insurance
Amendment Act, 2003 (No. 2), S.A. 2003, c.
40, received Royal Assent and is expected to
come into force later this spring.
Much of the Bill delegates change to regulations
that can be released and enforced without
review by the provincial legislature. Many new
and sweeping powers belong to the government
or the minister in charge, which affect
premiums, coverage, and handling of claims.
Insurance companies have lost considerable
discretion in choosing whom to accept as an
insured and whom to decline. New regulations
remove several rights from the insurance
companies, including the right to deny
someone coverage based on risk.
Looking ahead, Bill 53’s impact could ultimately
reduce the number of insurance companies in
Alberta by making the auto insurance business
less lucrative. At present, there are over 80 auto
insurers in the province covering a market of
close to one million insureds.
Some predict that as the auto insurance
business becomes less profitable, we could
                                                                   What Bill 53 Means
end up with a provincial government-run
insurance similar to the Insurance Corporation                  to Alberta’s Auto Insurers
of British Columbia (ICBC) but does not                                                      By Joan D. Bilsland
incorporate a no-fault regime. In fact, the Alberta
government commissioned a poll in June 2003
that found 59% of Albertans were in favour
of adopting a provincial-run system. This poll        ADVERSE CONTRACTUAL                                    the insurance company gives notice
did not distinguish between a no-fault or fault-      ACTION                                                 that it is withdrawing from the
based system. The government did not release          Section 613.1 defines the new term “adverse            automobile insurance business; or
the results of the poll for six months. The           contractual action”. It means insurance                where permitted by regulation.
government has maintained that despite the            companies, agents or brokers are forbidden
                                                                                                        Most notably, an insurance company cannot
poll results, it will not become an auto insurer.     from refusing to issue or renew an insurance
                                                                                                        take adverse contractual action against the
                                                      contract, terminating a contract, or cancelling
PREMIUM FREEZE                                                                                          insured for being a bad risk. This means
                                                      a contract. An insurance company, agent or
The new section 661.1(1) authorizes the                                                                 coverage cannot be denied because the insured
                                                      broker cannot take adverse contractual action
government to issue regulations related to                                                              has had many car accidents. Unless the
                                                      except for the following defined reasons:
freezing auto insurance premiums. This freeze                                                           government subsequently spells out that reason
can be retroactive as was done in November                 the insured does not pay his or her          in the regulations, the insurance companies
2003 when the government froze premiums to                 premium;                                     are stuck insuring bad drivers whom they
October 2003 rates. The government could                   the insured does not tell the insurance      expect to have further, costly collisions. At
also issue a regulation that would require the             company who is the principal driver          present an insurance company can choose not
insurance company to refund to the insured                 of the vehicle;                              to cover someone, knowing that the driver
any overpayments as a result of the company’s              the insurance company lacks adequate         can obtain insurance from another insurance
non-compliance with the order.                             base capital;                                                         – continued on page 6

                                                                            5
                                                                    ON RECORD
                                                            BURNET, DUCKWORTH & PALMER




                                       Cap for Minor Injuries Awards
   Bill 53, the Insurance Amendment Act, 2003        can be changed without the usual process            advisor or committee to give an opinion
   (No. 2), S.A. 2003, c. 40, marks one of the       through the legislature as would be the             whether or not the injury is minor. BD&P
   most significant changes to the Alberta           case with a bill. This change through the           insurance lawyers expect considerable
   insurance industry in decades. The Bill is        regulations, which are not yet available,           litigation in future over the definition of minor
   the Alberta government’s response to public       is usually faster and subject to less public        injury and whether or not the injury is
   demands for limits on auto insurance              scrutiny than going through the legislature.        considered minor or major. Also in question
   premiums. One of the biggest changes is the       While more efficient, using regulations to          is where the regulations interfere with a judge’s
   cap on damages awards for minor injuries.         change the cap is also a more covert method         decision on minor or major injury and
   The government claims the changes will save       than going through the legislature.                 awarding suitable amounts for compensation.
   the auto insurance system approximately           Regulations would help the Government
                                                                                                         There is nothing in Bill 53 that specifically
   $250 million. Some predict that these savings     avoid future brouhaha similar to what was
                                                                                                         applies to a motor vehicle accident that
   will cause premiums to drop by 20%                witnessed in Fall 2003.
                                                                                                         occurred prior to its coming into force.
   compared to October 2003 rates.                                                                       However, the new section 661.4 contains
                                                     At press time, the government’s consultation
   The Bill was clearly fast tracked for passage     group is at work on defining a minor injury         sweeping provisions in the regulations
   through the Fall Session of the provincial        and taking comments from organizations              including a general power that a regulation
   legislature with First Reading on November        representing injured people, insurers,              could amend provisions of a previous or
   24, 2003 through to Royal Assent granted          lawyers and health care providers. Heading          amended act if the government considers
   December 4. The whole process through             up the group is Dr. Larry Ohlhauser, past           the change necessary to carry out the purpose
   the legislature took eight sitting days, one of   Registrar of the Alberta College of Physicians      and intent of section 661.4. Moreover, section
   the shortest legislative journeys in recent       and Surgeons. The government promises               661.6 provides that the minister (not the
   memory. The Bill is awaiting enforcement          that once the definition for minor injuries is      Lieutenant Governor in Council) may make
   but the government expects to bring into          approved, another actuarial analysis will be        regulations regarding the transition of any
   force the legislation, including regulations,     conducted to finalize the new rate structure.       matter from the previous Act to the amended
   sometime in Spring 2004.                                                                              Act to deal with any difficulty or impossibility
                                                     Through regulation, the government will set         resulting from the transition. As of April 13,
   The new section 650.1 will likely be the          up a system for categories of injuries and          2004, the sections covering the cap on minor
   most controversial. It sets out the framework     assessment that could include a review              injury awards are not in force.
   for defining minor injuries and limits the
   maximum damages award to a fixed sum.
                                                     REFERENCES
   The government has announced that the
                                                     Government of Alberta, News Release, “Alberta Consumers to Benefit from Sweeping Auto Insurance
   cap on compensation will be $4,000 for
                                                     Reforms Introduced by Alberta Government” (November 19, 2003), online: Government of Alberta
   minor injuries. Through consultation with         http://www.gov.ab.ca/acn/200311/15502.html
   organizations and interested groups, it will
                                                     Government of Alberta, News Release, “Auto Insurance Reforms to Benefit Consumers” (December
   define what are minor injuries.
                                                     10, 2003), online: Government of Alberta http://www.gov.ab.ca/home/index.cfm?page=609
   Both the amount of the cap and the definition     Government of Alberta, News Release, “Alberta Consumers to Benefit from Sweeping Auto Insurance
   of minor injuries will be found in the            Reforms Introduced by Alberta Government” (November 19, 2003), online: Government of Alberta
   regulations, not in the statute, and therefore    http://www.gov.ab.ca/acn/200311/15502.html.



– continued from page 5
company specializing in high-risk drivers (facility insurance). Given Bill             refusing to process an application for auto insurance,
53’s general direction, it is apparent the government will not provide this            refusing to issue a contract,
out for the insurance companies in the future.
                                                                                       refusing to renew, or
INSURER’S WITHDRAWING                                                                  terminating or cancelling a contract,
FROM AUTO INSURANCE BUSINESS
The new section 661.2 punishes insurance companies for taking steps               the insurance company is considered to have withdrawn from the
that signify they are withdrawing from the auto insurance business                auto insurance business and can be fined up to $100,000. As well, the
without following proper procedure including notice to the                        government can list further actions in the regulations that constitute
Superintendent of Insurance. If the insurance company does anything               withdrawing from the business. Bill 53 does not describe enforcement
to reduce the amount of premiums by                                               or the means of monitoring for enforcement.

                                                                              6
                                                                ON RECORD
                                                        BURNET, DUCKWORTH & PALMER




ASSESSMENT AND TREATMENT                                                     chance to be heard if his or her insurance company agrees to a payout
OF BODILY INJURIES                                                           with which the insured disagrees. The new cap on minor injuries
Section 629 was amended and the government can now issue                     could encourage more settlements and likely more apportionment of
regulations for a system or process for examination, assessment,             liability between drivers. Insurance companies may wish to avoid
treatment and/or rehabilitation of bodily injuries suffered by the           legal fees and court costs on smaller claims when the cap is $4,000.
insured. These regulations will also govern payment of fees, levies or       With the disputes process an insured may challenge the fault assigned
assessments to fund this system.                                                                      and avoid higher premiums if his or her
                                                                                                      challenge is successful.
INCREASE IN SECTION B
BENEFITS                                             Previously, where an injured
                                                     party was awarded damages                          TRANSITIONAL PROVISIONS
Section B benefits now stand at a maximum of                                                         There is nothing in Bill 53 that explicitly
$10,000. Under the government’s reforms,              for future loss of income,
                                                                                                     applies to a motor vehicle accident that
the maximum would increase to $50,000 for            he or she would receive the
                                                                                                     occurred prior to its coming into force.
medical and rehabilitation services. This             sum of the award without                       However, the new section 661.4 contains
change would be part of the new regulations          having the amount reduced                       sweeping provisions in the regulations
pursuant to Bill 53.                                        by income tax.                           including a general power that a regulation
ADVANCE PAYMENTS                                                                                     could amend provisions of the previous or
TO INSUREDS                                                                                          amended act if the government considers the
Section 636 has changed allowing the government to issue regulations         change necessary to carry out the purpose and intent of Bill 53.
regarding court orders that require an insurance company to make             Moreover, section 661.6 provides that the minister, not the Lieutenant
payment to a claimant ahead of a court judgment. Moreover, the new           Governor in Council, may make regulations related to the transition
section 650.2 also allows for regulations regarding court orders that        of any matter from the previous Act to the amended Act to deal with
require the insurance company to make structured settlements on              any difficulty or impossibility resulting from the transition.
terms the court considers appropriate. Clearly, the regulations will
encourage early payment on awards and the use of structured                  CURRENT STATUS OF BILL 53 – ENFORCEMENT
settlements. The question remains, however, as to how the proposed           As of April 13, 2004, some sections of Bill 53 are now in force.
regulations may interfere with the court’s discretion and independence       Sections 17 and 20(a) came into force on December 4, 2003. Section
regarding damage awards, etc.                                                17 sets out the new premium freeze and section 20(a) includes a
                                                                             reference to the premium freeze.
DEDUCTIONS TO DAMAGES AWARD RELATED
TO INCOME TAX, ETC. BUT NOT RELATED TO                                       On January 26, 2004 sections 4, 6, 14, 23, 24 and 25 came into force.
                                                                             Section 4 replaces the current section 608, repeating the same
DISABILITY INSURANCE
                                                                             definitions of contract and insured but contains new definitions of
Previously, where an injured party was awarded damages for future loss
                                                                             accident, accident claim and basic coverage. The rest of these sections
of income, he or she would receive the sum of the award without
                                                                             deals with deductions on damages awards. Section 6 contains the
having the amount reduced by income tax. The new section 626.1
                                                                             new s. 626.1, deductions to damages award re income tax, etc. but not
states that the amount of an award will now be reduced by a sum
                                                                             re disability insurance, discussed above. Section 14 makes the current
equivalent to income tax that would have otherwise been paid on the
                                                                             s. 651(1), subrogation rights of the automobile insurer, subject to the
income. The award is also reduced by contributions to Canada Pension
                                                                             new s. 626.1(6) where the subrogation rights do not extend to
Plan (CPP) and premiums under Employment Insurance (EI) that
                                                                             deductions (on the damages award) made for income tax, etc. Sections
would have been payable with respect to lost earnings before and
                                                                             23 to 25 are transitional sections that prevent the application of s.
after the award, had the accident not occurred. The section does not
                                                                             626.1 to the Hospitals Act, the Motor Vehicle Accident Claims Act, and
spell out tax, contributions or premiums for how long before the
                                                                             the Workers’ Compensation Act.
accident – before award but after accident?
Section 626.1(6) removes the right of subrogation for disability             RESOURCES
insurance. The government brought in this change with little or no
                                                                             Government of Alberta, Feature Stories, “Auto Insurance Reforms to Benefit
consultation with stakeholders. There is no doubt that this change           Consumers” (December 10, 2003), online: Government of Alberta
will make disability insurance more expensive.                               http://www.gov.ab.ca/home/index.cfm?page=609
                                                                             Government of Alberta, News Release, “Alberta Consumers to Benefit from
COMPLAINTS DISPUTES RESOLUTION
                                                                             Sweeping Auto Insurance Reforms Introduced by Alberta Government”
Section 661.3 authorizes the government to issue regulations for             (November 19, 2003), online: Government of Alberta
dispute resolution where an insured can complain on various issues,          http://www.gov.ab.ca/acn/200311/15502.html
including fault, as determined by the insurance company regarding an
                                                                             Eva Ferguson, “Poll Backs Public Car Insurer” Calgary Herald (January 8, 2004)
accident claim. This disputes process would exclude determination of         B8; Government of Alberta, News Release, “Auto Insurance Reform on Track for
liability or amount of damages where an action is commenced or               Implementation in 2004” (December 30, 2003) online: Government of Alberta
likely to be commenced. This section gives the insured a voice or a          http://www.finance.gov.ab.ca/whatsnew/newsrel/2003/AutoInsurance1230.html

                                                                         7
                                                                                                    regarding an appropriate damage award,
                                                                                                    Madam Justice Phillips advised that it was up
                                                                                                    to the jury to decide what would be fair and
                                                                                                    reasonable. The jury, consisting of one man
                                                                                                    and five women, ruled that the pain and
                                                                                                    suffering experienced from Ms. Gagnon’s ankle
                                                                                                    injury and shoulder wound were worth
                                                                                                    $100,000. The jury reduced that figure by
                                                                                                    33% for contributory negligence and a further
                                                                                                    2% for a pre-existing condition. Ms. Gagnon
                                                                                                    was also awarded $7,500 for the medical and
                                                                                                    other expenses she had incurred. The
                                                                                                    Defendants have appealed the jury’s award.
                                                                                                    It is interesting to note that Plaintiff’s counsel
                                                                                                    used informal focus groups to identify themes
                                                                                                    that would resonate with a jury. She found that
                                                                                                    most people were not disposed to awarding
                                                                                                    someone damages for a fall in another’s
                                                                                                    backyard. This finding caused counsel to shift

Recent Jury Trial Results                                                                           the main focus of the trial on the conduct of the
                                                                                                    Defendants. As well, to avoid the trial from
                                                                                                    becoming too humorous, the focus group
in Surprising Damage Award                                                                          determined that the word “feces” was the best
                                                                                                    way to describe the dog poop. To keep the case
By Melissa Moulton Tennison
                                                                                                    interesting, Plaintiff’s counsel had photographs




A
               Calgary jury recently awarded    care to the Plaintiff pursuant to section 5 and     of the fall site blown up into poster size exhibits.
               Marie Gagnon $72,500 after       6 of the Occupier’s Liability Act, R.S.A. 2000,     The Defendants did not testify at the trial.
               she slipped and fell on dog      c.0-4. This shifted the onus to the Defendant       Accordingly, through the use of read-ins,
               feces in a backyard fracturing   and the jury ultimately found that Judy Frey        Plaintiff’s counsel was able to place the blame
               her ankle and tearing her        and Laurie Fulton had been negligent in failing     for the Plaintiff’s injuries on the Defendants
rotator cuff. Plaintiff’s counsel was able to   to dispose of the dog feces in their backyard.      who at discovery had refused to take any
establish that the Defendant owed a duty of     While the jury had asked for guidance               personal responsibility for their actions.




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