As claims increasingly require assessment of the minor injury cap one area of debate that has arisen is whether the cap reflects the top end in a range of damages or it is simply a cut-off amount. In the unreported decision of Park v. Jordan (QB 0801-00138), the Court addresses this issue that arises under the Minor Injury Regulation, Alta. Reg. 123/2004 (the “MIR”).
Some take the position that in practice the pre-cap range is now squeezed into a new range from $0 to the specified cap amount. In this scenario, the cap represents the quantum available for the most serious injuries and the range is squeezed in below that point to reflect a new range of decreasing severity.
Others take the position that the cap represents a cut-off. Whatever the appropriate damages were prior to the cap, any amount above the specified cap is cut off. In this scenario, if prior to the cap the injury was worth $6,000 or $50,000, the claimant is entitled to any amount up to and including the cap. If the claim is so minor that it would have been worth less than the cap, then that is the entitlement.
Of note, the assessment in either case requires an assessment as to the value of the claim in the absence of the cap. The only question is whether to squeeze or cut. We note that as time progresses and inflationary adjustments are taken into account, it may be that the cap becomes the minimum award under the cut-off interpretation.
In Park, supra, the Court had to assess both minor and non-minor injuries. The court addresses the cap mechanism as follows:
The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided case law, then that amount of damages is reduced to $4,000. If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000…any claim that previously would have been worth $4,000 or more is not somehow assessed and pro-rated on the basis of how it measures against the worst possible minor injury.
This early decision on the issue suggests that court will cut, not squeeze. Based on our review of the legislation we do note that there is some room to argue that application of the cap is different if there is assessment of only minor injuries. Although it will be necessary to monitor decisions to see how courts treat this as time goes on we consider it likely that, in the end, the cap will be treated as a cut-off not a new top end of the range for injuries that are properly considered as a “minor injury” under the MIR.
Finally, we note that the court reduced the capped minor injury amount to account for contributory negligence. This favours the defendant because the actual damage amount is reduced after the cut-off as opposed to being applied to the overall damage amount. Again, we will have to see how courts apply this in the future.