News Articles

PERSONAL INJURY AND YOUR RIGHT TO A LAWYER

Since its inception on October 1, 2004, the Minor Injury Regulation has created a great deal of public misperception. Unfortunately, injured people are no longer clear about their right to compensation or their right to a lawyer.

The Minor Injury Regulation sets up a system for people who have suffered a minor personal injury. Minor injury has been defined as a sprain, strain or whiplash injury. So far, this definition has only been applied to an injury involving the neck area. There is also a system of "protocol" in place whereby the injured party must take certain steps to address the "minor injury" claim within a period of 90 days.

The difficulty with this system is that doctors must rush to diagnose patients in order to comply with this new scheme. Furthermore, some of the injuries suffered may not be immediately noticeable. Certain injuries may not reveal themselves until months after the accident.

A second difficulty is that the legislation has given people the impression that they must settle for $4,000 if they are hurt. This is not necessarily true. As mentioned earlier, injuries that are not related to the neck are arguably not affected by this legislation. Signing a Release right away may compromise your ability to claim for these injuries.

The Alberta Courts are in the process of reviewing the Minor Injury Regulation. On September 28, 2005, the Court of Queen's Bench in Calgary considered whether the legislation denied injured people the medical services they deserve in order to fully recover. There is also a question of whether this legislation interferes with an injured party's quality and enjoyment of life. All of these issues strike at the heart of our Constitution. Three more similar cases will be heard in Edmonton on October 31, 2005.

In Ontario, the legislation has been in place for 15 years. Over time, the Ontario courts have made efforts to get around the legislation by treating injured parties generously and avoiding the classification of "minor injury" where possible.

At this point, it is unclear how the court will deal with the above-noted problems. In the meantime, people should keep in mind that they are not obligated to sign a Release and settle their personal injury claim for $4,000 at the request of an insurance adjuster. Instead, it would be wise to see a physician as soon as possible and attend a consultation with a lawyer who specializes in personal injury.

By Lani Rouillard
October 26, 2005