On October 29, 2020, the Alberta Government introduced Bill 41, the Insurance (Enhancing Driver Affordability and Care) Amendment Act, 2020. In addition, new Orders in Council enacted changes effective November 1, 2020, to the Minor Injury Regulation, Diagnostic and Treatment Protocols Regulation, and Automobile Accident Insurance Benefits Regulation, among others.
Below, we provide an overview of the key changes that are proposed in both Bill 41 and the Orders in Council.
If passed, Bill 41 would limit the number of experts that can be used in motor vehicle accident injury claims. This amendment would apply to every proceeding resulting from a motor vehicle accident injury commenced on or after January 1, 2021. In summary, subject to the regulations, Bill 41 proposes that:
- Where the claimed damages are $100,000 or more, parties are limited from calling more than three expert witnesses and submitting more than one report per expert called on motor vehicle injury damages.
- Where the claimed damages are $100,000 or less, parties are limited from calling more than one expert witness and submitting more than one report from that expert on motor vehicle injury damages;
- There are some exceptions to the above limits, such as:
- At trial, a party may tender expert evidence of one or more additional experts with the consent of all other parties;
- If the parties call a "joint expert" as defined; and
- On application by a party, the Court may permit a party to call more expert evidence or rely on more expert reports if the conditions set out in the bill are satisfied.
Direct Compensation for Property Damage
Bill 41 proposes a 'no fault' system which limits an insured's right of action solely as against their insurer to recover damages to their automobile, contents, loss of use, and removes the insurer's right of subrogation against the at-fault party except where permitted by the regulations.
Bill 41 would also see a change in the rate and start date for pre-judgment interest on non-pecuniary "pain and suffering" damages from an automobile collision. Pre-judgment interest would not be awarded for any period before the earlier of:
- the day on which the Statement of Claim is served on the Defendant, and
- the day on which the Plaintiff provides written notice to the insurer of the Defendant of the Plaintiff's intention to make a claim in respect of loss or damage from bodily injury or death.
Further, Bill 41 proposes that interest in respect of damages for non-pecuniary loss in an action for loss or damage from bodily injury or death, arising directly or indirectly from the use of operation of an automobile must be calculated in the same manner as interest awarded on pecuniary damages.
Orders in Council
In addition, new Orders in Council enacted changes effective November 1, 2020, to the Minor Injury Regulation, Diagnostic and Treatment Protocols Regulation, and Automobile Accident Insurance Benefits Regulation, among others. Important changes include:
Minor Injury Amendment Regulation
- The definition of a 'certified examiner' now includes a dentist;
- The definition for a minor injury has been widened and is now defined as a sprain, strain or WAD injury "caused by the accident that does not result in a serious impairment and includes, in respect of a sprain, strain or WAD injury that occurs on or after November 1, 2020, any clinically associated sequelae of the sprain, strain or WAD injury, whether physical or psychological in nature, caused by the accident that do not result in a serious impairment".
Diagnostic and Treatment Protocols Amendment Regulation
- Access to additional health professionals such as dentists, occupational therapists, and psychologists as providers of adjunct therapy, and implementing a $1,000 limit on expenses payable for such therapy.
Automobile Accident Insurance Benefits Amendment Regulation
- Increasing the limits under various headings for recoverable expenses, payments and benefits.
If you have any questions about the new or proposed legislative changes, and the impact they have on your rights, please contact a member of Miller Thomson's Personal Injury Group.
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Originally Published by Miller Thomson, November 2020
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