Practitioners are likely aware of the work of the Alberta Automobile Insurance Advisory Committee (AAIAC) and the attendant uproar regarding the proposed “no-fault” insurance model. Many people weighed in, and in March 2020, on behalf of practitioners, the Alberta Branch of the Canadian Bar Association initially weighed in on the process. They expressed concern regarding the process of the review of the insurance regime, as well as the need to balance the issue of claim cost and fairness.
In October, the AAIAC released a 536-page report concluding that injury settlements and litigation costs are responsible for escalating auto insurance premiums in Alberta, and it recommended that victims of auto collisions would be better off under a no-fault system where an independent traffic injury regulator settles their claims. While the province has advised it is not ready to take the huge steps recommended prior to further consultation, it has introduced draft legislation to address some of the AAIAC recommendations.
The newly announced Bill 41, the Insurance (Enhancing Driver Affordability and Care) Amendment Act, was expected to introduce a no-fault regime but has not done so… yet. This is a quick primer regarding the changes anticipated to the insurance regime as soon as they come into force.
The Alberta Legislative Assembly tabled Bill41on October 29, 2020, and it passed second reading on November 18, 2020.
The following substantive changes to the Insurance Act, R.S.A. 2000 c. I-3 are important regarding personal injury damages:
- Unless with leave of court or otherwise agreed upon by all parties, Bill 41 limits the number of damages experts to be called by limiting claims under $100,000 to one expert and report (from the same expert). For claims above $100,000, reports from experts are limited to a maximum of three experts on the injury damages. Additionally, parties may rely on a joint expert report.
The party seeking leave to call additional experts must provide the name and scope of expertise of any proposed additional expert, as well as records supporting the need for additional evidence.
- Two big changes are now in place regarding prejudgment interest:
- As opposed to the date of a motor vehicle accident, the new act limitsthe start date for prejudgment interest on non-pecuniary damages to the earlier of the date the plaintiff serves the defendant(s) with the claim and the date the plaintiff provides the defendant’s insurer with written notice of the claim.
- Bill 41 changes start date for prejudgment interest on non-pecuniary damages. Specifically, interest will only accrue from the earlier of the date the plaintiff serves the claim and the date the plaintiff provides the defendant’s insurer with a written notice of the claim – as opposed to the date of the subject accident.
- Bill 41 also changes the interest rates for non-pecuniary for loss or damages as they will henceforth be calculated at the same rate as the prescribed interest rate on pecuniary damages.
- In addition to the foregoing, Bill 41 provides for direct compensation by an insurer for property damage in an accident involving more than one insured vehicle that are owned by different persons.
On a related note, by Order-in-Council 332/2020 of October 30, 2020, the Lieutenant Governor in Council amended the Diagnostic and Treatment Protocols Regulation (AR 116/2014) to provide:
- a $1,000 cap on the aggregate expenses payable or recoverable under the protocols in relation to adjunct therapy (i.e., therapy received from one or more of a dentist, an occupational therapist or a psychologist);
- that visits to adjunct therapists do not count towards the combined total of physical therapy, chiropractic and adjunct therapy visits permitted under the protocols; and
- an in-person visit to a health care practitioner or another person authorized to provide treatment under protocols constitutes a single visit, irrespective of the number of injuries treated during the visit.
By Order-in-Council 333/2020 of October 30, 2020, the Lieutenant Governor in Council amended the Minor Injury Regulation (AR 123/2004) to extend the definition of:
- a “certified examiner” to include a dentist; and
- a minor injury to include 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”.
Personal injury practitioners should keep an eye out for more changes as it is apparent this is not the end of changes to the insurance regime in Alberta.