IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Hartling v. Nova Scotia (Attorney General) ,
2006 NSSC 225
Date: 20060728
Docket: SH 236705
Registry: Halifax
Between:
Helen Hartling, Melissa Gionet, Anna Marie
MacDonald and The Nova Scotia Coalition Against
No-Fault Insurance Society, an incorporated association
Applicants
v.
The Attorney General of Nova Scotia, representing
Her Majesty the Queen in Right of the
Province of Nova Scotia
Respondent/Applicant
v.
Insurance Bureau of Canada, an incorporated association
Intervenor
Judge: The Honourable Justice Margaret J. Stewart
Heard: July 6 & 7, 2006, in Halifax, Nova Scotia
Counsel: Louise Y. Walsh Poirier, Q.C., for the respondent
Barry J. Mason, Esq. and Glenn E. Jones, Esq., for the applicants
Jeff Galway, for the Intervenor (not appearing)
By the Court: Stewart, J.
[1] By way of Amended Interlocutory Notice (Application Inter Partes), the Attorney General seeks to strike or set aside three aspects of the Applicants' Amended Originating Notice (Application Inter Partes) mainly, portions of the main application on the basis that three of four Applicants, Helen Hartling, Anna Marie MacDonald and The Nova Scotia Coalition Against No-Fault Insurance Society are not aggrieved and/or have no standing, certain issues raised by the Applicants and several paragraphs of three supporting Affidavits filed by the Applicants in the main application.
[2] The Intervenor, Insurance Bureau of Canada supports the position of the Attorney General and did not participate in the application.
[3] After a lengthy exchange of letters and one Chambers application, the sections of the constitution breached, the sections of the challenged legislation, being the Insurance Act R.S. 1989, c.231, as enacted by the Automobile Insurance Reform Act S.N.S. 2003 c. 1, and the particulars of grounds necessary to show the points to be argued, all in compliance with the Constitutional Questions Act, R.S.N.S. 1989, c. 89 as amended, are now encapsulated in six constitutional and one ultra vires issue which formulate the nature of the terms to be asserted and the case to be met in the main application.
[4] The focus of this application has been narrowed by the Applicants’ conceding the issue of standing of The Nova Scotia Coalition Against No-Fault Insurance Society and withdrawing the Society from the main proceeding, abandoning the issues of discrimination under s. 15 of the Canadian Charter of Rights and Freedoms on the basis of mental disability and age, as well as the Attorney General no longer challenging Anna Marie MacDonald’s standing, as it relates to the first motor vehicle accident she was involved in.
[5] The issues to be determined by the Court, as stated and modified in the Attorney General’s Interlocutory Notice (Application Inter Partes), filed with the Court on May 5, 2006 and in the Amended Interlocutory Notice filed June 12, 2006 are:
(a) whether portions of the Amended Originating Notice (Application Inter Partes) should be struck out, or set aside pursuant to Civil Procedure Rules 5.04, 14.25, 25, 37.10 and 37.18, and under the inherent jurisdiction of the Court or such other authority as may apply, on the basis that Helen Hartling, Anna Marie MacDonald are not aggrieved, and/or have no standing to bring the application.
(b) whether the following grounds raised under Ground (3) of the Amended Originating Notice (Application Inter Partes) should be struck out pursuant to Civil Procedure Rules 14.25(1)(a), 25, 37.10 and 37.18, and under the inherent jurisdiction of the Court, on the basis they (I) disclose no reasonable cause of action, in particular, the following grounds:
(i) that by enacting Section 5(3)(na) of the Insurance Act, R.S., c. 231, as enacted by s. 4(b) of the Automobile Insurance Reform Act, S.N.S. 2003 (2nd Session), c. 1, the Legislature in effect abdicated, abandoned or surrendered legislative power contrary to Section 92 of the Constitution Act, 1867 thus improperly delegating legislative powers contrary to the Constitution; and,
(ii) in the alternative... that the Governor in Council exceeded its delegated powers under the Act with the result that the Regulations and the relevant portions of the Act are unconstitutional pursuant to the Constitution Act, 1867,
as particularized by the Applicants in letters sent to the Attorney General dated February 23, March 3, March 28, and April 3, 2006 (two letters), in response to the Attorney General’s written requests for particulars on January 31, February 28, March 10, March 31, April 3, 2006 and April 4, 2006, in the Attorney General’s Interlocutory Application for Particulars filed March 21, 2006, and in the Attorney General’s Brief therein dated March 24, 2006, all on file with the Court in this matter; and
(c) whether paragraph 10 of the Affidavit of Helen Hartling, paragraphs 7 and 8 of the Affidavit of Melissa Gionet and paragraphs 4, and 8 of the Affidavit of Anna Marie MacDonald, should be struck out pursuant to Civil Procedure Rules 14.04, 14.25(1), 38.02 and 38.11, on the grounds the impugned statements do not meet the requirements for an affidavit.
[6] With respect to applying C.P.R. 25, there is no agreed statement of facts. Only in exceptional cases may an application, under Rule 25.01, proceed without an agreed statement of facts (Knock v. Fouillard, [2004] NSCA 70). The Attorney General correctly points out, given that the documents on file with the court and the Statutes are matters of public record, in keeping with Haupt v. Eco- Nova Multia-Media Productions Ltd. et al. (2000), 190 N.S.R.(2d) 274; A.P.R. 274, this is such a case.
[7] With respect to C.P.R. 14.25(2), the McNeil affidavit filed by the Attorney General does not offend the rule; but, is in keeping with the Court of Appeal’s comments in Teale v. United Church of Canada at Woodlawn, Nova Scotia [1979] N.S.J. No. 23 para. 8. The affidavit is no more than an accumulation of documents/letters fine tuning the parties positions on the application. It does not relate to proof or disproof of the facts alleged in the claim. Counsel takes no issue with this analysis. The question is whether a claim in law is shown, assuming the facts to be true.
[8] As noted by the Court of Appeal in Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board) [1999] N.S.J. No. 258 at para. 28 & 29, the test on an application under Rule 14.25 is a stringent one. The applicant must establish that it is “plain and obvious” that the grounds in issue disclose no reasonable cause of action. A claim is to be struck out only if, on it’s facts, it is “absolutely unsustainable” or “ is certain to fail because it contains a radical defect”. The court also held that questions of law are appropriate for determination under Rule 14.25, in cases where the law is clear and provided no further extrinsic evidence is required to resolve the issues raised. Despite the Applicants’ position to the contrary, the two issues the Attorney General seeks to strike for showing no cause of action do not require further extrinsic evidence. The context of the issue is a matter of policy and not a matter for the courts. (Shannon (1937-38) 52 B.C.L.R. 179 @ p. 181). In addressing the Applicants' issue of the Regulations being unconstitutional, the issue assumes there was power to delegate by the Legislature to the Governor in Council and that the regulations are ultra vires because they were outside the purpose of the Insurance Act, whatever that purpose might be, with the result that the Regulations are unconstitutional. As in, Future Inns Canada Inc., supra, assessment of legal principles and distinguishable legal themes and weighing of jurisprudence can result in a determination without necessity of extrinsic evidence. It is a question of law.
Issue: Striking claim that S.4(b) violates S.92 of The Constitutional Act 1867 (improper delegation of legislative powers).
[9] The Applicants contend that S.4(b) of the Automobile Insurance Reform Act breaches ss.92(13) and (14) of The Constitution Act 1867. S. 4(b) which authorizes the Governor in Council to make regulations defining any word or expression used but not defined in the Insurance Act, supra, is an unconstitutional abdication or surrender of the Legislature’s power under s. 92 of The Constitution Act 1867, basically an improper delegation of legislative power to the Governor in Council by the Legislature. The Applicants’ argue the apparent restriction to words not already defined in the Insurance Act is really no restriction at all, as the Governor in Council is free to define “any” of the words which make up any particular definition found in the Insurance Act. Accordingly, the Applicants’ submit there are no meaningful limits put on the delegation of power to the Governor in Council, who is free to rewrite the entire Insurance Act in any manner it sees fit or, for that matter, completely nullify it. It is more than the delegation of some legislative powers to the Governor in Council. It is a complete abdication of power and therefore unconstitutional, as it is totally inconsistent with the intent of s. 92.
[10] For the Applicants it remains open for argument that the Legislature cannot delegate all of it’s legislative powers so that it cannot be said their claim that the Legislature has, by making this delegation, improperly abdicated its powers to the Governor in Council is ‘absolutely unsustainable’. Reference is made to the Alberta Court of Appeal in Credit Foncier Franco-Canadian v. Ross, [1937] 3 D.L.R. 365 determining delegation of legislative power to the Governor in Council which was sufficient to allow the Governor to completely nullify the Act to be ultra vires the Legislature; to Credit Foncier Franco-Canadian v. Ross, supra, not being referred to in and being distinguishable from the later Privy Council ruling in Shannan v. Lower Maitland Dairy Prod Bd [1938] A.C. 708 (P.C.); [1938] 2 W.W.R. 604, given the degree/nature of the power delegated; to Shannan supra, arguably not standing for the blanket proposition that any delegation of legislative power by the Legislature is constitutional no matter how broad or extensive it may be; and to the dicta in the Privy Council decision of Hodge v. The Queen (1883, 9 A.C. 117 (P.C.), describing the legislative power, as noted and commented upon by the leading constitutional scholar Peter Hogg, in Constitutional Law in Canada (looseleaf ed., Thomson Carswell) et Vol. I. at p. 14-3 suggesting that there are limits to the power of delegation.
[11] With respect to the latter point, Hogg in Chapter 14 at 14.1 (c) deals generally with powers of delegation as it relates to the provincial Legislature at pages 14-2 & 14-3 and states:
(c) Provincial Legislatures
Was this power of delegation inherited by the Parliament and Legislatures of Canada? An argument that the power had not been inherited in Canada was based on the premise that the powers of the Canadian legislative bodies had been delegated to them by the Imperial Parliament; since the Canadian legislative bodies were themselves mere delegates, they could not further delegate (or sub-delegate) their powers: delegatus non potest delegare. In Hodge v. the Queen (1883), the Privy Council rejected this argument. In that case, the Ontario Legislature had delegated to a Board of License Commissioners the power to make regulations for licensed taverns. The Privy Council held that the delegation was valid. It was erroneous, they held, to regard the powers conferred by the Constitution Act, 1867 on the provincial Legislatures as delegated powers. On the contrary, provincial legislative power was “as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow.”
The Privy Council's references to the plenitude and amplitude of colonial legislative power, and of its equivalence to that of the Parliament of the United Kingdom, suggested that there were no limits to the power of delegation. But the power actually delegated in Hodge – to license and regulate taverns – hardly called for a decision as to the outer limits of legislative power; and the Privy Council described the power at one point as “an authority ancillary to legislation” and as a “limited discretionary authority”. Thus the facts and some of the dicta invited an argument that even plenitude and amplitude may have their limits, and that a sweeping delegation might run into some, as yet unidentified, constitutional obstacle.
[12] It is to be noted however, as pointed out by the Attorney General, Hogg goes on in the next paragraph to say:
It seems clear, however, that sweeping delegations by provincial Legislatures are valid. For example, the conventional kind of natural products marketing statute simply confers on the Lieutenant Governor in Council the power to establish marketing schemes and boards to administer them, and leaves to the discretion of the Lieutenant Governor in Council the question of which products should be regulated, by what board and upon what terms. In Shannon v. Lower Mainland Dairy Products Board (1938), the Privy Council was faced with the argument that such a skeletal statute was an invalid delegation of “legislative powers”. This argument was rejected by their lordships as “subversive” of provincial legislative power and as inconsistent with the “supremacy” of the provincial Legislatures.”
[13] With respect to the Applicants' allegation that s. 4(b) of the Automobile Insurance Reform Act, (authorizing the Governor in Council to define any word or expression used but not defined in the Insurance Act), is an improper delegation of legislative power contrary to ss. 92(13) and (14) of The Constitution Act, 1867, the Attorney General submits the issue of unconstitutional delegation by the Legislature of s. 92 power has long been determined and resolved in constitutional law and no longer raises a reasonable cause of action and, therefore, should be struck from the Amended Originating Notice (Application Inter Partes).
[14] The Attorney General references the fact that later on in the chapter at subsection 14.2, Hogg becomes more specific. He deals with “limitations imposed by Constitution”, as it relates to delegation of legislative power, being the very issue here by stating:
(a) Delegation of legislative power
It goes without saying that the Constitution could impose limitations on the power of the Canadian legislative bodies to delegate their powers. What Hodge, Shannon and Gray establish is that the courts will not readily imply any such limitations. In particular, these cases establish that in Canada there is no requirement that “legislative” and “executive” powers be exercised by separate and independent bodies. A delegation cannot be attacked on the ground that it confers “legislative” power on the executive branch of government.16
[15] By way of footnote 16 to his position that delegation cannot be attacked on this ground, he specifically comments on Credit Foncier Franco-Canadien v. Ross, 3 D.L.R. 365 (Alta.A.D.) by stating it to be the one case to the contrary, “holding the legislative power may not be delegated but the case has been effectively overruled by the Privy Council in Shannan v. Lower Maitland Dairy Prod Board (1938), supra and the Supreme Court of Canada in Re Ciminal Law Amendment Act 1968-69 (Breathalyzer) [1970] S.C.R. 777.... and has never been followed.” In Credit Foncier the Alberta Court of Appeal dealt with a provision of the Radical Debt-Reduction Act which provided that “the Lieutenant-Governor-in Council may from time to time dictate that any kind or description of debt is a debt to which this Act does not apply.”
[16] In Shannon, supra for consideration was the provision of the British Columbia Marketing Act that permitted the government to establish marketing schemes under control of boards established by the Act and to determine the powers of the boards. In addressing the objection of the surrendering by the Provincial Legislature of its legislative power, the Privy Council, after emphatically stating:
“Within its appropriate sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to encounter the innumerable occasions in which Legislatures, Provincial, Dominions and Imperials have entrusted various persons and bodies with similar powers to those contained in this Act.”
went on to state:
“Martin, C.J. appears to have disposed of this objection very satisfactorily in his judgment on the reference and their Lordships found no occasion to add to what he there said.”
[17] In so stating, the Privy Council, without specifically referencing Credit Foncier, overruled it by adopting Martin, C.J.'s criticism and express disagreement with the reasoning and analysis of the Alberta Court of Appeal, (Shannon (1937-38) 52 B.C.C.R. 179 at p. 170). Chief Justice Martin stated:
“With great respect, therefore, I find myself unable to take the view of Gay's case that is expressed by the Appellate Division of Alberta in Credit Foncier Franco-Canadian v. Ross & Attorney-General for Alberta, [1937] 2 W.W.R. 353 which was invoked to support the attack upon the present statute.”
[18] Having acknowledged the Supreme Court of Canada in Re: George Edwin Gray (1918), 57 S.C.R. 150 upheld the constitutionality of delegating full power to legislate as opposed to simply the power to make regulations ancillary to the legislation, Credit Foncier, supra attempted to restrict and distinguish Gray's case on the basis of it being the War Measures Act. However, as argued by the Attorney General, the limitation of Gray, supra, to war time is precisely what Martin C.J. rejected in Shannon and the Privy Council approved.
[19] Indeed, holding to his position Hogg at 14-6 raises the prospect that it is possible that there is only one legislative power in Canada that cannot be delegated and that is the federal Parliament's power to levy taxes, as the Constitution provides that a Bill levying a tax must originate in the House of Commons. No taxes are being levied under the Insurance Act
[20] Similarly, in Delegated Legislation in Canada (the Carswell Co. Ltd, Ontario, 1989), Holland and McGowan state at pp. 115-116:
“That Parliament and the legislature may delegate legislative powers was resolved beyond any doubt by the Judicial Committee of the Privy Council in the former case of Hodge v. R. (1883) 9 A.C. 117.”
He then quotes from Hodge at p. 32 and like Hogg, confirms Credit Foncier’s, position that the provincial legislation was “an unauthorized and involved devolution of legislative power,” has never been followed and is viewed as overruled by the Privy Council in Shannon, supra.
[21] Delegating power to the Governor in Council to pass regulations defining words in the Insurance Act does not exceed the ability of the Legislature to delegate to the Governor in Council legislative power. The Privy Council and the Supreme Court of Canada have both stressed it is inconceivable as to what would be an abdication of the Legislature’s power. In Gray, supra, very extensive and extreme powers were delegated to the Governor in Council who basically controlled what was going to happen to the military at time of war and this was subsequently held not to be a unique factor distinguishing this case and the ability to delegate full power to legislate. The delegation by the Legislature to the Governor in Council of the power to define words in the statute and not even outside the statute is not such an inconceivable abdication. Leading constitutional expert Peter Hogg could only think of one possible example and interprets the case law to mean there is no limit to the Legislature’s power to delegate. A passing of regulations outside the purpose, intent and scope of the Insurance Act will be properly dealt with within the legislative framework, as a separate issue yet to be heard of ultra vires regulations.
[22] The claim of unconstitutional delegation by the Legislature of s. 92 powers is resolved in law and being devoid of all merit struck as disclosing no reasonable cause of action.
Issue: Striking claim that ultra vires regulations breach s. 92 of The Constitution Act, 1867 (Usurps power of the Legislature).
[23] The Applicants, in the alternative submit the Governor in Council exceeded its delegated power under the Insurance Act with the result that the Regulations are unconstitutional. In particular, the Applicants seek declaration that the Regulations are both ultra vires and unconstitutional. It is the Applicants' position in relation to the constitutionality of the Regulations that assuming s. 4(b) of the Insurance Act is constitutional, as the court has held no improper delegation of power, the Governor in Council made certain Regulations that are not only ultra vires but effectively usurp the power and function of the Legislature, as created by s. 92 of The Constitution Act, 1867. They dispute that “any Regulations made pursuant to the appropriate and constitutional authority of the Governor in Council, with such power to define words would technically be constitutionally valid”. The fact that the Governor in Council can exercise its power to define any word except those already defined so as in essence be able to rewrite the Insurance Act contrary to the Legislature's spirit, meaning and purpose means the Governor in Council effectively usurped the power and function of the Legislature. The Regulations in issue have redefined terms contained in the Insurance Act “in such a manner that they are inconsistent with the spirit, meaning, wording and purpose of the Act, resulting in an unreasonable, unfair and oppressive exercise of the purported power to make Regulations as to be upon any fair construction an abuse of power.” In so doing, the Applicants submit that the Regulations are not only ultra vires the Insurance Act but are also unconstitutional.
[24] Dealing with the allegation that, if the Governor in Council has enacted ultra vires Regulations (i.e. outside the scope of the Act), effectively usurping the power and function of the Legislature in breach s. 92 of The Constitution Act, 1867, the Attorney General submits there is no reasonable cause of action by which ultra vires regulations, per se, are thereby unconstitutional under s. 92 of The Constitution Act, 1867, and since the Applicants assume for purposes of this issue that the delegation of legislative power to the Governor in Council is constitutional, there is no question of the Governor in Council having usurped lawfully delegated power. Attorney General submits this issue should also be struck from the Amended Originating Notice (Application Inter Partes).
[25] The Attorney General is not seeking to address the issue of ultra vires Regulations at this time; rather, the Attorney General applies to strike the Applicants' allegation that the allegedly ultra vires Regulations, being certain definitions enacted by the Governor in Council outside the scope of the Insurance Act results in unconstitutionality. The assumptions for the Applicants are proper delegations of Legislative power and the enacting by the Governor in Council of Regulations outside the scope of the Insurance Act exist and those allegedly ultra vires Regulations are unconstitutional. The focus is on the ultra vires Regulations formulating the basis of the alleged unconstitutionality and alleged breach of s. 92 (13) and (4). The impugned Regulations are definitions of such words as, personal injury, resolve, substantial interference, all being definitions alleged to be ultra vires and unconstitutional.
[26] The Applicants have submitted no case law or legal authority supporting the issue of the Governor in Council exceeding delegated power resulting in ultra vires Regulations per se being unconstitutional. Nor, have they offered anything disputing the Attorney General's authorities in areas such as administrative law, which make no mention of such a result, while addressing areas where it logically would be raised. A studied approach such as that provided by the Attorney General negates the ability to reach a conclusion that a cause of action exists on what has been identified here. As argued, there is nothing judiciable about it.
[27] A review of the literature reveals regulations may be ultra vires, the Constitution, and they may also be ultra vires an Act; but, there is no indication that ultra vires outside of the Insurance Act as alleged here, gives rise by that reason alone to unconstitutionality. Neither does the review raise any reference to any general unconstitutionality of ultra vires regulations. (Dussault & Borgeat, Administrative Law, 2nd ed. (Carswell 1990), pp 153-154; H.W.R. Wade, Administrative Law, 5th ed. (Clarendon Press Oxford), p. 38).
[28] If the delegation of the Legislature's power in s. 4(b) of the Insurance Act to the Governor in Council is constitutional as is assumed, then there can be no issue as raised by the Applicants that the Governor in Council “usurped” powers validly delegated to it and conferred on it by express wording of the Legislature. A Legislative power lawfully delegated to the Governor in Council is lawfully exercisable by the Governor in Council. As argued by the Attorney General, it is not usurped from the Legislature but conferred by the Legislature. There is in fact no usurping of the Legislature's powers; rather, the Governor in Council exercised the very power delegated to it by Legislature in s. 4(b). Nor can it be argued that there is an unconstitutional usurping of the Legislature power when it has been assumed the power was constitutionally delegated. Having an issue of ultra vires Regulations does not violate s. 92 of The Constitutional Act, 1867. Ultra vires Regulations is simply an issue of improper exercise of delegated power, by the Governor in Council which will be dealt with as a grounds on the main application.
[29] As for the argument on unconstitutionality being other than ultra vires exercise of delegated power outside the scope of s.4 (b) with the result that the ultra vires Regulations are unconstitutional, as the exchange of correspondence on particulars between councils reveals; but rather, being due to the Governors-in-Council making regulations, it had no power to make and that is how it is unconstitutional, as the power to make this kind of Regulation, under s. 92 is given exclusively to the Legislature under the Constitution, I am satisfied this also does not provide a cause of action. There is exclusive power in the Legislature to make laws but within that constitutional concept there is clear constitutional rights of the Legislature to delegate its powers. The Governor in Council derives its power to act from the Legislature and it is assumed for the purposes of this issue that the Legislature can delegate it. The Governor in Council exercising these powers which are exclusive to the Legislature under s. 92 is not in breach of the Constitution. It is operating within the normal constitutional principles which allow the Legislature to delegate. There is clear law from the Privy Council and the Supreme Court of Canada as previously noted, that the power can be delegated so it is not usurped. The basis for the Regulations being allegedly unconstitutional does not result in that conclusion. There is no usurping of the Legislature's powers. The Governor in Council exercised lawfully conferred powers in a beneficial way. It exercised the very power delegated to it. Nor is there a reasonable cause of action that the ultra vires Regulations outside the Insurance Act thereby, and for that reason alone, violate s. 92 of the Constitution. The issue of ultra vires Regulations is simply an issue of improper exercising of delegated power. If the Governor in Council has acted outside the Statute, it can be addressed appropriately on the main application. A literature, case law and authority review in its silence, negates that the ultra vires Regulations in the context provided here are also unconstitutional or create an unconstitutionality of some kind by the Regulations being outside the scope of the Insurance Act. Therefore, the motion to strike this claim as being on its face absolutely unsustainable or devoid of all merit is granted.
Issue: Standing : Whether Helen Hartling and Anna Marie MacDonald are aggrieved and/or have standing to bring the amended Originating Notice (Application Inter Parties)
[30] The Attorney General submits the Applicants Helen Hartling and Anna Marie MacDonald, in relation to the second automobile accident, she was involved in do not have private or public interest standing and should be removed as parties to the main application. There is no evidence the challenged $2,500.00 minor injury cap has been applied by the insurer to either Hartling or MacDonald, and if a determination is made in future that the cap does not apply to them, this matter will have been determined on an erroneous factual basis that the cap applied, possibility affecting the analysis and outcome of the case. The issues, as brought by both Applicants are premature (Phillip v. Nova Scotia Commission of Inquiry into the Westray Mine Tragedy, [1995] 2 S.C.R. 97 para. 12-14) and not ripe (Coalition of Citizens for a Charter Challenge v. Metropolitan Authority, [1993] N.S.J. No. 404 (N.S.C.A.)).
[31] Besides not having a genuine interest at this point, there are other effective means for bringing the issues to the court, i.e.. where the challenge cap has actually been applied to private litigants, one of whom is already before the Court in this application, being Melissa Gionet. This being the case, the Attorney General argues the Applicants fail to meet at least two aspects of the test for public interest standing besides lacking private standing.
[32] The onus is on the Applicants to establish they each have a sufficient private or personal interest in the subject matter of the proceedings. Have they been directly and specifically affected by the impugned legislation? The requisite personal interest goes beyond and is not achieved by the satisfaction of righting a wrong, upholding a principle or winning a contest if the action proceeds. (Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 para. 21). Neither can it be achieved by relying on a breach of another person's Charter Rights. (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358)
[33] As for public interest standing, the onus is also on the Applicants as the parties seeking a declaration of invalidity or a breach to meet the purpose and to satisfy the three part test for standing set out by the Supreme Court of Canada in Canadian Council of Churches v. Canada et al, [1992] 1 S.C.R. 236 and recited by the Nova Scotia Court of Appeal at paras. 17-19 in Inshore Fishermen's Bona Fide Defence Fund Association v. Canada (1994), 132 N.S.R. (2d) 370 as follows:
¶17 The principles with respect to the granting of public interest standing have been developed by the Supreme Court of Canada in a series of decisions culminating with the opinion of Cory J., in Canadian Council of Churches v. R. (1992), 132 N.R. 241 (S.C.C.). these principles are as follows: (1) Persons or organizations seeking public interest standing must prove
(a) that the claim raises justiciable issues and in particular that there is a serious issue as to the validity of legislation or the validity of a public act exercised by a statutory authority, the latter because the public has an interest in ensuring that public officials act in accordance with statutory authority (Canadian Council of Churches, paras. 29 & 33);
(b) that the challenger is affected directly or has a genuine interest in the validity of the legislation or the public act in issue; and
(c) that there is no other reasonable or effective manner in which the issue may be brought before the court (Canadian Council of Churches, para. 30)
....
¶19(3) In determining if public interest standing should be granted the court must have concern for the proper allocation of judicial resources and the principles for granting standing should not be expanded. Cory J. in the Canadian Council of Churches summed up the concern in paras. 35-36 where he stated:
“The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. In addition some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982. However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a [sic] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.”
“The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting status set forth by this Court need not and should not be expanded - the decision whether to grant status is a discretionary one with all which that designation implies. Thus undeserving applications may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.” (emphasis added)
[34] The Applicants must establish their standing in relation to the issues they are alleging. They allege that they are discriminated against on the basis of physical disability and sex by the definition of minor injury because it caps them with a $2,500.00 threshold that they must cross before their injuries are deemed to be something other than minor injuries and economically disadvantages them. By way of challenge under s. 15 of the Charter, they allege the chronic pain Regulation discriminates against them based on their physical disability, as some will fall within minor injury definition and some will not, so some chronic pain suffers will avoid application of the cap and some will not. They allege their s. 7 Charter rights are breached in that the liberty and security of the person is violated by the cap by denying them the right to make fundamental personal choices. They say the definition of minor injury in s. 113B(1) of the Insurance Act discriminates or affects their rights because it caps them. All issues require a factual foundation where the party is found to have a minor injury and subject to the cap. The nature of the Applicants' Charter issues all focus on the “cap”.
[35] Pivotal to discussing on what basis the Applicants say they have been significantly and directly affected is that it has not yet been determined by the insurers whether they have minor injuries or whether the cap will ever apply. The Applicants are not yet in a position to claim a breach of their own Charter rights because no insurer, based on their evidence, has taken a final position and applied the cap to them or made a decision as to whether they have a minor injury which is what triggers the application of the cap. No where do they deny that a determination of their injury status is yet to be provided and their affidavit evidence reflects no such decision to apply the cap to them has been made by the insurer. If the insurer says they do not have a minor injury and therefore no caps is applied, the Applicants are not aggrieved by Section 113B(1)(a) of the legislation which defines minor injury. Under the pleadings, the potential of having a minor injury is not sufficient to challenge the legislation.
[36] It is premature to ask the question whether the definition of minor injury discriminates against them based on their physical disability or sex or other Charter issues because they may yet be found not to fall within that definition. At this time, they do not know what the position of the insurer is going to be on whether they have a minor injury triggering the cap. If they are not found to have minor injury, they avoid the cap. It is this, that is the foundation of their Charter Application. Of concern is the basis for the analysis of the allegations, if proceeded with may well prove, at a later date, to be invalid. The foundation of the Charter Application is removed and all of the Charter issues will move forward on a fallacious basis. The concern for shifting of factual basis of the Charter issues does not arise with the Applicant, Gionet, as the evidence reveals the insurer has described her injury to be minor triggering the cap and she has accepted same. At this point, the Applicants are not in a position to allege the definition of minor injury discriminates against them and disadvantages them by suggesting them to be a $2,500 cap injury. It is possible that the Applicants may end up not disadvantaged or treated unfairly as alleged because of the insurer never applying the cap and the entire S. 15 analysis will have proceeded on the wrong basis. The ruling based on fallacious facts may later distort a true fact situation.
[37] The case law is clear that constitutional issues such as discrimination, compelability, should not be litigated when the issues are premature, as they have not yet arisen. The Court should not be and is not required to opine on in a hypothetical situation and does not make premature constitutional rulings which can cause embarrassment and possibly prejudice future cases. (Phillip v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 S.C.C. at para 9 - 12; 14). The Appellants have the onus of establishing standing and there is no evidence to prove that the dispute that they are alleging over minor injury and the cap is yet arisen and in addition the facts are such that it may not arise. In dealing with “reality of the dispute”, the Supreme Court of Canada in pre Charter days has stated “it is clear that a declaration will not normally be granted... where the dispute has yet to arise and may not arise.” ( Canada v. Solosky, [1980] S.C.R. 821 at pp. 8-9)
[38] It is the Applicant’s position that Hartling and MacDonald have already been directly and significantly affected by the impugned legislation thus affording them status, regardless of the eventual outcome of their claims. It is simply not the “cap”. They argue the very existence of the legislation impacts on them in a very real and direct sense and affects their ability to present their claims. Their claims have been prolonged or delayed due to the uncertainty as to whether the “cap” will apply to restrict their claims. They have experienced financial costs of accumulating medical opinions to establish that their injuries cross the minor injury threshold established by the legislation. If the legislation is struck, they will no longer need to seek to establish, by medical evidence, that they fall outside the scope of the “cap”.
[39] However, as in Coalition of Citizens for a Charter Challenge v. Metropolitan Authority, supra, para 37-40, problems or general implications in and around the challenged legislation do not “make ripe for trial the real issue here if it is not so”. As plead, the real issue is whether the Applicants rights are affected because they fall within the definition of minor injury and they are capped. What the Court wants to look at is whether the issue that the Applicants have raised is ripe for consideration and not other problems or adding some perspective. The Applicants cannot show at this point that they are directly affected by the legislation they are challenging. The legislative provision that they are challenging may not apply to them. There is not, at this time, a “serious issue” for the Court to decide because noone knows what is going to happen. It is premature. The peripheral interests and concerns do not focus on the issue that they themselves have raised. The necessity of bringing proof of loss of one’s injury claims to the insurer and satisfying them that you have injury remains a constant and the principle has not changed. The Applicants are in no different position than any claimant in a motor vehicle accident. Furthermore, even if relevant, the evidentiary basis for suggesting differences in negotiating a claim now or in financial costs of advancing a claim now compared to before is lacking.
[40] The onus on the Applicants to show that they have standing is not automatically addressed, as argued by the Applicants, by the cap being applied the moment they sustained their injuries and only being lifted unless and until they can establish otherwise by medical evidence and to the satisfaction of the court, if necessary. Section 5 of the Insurance Regulations which reads:
Onus to Prove Injury not minor injury
5. On a determination of whether an injury is a minor injury under subsection 113 B (6) or (8) of the Act, the onus is on the injured party to prove, based upon the evidence of one or more medical practitioners trained and experienced in the assessment and treatment of the personal injury, that the injury is not a minor injury.
does not effectively deem the Applicants subject to the “cap” until the contrary is proven. The section is not a determination by the insurer as to whether this person has a minor injury, rather it is a determination under ss. 113 B (6) or (8) of the Insurance Act which applies when the injured party is in the litigation process. The sections read:
113 B (6) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine, for the purpose of subsection (4), whether, as a result of the use or operation of the automobile, the injured person has suffered a minor injury.
....
(8) Where no motion is made under subsection (6), the judge shall determine for the purpose of this Section whether, as a result of the use or operation of the automobile, the injured person has suffered a minor injury. 2003 (2nd Sess.), c. 1, s. 12.
Once the matter is taken into the courts, it is for the judge to determine if a minor injury has been suffered and at that time, the onus is on the injured party to prove to the judge on the basis of medical evidence that the injury is not a minor injury.
[41] I can find no reason to disagree with the Attorney General's position that other than this provision what the onus is, is what it always has been and that is the injured party has to prove their loss to the insurer. There is no deemed minor injury and cap with an onus to disprove on the Applicants at this stage. Therefore, there is no automatic private standing.
[42] Hartling does not have private interest standing because there is no direct interest yet. It is premature. The Applicant is unable to show at this time that she is directly affected by the legislation she is challenging. Indeed the legislative provisions that she is challenging may not apply to her.
[43] Although not challenging MacDonald’s standing as it relates to the first motor vehicle accident that she was involved in, the Attorney General continues to argue MacDonald has not discharged her onus specifically as it relates to the second accident. Material facts show the insurers applied the cap to MacDonald with respect to the first accident but no such determination has been made in regard to the second. The factual context that will inform the section 15 and section 7 Charter analysis is based on a fact situation where the cap is applied to her because she is alleging that her rights have been affected by the cap. At present, in regards to the second accidnet there is no evidence of the cap being applied to her. If the cap does not apply to her then her rights are not affected by it and the onus on her is not met as it relates to the second accident. Anna Marie MacDonald has standing based on the first motor vehicle accident. It would be wrong to rely upon any aspect of the circumstances of the second motor vehicle accident, if needed, in challenging the legislation unless the cap is triggered.
[44] Acknowledging that public interest standing is always discretionary, of the three conjunctive public interest standing criteria set out by the Supreme Court of Canada specifically:
1. Is there a serious issue to be tried?
2. Has it been established that the Applicants are directly affected or if not do they have a genuine interest in the validity of the legislation in issue?
3. Is there another reasonable and effective way to bring the issue before the Court?
besides, as just noted not having a genuine interest in the validity of the legislation in issue, the Applicants are unable to satisfy the burden of proving no person more directly affected will come forward to litigate the issue, given that the Applicant Gionet is before the Court and her standing is not challenged. There is another reasonable and effective way to bring the issue to the Court without turning to public interest standing. The burden of showing public interest standing is not meet by the Applicants.
Issue: Striking paragraphs in the Affidavits.
[45] Dealing with the issue to strike paragraphs in the Affidavits, the Attorney General submits a portion of paragraph 10 of the Hartling Affidavit and also paragraph 4 of the MacDonald Affidavit should be struck on the basis they fail to comply with requirements to plead facts not evidence or opinion; and paragraph 8 of the MacDonald Affidavit and paragraphs 7 and 8 of Gionet Affidavit should be struck on the basis they fail to comply with the requirement of C.P.R. 38.02 to identify the source of the Affiants’ information and belief.
[46] With respect to the Hartling Affidavit, the Attorney General requests that the Court strike only the following words in paragraph 10, which provide that the insurance adjuster for Aviva, in a letter to counsel;
“...indicates their intention to apply the legislation to my claim. Further, the insurance adjuster states that they ‘do not have sufficient proof’ that my claim ‘crosses the threshold’ ”.
The words preceding the full sentence in the quote inappropriately reflect the Applicants’ opinion and interpretation of the insurance adjuster’s letter to counsel and should not be present. The words “... indicates their intention to apply the legislation to my claim.”, given their context in a sentence dealing with thresholds on claims and an opinion being expressed thereon, is struck. The full sentence quoted is evidence, not facts, being a partial excerpt from the adjuster’s letter to counsel. It should not be taken out of context of the entire letter. It should not be considered to support that the challenged cap is being applied to Hartling by the insurer, thereby, entitling her to standing. It is a partial excerpt that must be read in it entire context and not a statement that the challenged cap is being applied to Hartling. Being evidence and not fact, this sentence is struck.
[47] Insofar as paragraph 8 of MacDonald’s Affidavit and paragraphs 7 and 8 of Gionet’s Affidavit fail to identify the source of the information and in MacDonald’s case also the grounds for believing the unnamed adjuster “was assessing” her claim under the Insurance Act and Regulations, those particulars should have been provided and failing to do so within the next 30 days will result in the statements being struck.
[48] MacDonald has addressed her health in her supplementary Affidavit which I interpret to qualify her definition of “good health” as indicated in paragraph 4 of her first Affidavit. I understand counsel to have indicated the word “good” expressing her opinion on her health will be removed.
[49] For the above reasons, the Attorney General’s motion is granted. I would ask counsel to submit an Order reflective of the issues as modified.
J.