Legislative Reform and Equal Access to the Justice System: An Examination of Alberta's New Minor Injury Cap in the Context of Section 15 of the Canadian Charter of Rights and Freedoms

Abstract

This article surveys the provisions in Alberta s new legislation limiting recovery for motor vehicle accident victims suffering from minor injury. author argues that the legislation effectively limits access to the justice system for a class of persons (those suffering minor injury) and this constitutes a violation of the equality guarantee in s. 15 of the Canadian Charter of Rights and Freedoms. She then outlines the practical impact of the legislation and employs the Law Test with reference to Nova Scotia (Workers' Compensation Board) v. Martin and Hernandez v. Palmer. These two cases dealt with situations where legislative distinctions between types of injury sufferers were struck down and upheld, respectively. The author emphasizes notions of fairness and access to the justice system in concluding that Alberta's legislation is an example of poor civil justice reform because it discourages and impedes deserving claims. The article concludes by urging a reconsideration of the legislation even in the absence of a constitutional challenge.