Cameron v. Pratt, 2023 NSCA 90
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By: Alexandre Doucet (Articled Clerk)
On August 3, 2017, Robert Pratt (Plaintiff in the underlying matter, Respondent in the appeal) was travelling on Brunswick Street in Truro, Nova Scotia on his motorcycle. David Cameron was parked along the shoulder of the road in a van owned by D&T Heating and Plumbing Ltd. (Defendants in the underlying matter, Appellants in the appeal). As Pratt approached, the D&T van pulled out from its parking spot and collided with Pratt’s motorcycle, causing him to suffer various injuries. Pratt was awarded general damages for injuries under the minor injury cap in the amount of $8,486.00, and $55,000.00 for non-capped injuries. Cameron and D&T appealed this decision, alleging several errors on the part of the trial judge.
According to Justice Farrar of the Nova Scotia Court of Appeal, the central issue on appeal was determining who held the burden of proving that an injury fell within the minor injury cap, a limit on the amount of general damages a person can claim for pain and suffering.
The trial judge found that since the Defendants asserted and relied on the minor injury cap that they therefore had the onus of showing that the Plaintiff’s injuries fell within the cap [para 117]. In finding that the onus of proof shifted to the defendant, the trial judge then relied on legislative debates when the Automobile Accident Minor Injury Regulations, NS Reg 94/2010, were amended (Regulations). While the previous Regulations explicitly stated that the plaintiff bears the onus of proof, the present Regulations do not contain such explicit provisions; however, during the legislative debates relating to the amendment, when referring to the removal of the explicit reference to the onus of proof, it was stated that “the intention of the government [is] that ordinary common-law rules respecting onus should apply” [para 122]. This would indicate that Nova Scotia did not intend to deviate from established law.
This issue was discussed in greater detail in Gibson v. Julian, 2016 NSSC 15 where Justice Chipman found that, despite the removal of the provision, the onus remained on the injured person. Adding certainty, Justice Chipman asserted that, absent reverse onus wording from the Legislature, “I am not prepared to accept that it is for a defendant to marshal evidence to, in effect, prove a negative” [para 78]. Justice Farrar concurred with Justice Chipman’s Gibson analysis.
Justice Farrar allowed the appeal in part, finding that a plaintiff bears the onus of proving that their injuries fall outside the minor injury cap. As for the damage amount, the Court of Appeals will only intervene if the damages are either egregiously low or high. Justice Farrar deemed damages here were appropriate and so no intervention was required.