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Automobile Insurance Tort Recovery Limitation Regulations
made under Sections 5, 113B and 113C of the
Insurance Act
R.S.N.S. 1989, c. 231
O.I.C. 2003-457 (October 31, 2003, effective November 1, 2003), N.S. Reg. 182/2003
as amended up to O.I.C. 2006-551 (December 18, 2006), N.S. Reg. 230/2006
Citation
1 These regulations may be cited as the Automobile Insurance Tort Recovery Limitation Regulations.
Definitions for purposes of Section 113B of Insurance Act
2 (1) For the purposes of Section 113B of the Insurance Act and these regulations,
(a) “net loss of earning capacity” means total loss of earning capacity or loss of future income less that portion of probable future income that would be paid by a plaintiff in
(i) income and payroll taxes,
(ii) employment insurance or similar costs,
(iii) union or professional dues, and
(iv) pension contributions, including Canada Pension Plan contributions;
(b) “net income loss” means total income lost less that part of total income that would have been paid by a plaintiff in
(i) income and payroll taxes,
(ii) employment insurance or similar costs,
(iii) union or professional dues, and
(iv) pension contributions, including Canada Pension Plan contributions;
(c) “non-monetary loss” means any loss for which compensation would be payable, but for the Insurance Act, that is not an award for
(i) lost past or future income,
(ii) diminution or loss of earning capacity, and
(iii) past or future expenses incurred or that may be incurred
as a result of an incident, and for greater certainty excludes valuable services such as housekeeping services;
(d) “personal injury” does not include
(i) a coma resulting in a continuing serious impairment of an important bodily function,
(ii) chronic pain that
(A) is diagnosed and established as chronic pain by a medical specialist appropriately trained in the diagnosis and management of pain disorders,
(B) is a direct result of a physical injury sustained in the motor vehicle accident with respect to which the claim is brought,
(C) results in a continuous serious-impairment of an important bodily function, and
(D) is moderately severe or severe pain, as classified in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition,
(iii) a burn resulting in serious disfigurement,
(iv) an amputation of a major limb;
Clause 2(1)(d) added: O.I.C. 2003-486, N.S. Reg. 196/2003.
(e) “regular employment” means the essential elements of the activities required by the person’s pre-accident employment;
Clause 2(1)(e) added: O.I.C. 2003-486, N.S. Reg. 196/2003.
(f) “resolves” means
(i) does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment, or
(ii) causes a serious impairment which results from a continuing injury of a physical nature to produce substantial interference with a person’s ability to perform their usual daily activities or their regular employment where the person has not sought and complied with all reasonable treatment recommendations of a medical practitioner trained and experienced in the assessment and treatment of the personal injury;
Clause 2(1)(f) added: O.I.C. 2003-486, N.S. Reg. 196/2003.
(g) “substantial interference” means, with respect to a person’s ability to perform their regular employment, that the person is unable to perform, after reasonable accommodation by the person or the person’s employer for the personal injury and reasonable efforts by the injured person to adjust to the accommodation, the essential elements of the activities required by the person’s pre-accident employment;
Clause 2(1)(g) added: O.I.C. 2003-486, N.S. Reg. 196/2003.
(h) “usual daily activities” means the essential elements of the activities that are necessary for the person’s provision of their own care and are important to people who are similarly situated considering, among other things, the injured person’s age.
Clause 2(1)(h) added: O.I.C. 2003-486, N.S. Reg. 196/2003.
Section 2 renumbered subsection 2(1) and amended: O.I.C. 2003-486, N.S. Reg. 196/2003.
(2) For the purposes of subsection (1), “employment” includes self-employment.
Subsection 2(2) added: O.I.C. 2003-486, N.S. Reg. 196/2003.
Total amount recoverable for non-monetary losses
3 For the purpose of subsection 113B(4) of the Insurance Act, the total amount recoverable as damages for non-monetary losses of a plaintiff for all minor injuries suffered by the plaintiff as a result of an incident must not exceed $2,500.
Section 3 amended: O.I.C. 2006-551, N.S. Reg. 230/2006.
Subsection 3(1) renumbered 3 and subsection 3(2) repealed: O.I.C. 2003-486, N.S. Reg. 196/2003.
Discount rate for calculating loss or damage from bodily injury or death
4 (1) For the purpose of Section 113C, the discount rate for calculating loss or damage from bodily injury or death is 3.5%.
(2) Effective January 1, 2005, the discount rate for each calendar year may be based on the difference between the rate set for Government of Canada bonds and the consumer price index for the previous 12 months.
Onus to prove injury not minor injury
5 On a determination of whether an injury is a minor injury under subsection 113B(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.
Section 5 added: O.I.C. 2003-486, N.S. Reg. 196/2003.
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