No-Fault, No Lawyer, No Justice

This article is part of a series on no-fault insurance:

• Bill 47 and Access to Justice in Alberta
• Open and Shut: The Case Against No-Fault Auto Insurance
• Alberta Auto Insurance: Making the Case for Consumer Protection

When delegates at the United Conservative Party’s Annual General Meeting voted overwhelmingly on November 29, 2025, to repudiate the government’s Care First no-fault automobile insurance regime. Delegates were not engaged in a fine-grained debate about the best way to reduce auto insurance premiums. They were registering a visceral discomfort with any system that looks and feels like British Columbia’s government-run Insurance Corporation of British Columbia (ICBC) or Alberta’s own Workers Compensation Board (WCB): regimes that purport to offer generous benefits on the front end while quietly extinguishing meaningful independent recourse on the back end. At its core, the tort-versus-no-fault debate is ultimately about whether seriously injured Albertans will still be able to retain independent counsel when an insurer denies, delays, or undervalues a legitimate claim.

Non-pecuniary general damages serve two inseparable functions. Doctrinally, since Andrews ([1978] 2 SCR 229) and the trilogy, they provide solace for pain, suffering, and the loss of enjoyment of life. Practically, they have become the primary predictable, liquid pool from which lawyer fees are paid in serious injury cases. As cost awards have stagnated and disbursement financing has grown more expensive, that role has intensified. For the ordinary claimant—disabled, off work, and facing hourly rates exceeding $500—the contingency fee drawn from non-pecuniary damages is the sole mechanism that transforms a theoretical right to counsel into a usable one. In practice, it is part of the civil justice system’s access-to-justice architecture.

Care First is remarkably candid about its intention to dismantle that architecture. The permanent-impairment benefit is capped at roughly two-thirds of the inflation-adjusted Andrews ceiling—the missing third deliberately mirroring the standard one-third contingency fee customarily charged by plaintiff’s counsel. Tort claims for non-pecuniary damages are extinguished entirely, save for the vanishingly rare case in which the at-fault driver is criminally convicted of an enumerated offence.

A narrow tort window for excess pecuniary loss does remain—and it must remain. It is the last route to truly individualized lifetime care and income-loss awards; closing it would be indefensible. The structural flaw is that, as currently designed, only high earners can walk through it. No-fault income replacement caps out at roughly $125,000 in pre-accident earnings. Only claimants with six-figure incomes (or the rare plaintiff with astronomical future-care needs) can generate an “excess” large enough to fund litigation through a contingency fee. For everyone else, wage-loss and care claims are capped or so fiercely contested inside the no-fault machinery that no viable contingency pool exists. The residual tort right, therefore, functions as a privilege for the affluent and a mirage for the modest-income majority.

We do not need to speculate about the consequences. Post-reform empirical work shows that ICBC prevails in a clear majority of contested Civil Resolution Tribunal cases, despite the tribunal’s “claimant-friendly” branding. The promise that “you won’t need a lawyer” has delivered a system in which claimants are overwhelmingly unrepresented. At the same time, the insurer fields in-house counsel backed by decades of institutional memory. Care First replicates the same redistribution of legal capital under private branding.

Constitutionally, the instinctive response is to search for a right to counsel. Christie (2007 SCC 21) and subsequent authorities make it clear that, in the civil context, section 7 of the Charter does not protect purely economic interests or a freestanding right to pursue a tort claim. Courts have consistently rejected section 7 challenges to auto‑insurance caps, thresholds, and tribunal assignment on that basis.

The more promising path lies in section 15; read through the adverse effects framework in Fraser (2020 SCC 28). Seriously injured accident victims are disproportionately disabled, economically precarious, and frequently impaired by cognitive deficits, chronic pain, or psychological sequelae that make self-advocacy extraordinarily difficult. For this group, contingency-funded counsel is the functional equivalent of the medical interpreters in Eldridge ([1997] 3 SCR 624). It is the precondition that makes the technical right to a lawyer usable and functional in practice.

The Alberta Government’s likely rejoinder—that “everyone who accesses the system is injured” and therefore treated “equally poorly”—is untenable. Comparator groups exist inside the scheme: minor-injury claimants, affluent claimants, and high earners who can still generate excess pecuniary recoveries all retain realistic pathways to counsel; seriously disabled, modest-income claimants do not. The design draws discriminatory distinctions on the enumerated ground of disability, compounded by socioeconomic status. The obvious levelling-down response—simply abolishing even that residual pecuniary tort—would mean stripping catastrophically injured claimants of the last individualized remedy left in the system while doing nothing to improve care or bargaining power for anyone else.

The minor-injury cases are instructive. In Morrow (2009 ABCA 215) and Hartling (2009 NSCA 130), courts upheld caps only because the legislation provided targeted, needs-matched offsetting benefits for the very cohort whose tort rights were curtailed. Care First follows that logic on the medical/rehabilitation sides, yet ignores it on the legal representation side. Enhanced scheduled benefits are no substitute for the contingency fee model that currently allows the most vulnerable claimants to retain counsel. The result is textbook adverse effects discrimination.

If the core pathology is the redistribution of legal capital rather than the quantum of scheduled benefits, the solution must address it directly. Keep the best of Care First—robust no-fault medical, rehabilitation, and modest income-replacement benefits—but restore a narrowly gated tort access threshold for serious and catastrophic permanent impairment, allowing claims for both non‑pecuniary damages for those who sustain serious and catastrophic permanent impairments and pecuniary losses in excess of no‑fault benefits. Savings can be achieved through deductibles (waived for catastrophic injury), elimination of prejudgment interest on non-pecuniary damages, and targeted cost-rule reform. Such a model delivers premium reductions comparable to pure no-fault while preserving the contingency-fee machinery that makes serious-injury litigation viable for ordinary people.

In other words, you do not have to erase the right to sue for non-pecuniary damages in serious cases to achieve the government’s stated premium goals. You can keep the improved no-fault care, stabilize bodily injury loss costs by targeting genuine cost drivers (physical damage, prejudgment interest, and litigation overhead), and still leave permanently injured Albertans with access to individualized judicial assessment and contingency-funded counsel.

For the plaintiffs’ bar, the strategic lesson is clear: we must stop sounding defensive about fees. This fight is about whether seriously and permanently injured Albertans of modest means will have a usable remedy at all. When we lead with who loses an advocate, who keeps one, and how that shift in legal capital maps directly onto disability and income, the public—and the courts—immediately understand what is at stake.

Our job is to keep the conversation relentlessly focused there—and to reject, without apology, any model that tells seriously injured Albertans they “won’t need lawyers anymore” when what it really means is that they will be expected to face insurers and the state alone.