Morrow v. Zhang et al.,

• Judge: Wittmann
• Neutral Citation: 2008 ABQB 98
• Date: 25 June 2007
• Court: Court of Queen's Bench of Alberta (Canada)

Morrow v. Zhang (2008), 421 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.046

Peari Morrow (plaintiff) v. Jian Yue Zhang and Xiao Fei Wei (defendants) and Insurance Bureau of Canada (intervenor) and Her Majesty The Queen in Right of Alberta (statutory intervenor)

(0401-17808)

Brea Pederson (plaintiff) v. Darin James Van Thournout and Robert Van Thournout (defendants) and Insurance Bureau of Canada (intervenor) and Her Majesty The Queen in Right of Alberta (statutory intervenor)

(0503-14244; 2008 ABQB 98)

Indexed As: Morrow v. Zhang et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, A.C.J.Q.B.

February 8, 2008.

Summary:

The plaintiffs suffered soft tissue injuries in two separate accidents. Each brought an action for damages. Liability was admitted in both actions. At issue was the quantum of damages and the constitutionality of s. 6 of the Minor Injury Regulation (MIR), which imposed a $4,000 cap on general damages for non-pecuniary loss for soft tissue "minor injuries" not resulting in serious impairment, as defined under the MIR. The plaintiffs submitted that the MIR violated s. 7 (security of the person) and s. 15(1) (equality rights) of the Charter of Rights and Freedoms and was not a reasonable limit prescribed by law (s. 1).

The Alberta Court of Queen's Bench held that the cap imposed by s. 6 of the MIR did not violate s. 7, but did violate the plaintiffs' equality rights under s. 15(1). It was not saved as a reasonable limit prescribed by law under s. 1. The court declared that the entire MIR had no force and effect. The plaintiffs' damages were assessed without reference to the cap.

Civil Rights - Topic 1208.5

Security of the person - General - Non-pecuniary general damages cap - Section 6 of the Minor Injury Regulation (MIR) imposed a $4,000 cap on general damages for non-pecuniary loss for soft tissue "minor injuries" that did not result in serious impairment - The plaintiffs submitted that the MIR violated s. 7 of the Charter by negatively impacting their physical and psychological security of the person contrary to the principles of fundamental justice - The MIR removed the right to sue tortfeasors for pain and suffering exceeding $4,000 and allegedly negatively affected their ability to retain counsel and pursue an action, because much of the soft tissue injury litigation was on a contingency fee basis - Further, it was alleged that the Diagnostic and Treatment Protocols Regulation (DTPR) coerced certain medical treatment, fettering the right to choose appropriate treatment - The Alberta Court of Queen's Bench held that a cap on non-pecuniary damages could not, by itself, lead to a restriction of the physical or psychological integrity of the plaintiffs, as s. 7 did not protect purely economic interests - Although security of the person included matters of personal autonomy such as choices as to medical treatment, a person failing to comply with the DTPR, who was later diagnosed with a serious impairment, would suffer only economic consequences by limiting his or her right to sue for non-pecuniary damages to $4,000 - Further, the court noted that the DTPR applied only where a plaintiff elected to be medically treated under the protocol and the health practitioner chose to treat the plaintiff under the protocol - The cap did not impose a criminal or administrative penalty - The MIR did not violate s. 7 of the Charter - See paragraphs 103 to 151.

Civil Rights - Topic 5500

Equality and protection of the law - General principles and definitions - General - The Alberta Court of Queen's Bench stated that "a discriminatory provision or regulation cannot be shielded from effective review by labelling it as part of a larger scheme" - See paragraph 163.

Civil Rights - Topic 5667.2

Equality and protection of the law - Particular cases - Non-pecuniary general damages cap - Section 6 of the Minor Injury Regulation (MIR) imposed a $4,000 cap on general damages for non-pecuniary loss for soft tissue "minor injuries" that did not result in serious impairment - The Alberta Court of Queen's Bench held that the MIR violated equality rights (Charter, s. 15(1)) - The comparator group was accident injury victims whose injuries were not within the "minor injuries" definition - The court noted that some "minor injuries" victims suffered greater and more long-lasting pain than some victims of other injuries who were not subject to the cap - "Minor injuries" victims received differential treatment on the basis of physical disability, an enumerated or analogous ground - Such victims, especially whiplash victims, were subjected to stereotyping and prejudice, often viewed as malingerers who exaggerate their injuries for financial gain - A reasonable person in a "minor injuries" victim's position would conclude that their essential dignity was adversely affected by the MIR, which had the effect of perpetuating the stereotype that soft tissue injury victims were malingerers and fraudsters whose pain was not real - The MIR did not consider the actual needs, capacities and circumstances of a "minor injuries" victim in a manner that respected their value as human beings and as members of Canadian society - The MIR sacrificed "the dignity of minor injury victims at the altar of reducing insurance premiums" - The MIR was not aimed at improving the circumstances of other more disadvantaged groups - The court held that the MIR was not a reasonable limit prescribed by law (Charter, s. 1) - The true objective of the cap, to reduce automobile insurance premiums, was a pressing and substantial objective and there was a rational connection between the cap and the objective - However, the MIR did not minimally impair the rights of "minor injuries" victims - It placed the burden of reducing premiums almost entirely on their shoulders - Although unnecessary to decide the issue, the court opined that the deleterious effects of the MIR outweighed its salutary effects - See paragraphs 152 to 347.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 5667.2 ].

Damage Awards - Topic 29

Injury and death - Arm and hand injuries - Wrist - In March 2005, the now 32 year old female plaintiff suffered soft tissue injuries to her neck, back and wrists - All pain resolved within one month, except for her wrists - The plaintiff had no pre-existing condition - The pain persisted - She was diagnosed with either a bi-lateral wrist strain or tendinitis - Wrist pain did not affect her employment - The plaintiff sought $15,000-$20,000 general damages - The defendant suggested $8,000-$12,000 - The Alberta Court of Queen's Bench awarded $15,000 general damages for nonpecuniary loss - See paragraphs 41 to 56.

Damage Awards - Topic 70

Injury and death - Body injuries - Back - Aggravation of pre-existing condition - In October 2004, the now 34 year old female plaintiff suffered soft tissue injuries to her neck and back - She had a history of neck and back pain pre-dating the accident, migraines and TMJ, all of which were symptomatic at the time of the accident - The present back pain did not result in the plaintiff losing time off work - Although the plaintiff acknowledged the pre-existing back pain, she claimed that her present pain was different, stronger and continual - The plaintiff sought $19,000-$25,000 general damages - The defendant, citing the pre-existing back pain, submitted that $7,500 to $12,000 was appropriate - The plaintiff was improving and the pain was expected to subside over time - The Alberta Court of Queen's Bench awarded the plaintiff $20,000 general damages for non-pecuniary loss - See paragraphs 6 to 40.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See Civil Rights - Topic 1208.5 and Civil Rights - Topic 5667.2 ].

Cases Noticed:

Hanson v. Heucher (1997), 197 A.R. 46 (Q.B.), refd to. [para. 30].

Ly v. Gilbert, 2001 CarswellAlta. 1524 (Q.B.), refd to. [para. 31].

Krawchuk v. Mellor, [2003] A.R. Uned. 75; [2003] 7 W.W.R. 323; 2003 ABQB 163, refd to. [para. 34].

Johnson et al. v. Tan, [2004] A.R. Uned. 720; 2004 ABQB 470, refd to. [para. 34].

Faltous v. McKinley et al., [2005] A.R. Uned. 849; 2005 ABQB 725, refd to. [para. 36].

Bush v. Lundstrom et al., [2001] B.C.T.C. 170; 2001 BCSC 170, refd to. [para. 53].

Cozicar v. Oliverio et al., [2004] A.R. Uned. 415; 2004 ABQB 426, refd to. [para. 54].

Shen v. Buchanan, [2006] B.C.T.C. Uned. 194; 2006 BCSC 432, refd to. [para. 55].

Christie v. British Columbia (Attorney General) et al., [2007] 1 S.C.R. 873; 361 N.R. 322; 240 B.C.A.C. 1; 398 W.A.C. 1; 2007 SCC 21, refd to. [para. 109].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 110].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 115].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 116].

Whitbread v. Walley (1988), 51 D.L.R.(4th) 509 (B.C.C.A.), affd. [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 117].

Hernandez v. Palmer (1992), 15 C.C.L.I.(2d) 187 (Ont. Gen. Div.), dist. [para. 118].

Budge v. Workers' Compensation Board (Alta.) (1991), 111 A.R. 228 (C.A.), refd to. [para. 120].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 125].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 131].

Jane Doe et al. v. Alberta (2007), 404 A.R. 153; 394 W.A.C. 153; 2007 ABCA 50, refd to. [para. 131].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 131].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 131].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 133].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 135].

McIvor et al. v. Registrar of Indian and Northern Affairs Canada et al., [2007] B.C.T.C. 827; 2007 BCSC 827, dist. [para. 152].

Alberta (Attorney General) v. Canada (Attorney General), [1947] A.C. 503; 4 D.L.R. 1 (P.C.), dist. [para. 154].

Texada Mines Ltd. v. British Columbia (Attorney General), [1960] S.C.R. 713, dist. [para. 154].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.), [1989] 1 S.C.R. 922; 96 N.R. 227; 76 Nfld. & P.E.I.R. 181; 235 A.P.R. 181, affing. (1987), 67 Nfld. & P.E.I.R. 16; 206 A.P.R. 16; 44 D.L.R.(4th) 501; 36 C.R.R. 112 (Nfld. C.A.), dist. [para. 154].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 154].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 154].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 160].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 160].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 171].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia (2007), 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 174].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 179].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 179].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 181].

Lee v. Dawson (2006), 224 B.C.A.C. 199; 370 W.A.C. 199; 2006 BCCA 159, refd to. [para. 183].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 183].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 183].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 183].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 185].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 191].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 191].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 191].

Agreed v. Guardian Insurance Co. of Canada, [1995] N.L.R. 1-3218 (Ont. Gen. Div.), refd to. [para. 229].

Kubel v. Alberta (Minister of Justice), 2005 ABQB 836, refd to. [para. 231].

Shulman et al. v. Ontario (Attorney General) et al. (2001), 155 O.A.C. 171; 90 C.R.R.(2d) 82 (Div. Ct.), refd to. [para. 233].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 233].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 245].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 246].

Stoffman et al. v. Vancouver General Hospital et al, [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 246].

Tétrault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 246].

Flood v. Ouellette (2007), 314 N.B.R.(2d) 107; 812 A.P.R. 107; 2007 NBCA 38, refd to. [para. 270].

Hartling et al. v. Nova Scotia (Attorney General) et al. 2006), 247 N.S.R.(2d) 154; 785 A.P.R. 154; 2007 NSSC 225, refd to. [para. 270].

Hislop et al. v. Canada (Attorney General) (2007), 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 277].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 277].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 277].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113, refd to. [para. 295].

Baier et al. v. Alberta (2007), 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 319].

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1; 2002 SCC 23, refd to. [para. 336].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 344].

Statutes Noticed:

Insurance Act Regulations (Alta.), Minor Injury Regulation, Reg. 123/2004, sect. 8, sect. 10 [para. 18].

Minor Injury Regulation - see Insurance Act Regulations (Alta.).

Authors and Works Noticed:

Billingsley, Barbara, 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 (2005), 42 Alta. L. Rev. 711, p. 728 [para. 241].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed.) (1997 Looseleaf Supp.), vol. 2, p. 15-21 [para. 154].

McLachlin, Beverley, What Price Disability? A Perspective on the Law of Damages for Personal Injury (1981), 59 Can. Bar Rev. 1, generally [para. 263].

Phillips, Jerry J., and Chippendale, Stephen, Who Pays for Accidents? The Fault Versus No-Fault Insurance Debate (2002), generally [para. 214].

Counsel:

F.S. Kozak, Q.C., M.A. Woodley and J.D. Taitinger, for the plaintiffs;

D.E. Johns, for the defendants, Zhang and Wei;

W.E. Remondini, for the defendants, Van Thournout and Van Thournout;

R.B. Davison, Q.C., and D.C. Rolf, for the intervenor, Insurance Bureau of Canada;

F.R. Foran, Q.C., J.G. Hopkins, M.G. Massicotte and R.J.D. Gilborn, for the statutory intervenors.

These actions were heard from April 10 to May 2 and on June 25, 2007, before Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 8, 2008.