Morrow et al. v. Zhang et al., (2009) 454 A.R. 221 (CA)

• Judge: McFadyen, O'Brien and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 12, 2009
• Citations: (2009), 454 A.R. 221 (CA);2009 ABCA 215

Morrow v. Zhang (2009), 454 A.R. 221 (CA);

      455 W.A.C. 221

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.065

Peari Morrow and Brea Pedersen (respondents/cross-appellants/plaintiffs) v. Jian Yue Zhang and Xiao Fei Wei (appellants/cross-respondents/defendants) and Insurance Bureau of Canada (appellant/cross-respondent/intervenor) and Her Majesty The Queen in Right of Alberta (appellant/cross-respondent/statutory intervenor)

(0801-0041-AC; 0801-0044-AC; 0801-0067-AC; 2009 ABCA 215

Indexed As: Morrow et al. v. Zhang et al.

Alberta Court of Appeal

McFadyen, O'Brien and Rowbotham, JJ.A.

June 12, 2009.

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, in a judgment reported (2008), 421 A.R. 1, 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. The defendants appealed the finding that s. 6 violated s. 15(1) of the Charter. The plaintiffs cross-appealed the failure to find that s. 6 violated their s. 7 Charter right to security of the person.

The Alberta Court of Appeal allowed the appeal and dismissed the cross-appeal. Although s. 6 made a distinction based on disability, had the trial judge considered the entire scheme of the legislation, he would have found that s. 6 was not discriminatory. The trial judge correctly found that s. 6 did not violate s. 7 of the Charter.

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 trial judge 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 - The Alberta Court of Appeal affirmed, for the reasons stated by the trial judge, that the MIR did not violate s. 7 - See paragraphs 142 to 147.

Civil Rights - Topic 5500

Equality and protection of the law - General principles and definitions - General - The trial judge, in determining the constitutionality of s. 6 of the Minor Injury Regulation (MIR), stated that "a discriminatory provision or regulation cannot be shielded from effective review by labelling it as part of a larger scheme" - The Alberta Court of Appeal disagreed, stating that "when the court considers a section 15 challenge to a section or to one part of a legislative scheme, it must consider the whole scheme. ... the trial judge erred when he 'constitutionally assessed only the MIR' ... and stated that 'the distinction in the MIR was the focus of [his] analysis'. ... The correct approach was to assess the entire package of insurance reforms." - See paragraphs 59 to 64.

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),which was one part of an entire package of insurance reforms, 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 trial judge 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 - "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 exaggerated their injuries for financial gain - A reasonable person in a "minor injuries" victim's position would conclude that the MIR had the effect of perpetuating that stereotype - The MIR did not consider the actual needs, capacities and circumstances of a "minor injuries" victim, as it was focussed on reducing insurance premiums - The Alberta Court of Appeal held that the MIR did not violate s. 15(1) - The judge chose the correct comparator group and correctly found that the MIR imposed differential treatment on the basis of physical disability - Although the court deferred to the finding that soft tissue injury sufferers were subject to pre-existing stereotypes and prejudice, the judge erred in finding that the MIR perpetuated that stereotyping and prejudice - The package of insurance reforms as a whole considered a claimant's needs, capacities and circumstances - The court stated that "[the trial judge] failed to analyse the insurance reforms as a whole, including the DTPR, which rather than perpetuating the stereotype, recognizes that the injuries suffered by the MIR claimants are real and ought to be treated as such. Similarly, in analysing whether the legislation meets the needs and circumstances of the claimants, the trial judge failed to assess the medical benefits provided to minor injury claimants in exchange for their reduced damages for pain and suffering. Finally, he erred in concluding that damages for pain and suffering are of such fundamental societal significance that to interfere with them was indicative of discrimination. Accordingly, I conclude that in applying the four contextual factors from Law, a reasonable person in the position of the minor injury claimants would not conclude that the distinction drawn by the cap on non-pecuniary damages is discriminatory." - See paragraphs 50 to 141.

Cases Noticed:

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; 107 D.L.R.(4th) 342, refd to. [para. 24].

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. 25].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 37 C.C.C.(3d) 449, refd to. [para. 27].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 27].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 30].

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. 33].

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. 39].

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. 39].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 39].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200, refd to. [para. 40].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 50].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 50].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 50].

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 2006 ABCA 235, refd to. [para. 50].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 294 D.L.R.(4th) 1; 2008 SCC 41, refd to. [para. 50].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd t. [para. 50].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2009), 384 N.R. 203; 2009 SCC 9, refd to. [para. 52].

McIvor et al. v. Registrar of Indian and Northern Affairs Canada et al., [2007] B.C.T.C. Uned. D34; 2007 BCSC 827; [2007] 3 C.N.L.R. 72; 2007 BCSC 827, varied (2009), 269 B.C.A.C. 129; 2009 BCCA 153, dist. [para. 60].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201; 2004 SCC 65, refd to. [para. 66].

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; 2004 SCC 78, refd to. [para. 68].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 89].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 89].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 90].

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. 91].

Hartling et al. v. Nova Scotia (Attorney General) et al. (2009), 278 N.S.R.(2d) 112; 70 C.C.L.I.(4th) 25; 2009 NSSC 2, refd to. [para. 93].

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; 175 D.L.R.(4th) 193, refd to. [para. 98].

Kubel v. Alberta (Minister of Justice), [2006] 8 W.W.R. 570; 2005 ABQB 836, refd to. [para. 107].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 132].

ter Neuzen v. Korn - see Neuzen v. Korn.

Lee v. Dawson (2006), 224 B.C.A.C. 199; 370 W.A.C. 199; 267 D.L.R.(4th) 138; 2006 BCCA 159, refd to. [para. 133].

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; 2004 SCC 66, refd to. [para. 148].

Statutes Noticed:

Insurance Act Regulations (Alta.), Minor Injury Regulation, Reg. 123/2004, sect. 1, sect. 2, sect. 3, sect. 4, sect. 5, sect. 6, sect. 7, sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13, sect. 14, sect. 15, sect. 16, sect. 17, sect. 18 [Appendix].

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

Authors and Works Noticed:

Brown, Craig, Insurance Law in Canada (2002) (2006 Looseleaf Update), vol. 1, p. 1-7 [para. 110].

Canada, Human Resources Canada, Defining Disability: A Complex Issue (2003), generally [para. 84].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), vol. 2, pp. 55-22 [para. 79]; 55-31, 55-32 [para. 52].

Counsel:

F.R. Foran, Q.C., and J.G. Hopkins, for the appellant/cross-respondent, Her Majesty The Queen in Right of Alberta;

A. D'Silva, E. Snow and J. Levy, for the appellants/cross-respondents, Zhang and Wei;

R.B. Davison, Q.C., and D.C. Rolf, for the appellant/cross-respondent, Insurance Bureau of Canada;

F.S. Kozak, Q.C., M.A. Woodley and J.D. Taitinger, for the respondents/cross-appellants.

This appeal and cross-appeal were heard on September 12, 2008, before McFadyen, O'Brien and Rowbotham, JJ.A., of the Alberta Court of Appeal.

The judgment of the court was delivered by Rowbotham, J.A., and filed on June 12, 2009.