Morrow v. Zhang et al., 2008 ABCA 248

• Judge: Rowbotham, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 17, 2008
• Citations: 2008 ABCA 248;(2008), 432 A.R. 371 (CA)

Morrow v. Zhang (2008), 432 A.R. 371 (CA);

      424 W.A.C. 371

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JL.017

Peari Morrow and Brea Pedersen (respondents/plaintiffs) v. Insurance Bureau of Canada (appellant/intervenor) and Her Majesty The Queen in Right of Alberta (appellant/statutory intervenor)

(0801-0041-AC)

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

(0801-0067-AC; 2008 ABCA 248)

Indexed As: Morrow v. Zhang et al.

Alberta Court of Appeal

Rowbotham, J.A.

June 17, 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, 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 province, as statutory intervenor, appealed and applied for a stay of enforcement, pending appeal, of those portions of the judgment declaring the MIR to be of no force and effect.

The Alberta Court of Queen's Bench, in a judgment reported (2008), 424 A.R. 131, dismissed the application. The province applied to the Court of Appeal for a stay of enforcement, pending appeal, for those portions of the judgment declaring the MIR to be of no force and effect. The insurer involved also sought a stay.

The Alberta Court of Appeal, per Rowbotham, J.A., dismissed the application, denying a stay. Although there was a serious issue to be tried, the province and insurer failed to establish irreparable financial harm and the balance of convenience favoured denying a stay.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - [See Practice - Topic 8954 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - 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 - In two actions heard together (Morrow and Pedersen), the trial judge held that the MIR violated equality rights (Charter, s. 15(1)) and was not saved as a reasonable limit prescribed by law (Charter, s. 1) - The province, as statutory intervenor, appealed and applied for a stay of enforcement, pending appeal, of those portions of the judgment declaring the MIR to be of no force and effect - The trial judge dismissed the application - Although there was a serious issue to be tried, the court rejected the submission that the province, enacting the MIR in the public interest, would suffer irreparable harm if a stay was not granted - The province conceded that it would not suffer irreparable harm absent a stay, but argued that the public interest would be harmed because of increased mandatory insurance premiums - The trial judge submitted that the evidence of increased premiums was speculative and that, in any event, the balance of convenience favoured not granting a stay - In the Morrow action, Morrow was awarded $21,000 plus prejudgment interest, disbursements and costs, and there was a possibility that Morrow would be unable to repay the insurers if the judgment was overturned on appeal - That constituted irreparable harm - The court stayed payment of the judgment awarded to Morrow in excess of the amount that would have been paid had the cap remained in place - The balance was to be held in trust by Morrow's counsel pending the outcome of the appeal - The province and the insurer involved applied to the Court of Appeal for a broader stay - The Alberta Court of Appeal, per Rowbotham, J.A., dismissed the application, denying a stay - Although there was a serious issue to be tried, the province and insurer failed to establish irreparable financial harm and the balance of convenience favoured denying a stay.

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8954 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 7].

Alberta (Treasury Branches) et al. v. Pocklington Financial Corp. et al. (1998), 228 A.R. 115; 188 W.A.C. 115 (C.A.), refd to. [para. 7].

Counsel:

A. D'Silva, for the applicants, Jian Yue Zhang and Xiao Fei Wei;

F.S. Kozak, Q.C., for the respondents/appellants by cross-appeal;

R. Davison, Q.C., for the appellant/respondent by cross-appeal, Insurance Bureau of Canada.

This application was heard on June 17, 2008, at Calgary, Alberta, before Rowbotham, J.A., of the Alberta Court of Appeal, whose following oral judgment was delivered on June 17, 2008, and filed on June 27, 2008.