15-Feb-2008

In the 87 page decision of  Morrow v. Zhang, 2008 ABQB 98, released on February 8, 2008, the Alberta Court of Queen’s Bench ruled on constitutional challenges to Alberta’s minor injury “cap” legislation.  The Court held that Alberta’s Minor Injury Regulation (“MIR”) did not contravene s. 7 of the Canadian Charter of Rights and Freedoms, as alleged by the Plaintiffs.  However, the Court ultimately struck down Alberta’s minor injury “cap”, holding that the MIR did contravene s. 15(1) of the Charter, being impermissibly discriminatory on the basis of physical disability.

The Court accepted that the MIR’s objective of reducing insurance premiums to maintain affordable mandatory automobile insurance was a pressing and substantial one.  Also, the imposition of the “cap” was rationally connected to achieving this goal.  However, the Court was not prepared to uphold the MIR under s. 1 of the Charter, not being satisfied that Alberta’s scheme was sufficiently tailored so as to minimally impair the Plaintiffs’ rights, while still achieving the Government’s objective.  Nor was the Court satisfied that the positive effects of reduced premiums was sufficient to outweigh the deleterious effects of the MIR on minor injury victims.

The Court struck down the MIR and refused to hold that the decision would only effect “minor injury” victims as of the date of judgment.  Accordingly, the Court granted relief retroactively.

The decision also notes that the Crown indicated to the Court that, in the event of an adverse decision, there would be an appeal and that the Crown would apply for a stay of the ruling pending appeal.

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