In Morrow v. Zhang, 2009 ABCA 215, the Alberta Court of Appeal overturned the trial judge’s ruling that the Minor Injury Regulation, AR 123/2004 (the "MIR") was unconstitutional. In its decision , the Court addressed three issues:
1) Whether the MIR violated s. 15 of the Charter relating to whether minor injury victims were being discriminated against under the MIR;
2) Whether the MIR violated s. 7 of the Charter relating to whether the MIR offended the principles of fundamental justice; and
3) Whether the MIR would be saved and justified under s. 1 of the Charter in the event the MIR violated Charter.
Issue #1 - The Section 15 Analysis
Although deferring to the trial judge’s finding that soft tissue injury claimants suffered from stereotypes, the Court held that the trial judge erred in law in assessing the perpetuation of the stereotype in his s. 15 analysis, particularly because the trial judge failed to consider the MIR in conjunction with the DTPR. Rather, the Court found that the DTPR promotes and assists treatment of soft tissue injury claimants. Further, the Court held that both the MIR and DTPR, when considered together, "provides for an individual process, which recognizes the reality of the claimant’s injuries." Therefore, the legislation was not discriminatory.
The Court also recognized that other jurisdictions had placed a limit on damages for pain and suffering in finding that the legislation was not discriminatory under s. 15 of the Charter.
Issue #2 - Section 7
The Respondents submitted a cross-appeal on the basis that the legislation infringed the s. 7 rights of the Plaintiffs. The Respondents submitted that the legislation violates "their physical and psychological security by directing certain medical treatments" under the legislation.
In dismissing the cross-appeal, the Court, in agreeing with the trial judge, held that the MIR does not coerce any treatment measures as well as any failure to adhere to the DTPR would merely result in financial consequences, which was not of such severity as affecting the fundamental security of the person. Rather, the legislation allows for flexibility in treatment as well as maintaining the discretion of a claimant’s health care practitioner in treating the claimant.
Issue #3 - Section 1
The Court did not engage in a s. 1 Oakes analysis as the Court did not find any breach of Charter rights.