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

The Court, in reviewing the law, determined that there are two principal factors in assessing discrimination cases. Firstly, whether there is "perpetuation of prejudice and disadvantage to members of a group on the basis of personal characteristics identified in the enumerated and analogous grounds." Secondly, whether there is "stereotyping on the basis of these grounds that do not correspond to a claimant’s or group’s actual circumstances and characteristics."

Furthermore, the Court held that a legislative scheme must be considered in its entirety in determining whether the legislation offends s. 15 of the Charter. The Court found that the trial judge erred in law by failing to consider the Diagnostic and Treatment Protocols Regulation (DTPR) in conjunction with the MIR. The Court found that the DTPR and MIR legislation were inter-dependant and inter-related. Both the MIR and the DTPR were a "package" of legislation to address insurance reforms.

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 further stated that "mandatory automobile insurance is a public policy choice" reflecting society’s need to compensate injured parties resulting from motor vehicle accidents. The Court, in agreeing with the Crown’s submissions, also stated that the legislative scheme had many purposes, ranging from the affordability of insurance, potential for increased numbers of uninsured drivers, and compensating victims of motor vehicle accidents. The Court held that the trial judge erred by over-emphasizing the reduction in premiums in considering the purpose of the legislation.

The Court determined that the legislation corresponded to the needs of accident claimants and, therefore, was not discriminatory. In reaching this conclusion, the Court found that the legislation classifies the injuries as WAD I or II, treatments are provided for minor injuries, and more extensive benefits and assessments are provided to persons suffering from more significant injuries. However, the Court held that the $4,000 limit on damages for pain and suffering would be unlikely to address each individual’s personal circumstances. Nonetheless, the Court held that the legislation allows for the treatment of individuals on an individualized basis. Thus, the Court found that the legislation is not discriminatory when considered as a whole.

Moreover, in considering the nature of the interest affected under the s. 15 analysis, the Court found that the Supreme Court had already placed a limit on damages for pain and suffering in the Andrews trilogy. The Court further noted that the limits placed on damages pursuant to the Andrews trilogy had "survived Charter scrutiny." The Court also observed that no interest relating to a claimant’s social or constitutional rights were affected by the legislation. Rather, the only interest affected was an economic one. The Court did not agree with the trial judge’s assessment that damages for pain and suffering a fundamentally important from a societal perspective.

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.