There has been great debate about whether Australia should align with other countries which currently have a Bill of Rights. However, this Canadian case shows how a Bill of Rights may impact on other legislation. The case also raises the question: would an Australian Bill of Rights mean the abolition of compensation discrimination?
On June 12, 2009, the Alberta Court of Appeal released its decision in Morrow v Zhang [2009] ABCA 215, determining that the Minor Injury Regulation, A.R. 123/2004 (MIR) was constitutionally valid. The MIR imposes a $4,000 cap on non-pecuniary damages for 'minor injuries'.
The plaintiffs, Morrow and Pedersen, had suffered personal injury in a car accident and their injuries fell within the scope of the MIR. At the trial, Justice Wittman determined that their respective non-pecuniary damages exceeded $4,000 and that the MIR cap would apply. However, he considered that the provisions of the MIR were discriminatory to persons suffering minor injuries and held that such regulations violated the rights of Morrow and Petersen under section 15(1) of the Canadian Charter of Rights and Freedoms (Charter).
The Alberta Government and the Insurance Bureau of Canada appealed this decision. In a unanimous judgment, Justices Rowbotham, McFadyen and O'Brien allowed the appeals, and set aside the decision of the trial judge.
The Court of Appeal concluded that the trial judge failed to analyse the insurance reforms enacted by the Alberta Government in 2004 and erred in concluding that the insurance reforms disadvantaged individuals suffering minor soft tissue injuries. Considering the entire scheme, which included protocols for diagnosing and treating minor injuries, increases in certain medical benefits and caps on car insurance premiums, the Court of Appeal concluded that the legislation 'as a whole' responded to the needs and circumstances of those suffering from minor soft tissue injuries.
The Court of Appeal acknowledged that the provisions of the MIR made a distinction on the basis of disability. However, it held that the distinction between the minor injury claimants and those suffering other injuries from motor vehicle accidents did not amount to discrimination and did not infringe section 15 of the Charter.
As a result of the Appeal decision, the cap under the MIR is immediately operative (adjusted to $4,504 to account for inflation). The Insurance Bureau of Canada contends the latest court decision will mean 'affordable rates' for Alberta drivers.
Morrow and Pederson intend to appeal the case to the Supreme Court of Canada and have until mid-September 2009 to file the Appeal.
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