Judge dismisses application for stay of decision to eliminate Alberta’s minor injury cap

An Alberta judge has dismissed the application for a temporary stay of a decision that eliminated Alberta’s Cdn$4,000 cap on minor auto injuries, pending an appeal of Morrow v. Zhang and Pedersen v. Thournout.
In his decision not to grant a stay, Whittmann had to consider whether the consequences of not granting a stay caused “irreparable harm.”
“the consequences of not granting a stay to the insurers relates to expense and administrative inconvenience,” Whittmann wrote. “These consequences are undoubtedly alleviated by the fact that the insurance industry is currently in a soft market that began in 2003-04, before the imposition of the MIR [the legislation that established the cap].
“Additionally, the evidence at trial disclosed that the industry has made historic profits in 2004, 2005 and perhaps 2006. It may also be open to the Crown to freeze insurance premiums pursuant to s. 661 of the Insurance Act until the appeal has been heard.”
In Morrow v. Zhang, two plaintiffs, Peari Morrow and Brea Pederson, suffered soft tissue injuries arising out of two separate automobile accidents.
The plaintiffs challenged the constitutionality of the MIR, which imposes a Cdn$4,000 cap on non-pecuniary damages with respect to minor injuries that are caused by an accident arising from the use or operation of a motor vehicle and that do not result in serious impairment.
Wittman ruled the cap did in fact constitute “an unjustifiable breach of the s. 15(1) equality rights of minor injury victims based on the enumerated ground of disability,” and that “the appropriate remedy for this case is the nullification of the MIR.”