In Co-operators Insurance Company v. Bennett, 2024 ONSC 467, the applicant, Ms. Bennett, was involved in a car crash. She applied for accident benefits through her auto insurer, Co-operators. Co-operators determined that she suffered a “minor injury” as defined by the Statutory Accident Benefits Schedule (“SABS”) and placed her in the Minor Injury Guideline (“MIG” or “Guideline”). In the MIG, Ms. Bennett’s med/rehab limits were capped at $3,500 plus HST in accordance with the Guideline and she was not entitled to any attendant care.
Co-operators later removed Ms. Bennett from the MIG based on her pre-existing fibromyalgia and spinal stenosis. She was removed from the MIG because her pre-existing conditions would prevent her from reaching maximal medical recovery from her accident-related injuries with just $3,500 of treatment available to her.
Once Ms. Bennett was removed from the MIG she sought attendant care benefits. In particular, she submitted a treatment plan to have her attendant care needs assessed.
Co-operators, however, denied the treatment plan. It took the position that while it was true that Ms. Bennett was out of the Minor Injury Guideline, she still had a “minor injury” as defined by the SABS. It’s just that her “minor injury” was exempt from the MIG. Further, because she had a “minor injury”, Co-operators was not liable to pay attendant care benefits to her pursuant to s. 14. 2. and s. 25. (2) of the SABS. Those sections state (emphasis added):
Insurer liable to pay benefits
14. Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
…
2. If the impairment is not a minor injury, attendant care benefits under section 19.
25. (2) …an insurer is not required to pay for an assessment or examination conducted in the insured person’s home unless the insured person has sustained an impairment that is not a minor injury.
Co-operators’ argument seemed to be based not only on the wording of s. 14 and 25 of the SABS, but on the wording of the MIG itself. It seems the argument was as follows. If someone is removed from the MIG because of a pre-existing condition that prevents their “minor injury” from reaching maximum medical recovery within the $3,500 limits of the MIG, then they still have a “minor injury” as defined by the SABS. It’s just that their “minor injury” will require more than $3,500 of treatment to heal properly. Therefore, you can be outside of the MIG and still have a “minor injury”. To that end, the relevant portion of MIG reads as follows (emphasis added):
Impairments that do not come within this Guideline
An Insured person’s impairment does not come within this Guideline if the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition …that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit…
Ultimately, the Licence Appeal Tribunal (“LAT” or “Tribunal”) found at first instance that “minor injuries” are subject to the MIG and the MIG only applies to “minor injuries”. Therefore, if an insured person is taken out of the MIG, they no longer have a “minor injury” and they are put into the next tier of benefits, which, in the standard auto policy, is $65,000 for med/rehab and attendant care benefits collectively.
Co-operators moved for reconsideration of the Tribunal’s decision, but its reconsideration request was denied by the LAT.
Co-operators then appealed to Divisional Court. The Divisional Court found that the LAT did not commit any error of law and arrived at the correct decision. The court found that the Tribunal’s decision was consistent with LAT jurisprudence, was consistent with the consumer protection objection of the SABS and was logical when looking at the SABS as a whole.
In fact, if the LAT had decided otherwise, then there would be a third group of non-catastrophically impaired claimants never ever mentioned in the SABS who were outside of the MIG and yet still had “minor injuries”, and who had up to $65,000 of med/rehab and attendant care benefits and yet, unlike any other claimant, could not use any of those $65,000 limits towards attendant care. This did not make sense to the Divisional Court. Here is what the court held at paragraph 27:
[27] The overall scheme of the SABS supports the LAT’s finding that claimants with minor injuries and their placement within the framework for treatment of only minor injuries under the MIG are intertwined concepts. This interpretation is consistent with the objectives of the MIG and the scheme of this insurance legislation. Having minor injuries alone functions as a limit on those claimants, both by keeping them within the MIG and by limiting their entitlement to in-home assessments.
Co-operators sought leave to appeal the Divisional Court’s ruling. Leave was denied by the Ontario Court of Appeal on October 3, 2024. The Divisional Court’s decision is now the final word on the matter.
So, in the end, all “minor injuries” belong in the MIG and the MIG only applies to “minor injuries”. Once you are out of the MIG, you no longer have a “minor injury”, and attendant care benefits are available to you.
Congratulations to OTLA member Lawson Hennick for his four rounds of successful arguments on this issue – first during his client’s hearing before the Licence Appeal Tribunal, then on reconsideration before the LAT, then at Divisional Court and then finally at the Court of Appeal.
The Court of Appeal’s endorsement denying leave can be found here.
