Abyan v. Sovereign General Insurance Company, FSCO A16-003657

The Minor Injury Guideline is Found Unconstitutional

Date Case Heard: August 2 and 3, 2017 | Full Decision [PDF]

In this FSCO arbitration decision, the applicant/insured challenged the constitutionality of the Minor Injury Guideline (“the MIG”), specifically sections 3 and 18 of the Statutory Accident Benefits Schedule (“the SABS”).

Section 3 defines “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

Section 18 sets out the monetary limit for medical and rehabilitation benefits at $3,500 under the MIG. Subsection 18(2) states that the $3,500 limit does not apply if the insured can provide compelling evidence of a pre-existing medical condition.

The applicant argued that sections 3 and 18 of the SABS, together, violated section 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”), which prohibits discrimination based on seven enumerated grounds, namely physical disability.

More specifically, the applicant argued that these sections (i) preclude persons deemed to sustain “minor injuries” that continue beyond normal recovery times from receiving reasonable and necessary medical and rehabilitation benefits and (ii) preclude injured persons deemed to sustain “minor injuries” who had an asymptomatic pre-existing medical condition that was not documented by a health practitioner from achieving maximal recovery.

The arbitrator accepted the applicant’s arguments and found that the MIG violates section 15(1) of the Charter. The arbitrator noted that the SABS did not define “clinically associated sequelae” in its definition of minor injury but concluded that it simply means “anything that is following sequel of” in the natural course of recovery from treatment of an injury. Therefore, individuals who suffer from chronic pain resulting as a sequel from a motor vehicle accident become caught in the MIG and are subject to the $3,500 cap in ways that many other accident victims do not – including some who arguable suffer from less severe conditions.

Therefore, the arbitrator concluded that the MIG violated the Charter as it discriminated against those who suffer from chronic pain as “a clinically associated sequelae” to a motor vehicle accident. The arbitrator also found that it discriminated against those who did not have their pre-existing conditions documented by a health practitioner before a motor vehicle accident.

The arbitrator went on to conclude that these violations were not justified under section 1 of the Charter.

Read the full decision [PDF]
Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.