A recent arbitration decision by the Financial Services Commission of Ontario (FSCO) has ruled that the Minor Injury Guidelines within the Statutory Accident Benefits Schedule (SABS) are unconstitutional. In the decision, Abyan and Sovereign General [FSCO A16-002657], Arbitrator Benjamin Drory was asked to consider whether Sections 3 and 18 of the SABS unjustifiably infringe upon Sections 7 and/or 15 of the Canadian Charter of Rights and Freedoms. Arbitrator Drory noted that the Applicant has to first demonstrate that a Charter right has been infringed, and then it is up to the government to justify the infringement under Section 1 of the Charter. It was noted that it was unfortunate that no one from the government attended the hearing. In this particular case the Applicant suffered from chronic pain. The insurer, Sovereign General, had taken the position that, since the chronic pain was an “associated sequelae” from a minor injury, the MIG applied and the insured was, therefore, limited to a maximum of $3,500.00 in medical and rehabilitation benefits. The arbitrator decided that Section 7 of the Charter was not violated by the MIG, as it does not threaten his security of person, without accordance to the principles of fundamental justice. With respect to Section 15 of the Charter, Arbitrator Drory stated the following:
I find that the MIG violates section 15 of the Charter on both of the two grounds argued — it discriminates against those who suffer chronic pain as a clinically associated sequelae to the MVA, and against those who did not (and frequently could not) have their pre-existing conditions documented by a health practitioner before the MVA.
The decision can be read in its entirety at the link below. Abyan and Sovereign General – MIG Unconstitutional