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Expect more Charter challenges in benefit disputes

Focus on: Insurance law
|Written By Michael McKiernan
Expect more Charter challenges in benefit disputes
Kadey Schultz is not confident that the minor injury guideline will survive further constitutional scrutiny.

The provincial attorney general’s failure to defend the constitutionality of its Minor Injury Guideline has helped open the floodgates to Charter challenges in accident benefit disputes, says a Toronto insurance lawyer.

Under the Statutory Accident Benefits Schedule, the MIG limits medical and rehabilitation expenses to $3,500 for minor injuries, defined as one or more of a “sprain, strain, whiplash, associated disorder, contusion, abrasion, laceration or subluxation,” including any “clinically associated sequelae to such as injury.”

But in his Sept. 14 decision in Abyan v. Sovereign General Insurance Company, Financial Services Commission of Ontario arbitrator Benjamin Drory ruled that the MIG discriminates against chronic pain sufferers, breaching s. 15 of the Charter, which guarantees equality before the law.

Alon Barda, a lawyer with Toronto firm Rogers Partners LLP, who works mainly on behalf of insurers, says he was shocked not only by the decision but also by the Ontario A.G.’s no-show, despite being properly served with notice of the case.

“I can only assume they didn’t think the decision would end up where it did,” Barda says. “It’s a very difficult one to take, because I think that if they had attended and made proper submissions, it would have changed the outcome entirely.”

According to Drory’s decision, Ontario’s attorney general rejected an invitation to intervene in the challenge, advising the claimant that “constitutional questions should only be heard as necessary, and not in a factual vacuum.”

However, the insurer in the case also declined to take part in the hearing, which meant the applicant’s evidence went unchallenged before the arbitrator.

Individual FSCO decisions are not binding on any of its other arbitrators, let alone decision-makers in another forum, such as the Licence Appeal Tribunal, where all accident benefits matters have been diverted for accidents that took place since last summer. However, Barda says that won’t stop plaintiffs’ lawyers from jumping on the anti-MIG bandwagon.

“I can’t imagine any MIG case involving chronic pain where I’m not going to be faced with a constitutional argument. The limited precedential value doesn’t matter — I expect to see it raised every time,” he says.

Barda may belatedly get his wish to see the provincial attorney general intervene on the issue, as Sovereign General has launched an appeal of Drory’s decision. Emilie Smith, a spokeswoman for the attorney general’s office, said in a statement that her office had received the notice of appeal but that it would “be inappropriate to comment further” while the case is before the courts.

However, Mohamed Elbassiouni, the paralegal who acted for Abdirahman Abyan, the accident victim in the case, says the province has confirmed it will take part this time. But in the meantime, he says, around 40 claimants have already filed their own Charter challenges in MIG cases at the LAT, mirroring Abyan’s arguments.   

Kadey Schultz, co-founder of Toronto insurance defence boutique Schultz Frost LLP, is less confident than Barda that the MIG will survive further constitutional scrutiny. She has had her doubts about its application since it was introduced in 2010, because of the difficulty of applying the same cap to all people, including those with existing conditions associated with age or excess weight.

“I’m amazed that it took until now to be argued, and obviously my concern for my clients is that we will see a lot more of it,” Schultz says.

In Abyan, the applicant, a 51-year-old taxi driver, developed chronic neck and back pain after a three-vehicle crash in 2015. His insurer categorized his claim under the MIG, claiming the chronic pain was an “associated sequelae” from a minor injury.

Under the SABS, applicants are able to remove themselves from the strictures of the MIG if they can show they had a pre­existing condition that will prevent them from achieving maximum recovery with the $3,500 limit in place. 

Despite presenting expert evidence that his chronic pain was caused when the accident aggravated his pre-existing degenerative spinal condition, Abyan was unable to take advantage of the exception as the disease was not “documented” before the accident, as required by the SABS. In his decision, Drory agreed with his argument that the MIG breached s. 15 of the Charter in two ways.

Despite the lack of government representation at the hearing, he went on to find that the differential treatment could not be justified under s. 1 of the Charter because the MIG could be rewritten so that it did not draw in chronic pain sufferers.  

Stephen Birman, a partner at Toronto personal injury law firm Thomson Rogers, says the decision should be enough to spell the end of the road for the entire MIG.

“It’s a very strong decision that should be very persuasive at FSCO and the LAT. It’s going to be hard for any insurer to justify keeping chronic pain victims within the MIG, knowing that this decision is out there,” he says. “Personally, I think the MIG should be abolished entirely, and hopefully this will give the provincial government the push it needs to get rid of it.”           


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