In 2010, the Minor Injury Guideline ("MIG")
was added to Ontario's Statutory Accident Benefits
Schedule. Section 3(1) of the Schedule defines a
"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(1) of the Schedule limits to
$3,500 the total amount of medical and rehabilitation benefits
payable by an insurance company to an injured person who has
suffered "predominantly minor injuries" as a result of an
Belair v. Scarlett is the first arbitration decision
which interprets the application of the MIG. Mr. Scarlett
was in a car accident and suffered soft tissue injuries, sprains,
and lacerations, as well as depressive symptoms, chronic pain, and
temporomandibular joint disorder ("TMJ"). The arbitrator
accepted that Mr. Scarlett's psychological condition, chronic
pain, and TMJ were separate and distinct from the minor injuries
and were not sequelae thereof, meaning that Mr. Scarlett's
injuries did not fit the definition of minor injuries in the
Schedule and Mr. Scarlett was not subject to the $3,500
cap on medical and rehabilitation benefits. On appeal, the
decision of the arbitrator was sent back for a new hearing.
The appeal decision provides useful guidance in relation to the
following three questions: (1) whether the MIG is binding
or advisory in nature; (2) who has the evidentiary burden to
establish that an injury is minor in nature; and (3) when a
non-minor injury sustained in an accident will be considered
separate and distinct from the minor injuries also sustained in the
accident, and not sequelae to them.
On appeal, the Director's Delegate held that the
MIG is not merely advisory but binding on accident
benefits decision-makers. This means that such a decision-maker is
not free to depart from the MIG scheme unless the
departure is itself authorized by the MIG. Further,
the Insurance Act was recently amended to state explicitly
that guidelines such as the MIG are binding (s.283 (2.1)).
The combined effect of Belair v. Scarlett and the new
s.283 (2.1) appears to be that unless an insured meets the
statutory requirements which would take the insured out of the
MIG, a decision-maker, even in the most compelling of
cases, cannot award more than $3,500 in medical and rehabilitation
The Director's Delegate also held that it is the insured
person who must demonstrate that his or her injuries are more than
minor in order to be entitled to higher degree of coverage. Placing
the burden of proof on the insured makes it more difficult for him
or her to obtain coverage beyond the $3,500 cap.
Finally, the Director's Delegate provided some guidance in
relation to when an injury will be considered a sequelae or
consequence of a minor injury. In relation to the first
requirement, the Director's Delegate held that the $3,500 limit
will not be set aside only because some of the injuries are not
minor. Rather, the $3,500 cap will only be set aside if the
injuries are not "predominantly" minor. While the
Director's Delegate did not define the word
"predominantly," it seems clear that the wording will
make it more difficult for an insured to fall outside the
Overall, it appears that the appeal decision in Belair v.
Scarlett will make it more difficult for accident victims who
have suffered mostly "minor" injuries, as defined by the
MIG, to obtain compensation for medical and rehabilitative
expenses in excess of $3,500.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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