In Abyan v. Sovereign General Insurance Company (FSCO A16-003657, September 14, 2017), Arbitrator Dory found two provisions of the Statutory Accident Benefits Schedule ("SABS") to be unconstitutional as they infringe upon s.15(1) of the Charter of Rights and Freedoms on the basis of physical disability.
The specific provisions in dispute were: (1) the definition of "minor injury" in s. 3, and (2) the exception to the Minor Injury Guideline ("MIG") when an insured has a documented pre-existing condition that will prevent the insured from achieving maximum medical recovery, pursuant to s.18(2).
This was a results-based decision with problematic findings that were at least partially based on evidence that did not appear to have been in the evidentiary record before the arbitrator.
Further, it was apparent that if there was appropriate opposition to the constitutional argument, the result would have been different. The Attorney General of Ontario and the insurer did not attend despite being given notice.
Thankfully, in a decision that was expected but left insurers and counsel very concerned until it was delivered, Director's Delegate David Evans has appropriately rescinded Arbitrator Dory's decision in its entirety. The MIG is, therefore, not unconstitutional.1
In the underlying decision, the claimant brought a preliminary issue motion alleging that it is unconstitutional that chronic pain is captured as "clinically associated sequelae" in the definition of "minor injury" in s.3 of the SABS.
In addition, the claimant argued that it is unconstitutional to require him to show that his pre-existing conditions were documented by a health practitioner before the accident, as required by s.18(2).
The arbitrator found that the definition of "minor injury" was unconstitutional as the inclusion of a "clinically associated sequelae" captures individuals suffering from chronic pain under the MIG, while others suffering from arguably lesser injuries are not.
Moreover, the arbitrator found that the requirement that a pre-existing health condition must have been "documented by a health care practitioner before the accident" in order to not be subject to the MIG, has a discriminatory effect against individuals such as those without access to OHIP, or those who were asymptomatic prior to the accident and would not have had their conditions documented.
The arbitrator ultimately found that both s.3 and s.18(2) of the SABS were in breach of s.15 of the Charter.
The matter was appealed to the Director's Delegate. Unlike the underlying decision, the insurer was represented by counsel at the appeal, and there were three intervenors: Insurance Bureau of Canada, Ontario Trial Lawyers Association, and the Attorney General of Ontario.
In his decision, Director's Delegate David Evans found that the arbitrator erred in reaching conclusions as to whether these provisions are constitutional in a factual vacuum. In this regard, he noted that, with respect to s.3, the arbitrator should have first determined if the claimant had, in fact, suffered from chronic pain.
With respect to s.18(2), the arbitrator should have first determined if the $3,500 limit prescribed by s.18(1) applied and, if so, make a finding of fact as to whether the claimant had an undocumented pre-existing condition that would have prevented him from achieving maximal recovery if subjected to the $3,500 limit.
The Director's Delegate held that, for these reasons alone, the decision should be set aside. Nevertheless, he went on to make comments regarding other submissions.
He stated that the arbitrator "can hardly be said to have done any analysis". He outlined that the arbitrator failed to consider that the SABS "does not draw a simple distinction between those who have and those who do not have chronic pain" (for example, for those that suffer a broken leg and are not subject to the MIG, there is no distinction between those that do and do not suffer chronic pain as a result).
Further, in terms of the s.15 analysis, the Director's Delegate cited Miceli-Riggins v. Canada (Attorney General)2,wherein the court stated that distinctions arising under social benefits legislation such as the SABS, "will not lightly be found to be discriminatory" and that "one cannot simply conclude there is a s.15 violation from the fact that social benefits legislation leaves a group, even a vulnerable group, outside the benefits scheme."
In this regard, the court in Miceli further stated that "social benefit programs often are expressed in a complex web of interwoven provisions" and "altering one filament of the web can disrupt related filaments in unexpected ways, with considerable damage to legitimate government interests."
Accordingly, the appeal was allowed and the arbitrator's decision was rescinded in its entirety with the issue of the claimant's entitlement to a psychological assessment remitted to arbitration.
In his controversial decision, Arbitrator Dory stated on multiple occasions that the decision was only of application to that case and was not a declaration of general invalidity applicable to any other cases.
While there was some comfort in knowing that the decision was only of limited application, there was ongoing concern for insurers that these arguments would be consistently raised at the LAT, particularly with cases involving chronic pain.
Thankfully, there is now clarity on the constitutionality of the MIG as a result of this well-reasoned and necessary appeal decision.
 Appeal Order P17-00068
 2013 FCA 158 (CanLII)
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