Expect more Charter challenges in benefit disputes
Author(s): Stephen M. Birman
December 11, 2017
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.
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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