Fridays With Rogers Partners

At our muffin meeting, we discussed a Divisional Court decision which those who handle statutory accident benefits claims have been waiting for.

A previous decision of the Financial Services Commission of Ontario caused a great deal of controversy. The arbitrator held that the Minor Injury Guideline (“MIG”) in the Statutory Accident Benefits Schedule was unconstitutional because it violated the equality rights in section 15 of the Charter. The Director’s Delegate overturned the decision.

The claimant then applied for judicial review. In Abyan v. Financial Services Commission of Ontario, 2019 ONSC 7247, the Divisional Court recently dismissed the application.

The Divisional Court held that it was premature for the arbitrator to make a finding of constitutional invalidity. Before deciding whether or not the MIG is unconstitutional, the arbitrator first needed to determine the nature of the claimant’s injuries, whether those injuries required continuing treatment, and whether the MIG adversely affected the claimant.

In other words, the arbitrator has to consider: does the MIG apply to the case and does it preclude the claimant from receiving benefits which would otherwise be available?

A robust factual record is required when analyzing constitutional challenges to the Statutory Accident Benefits Schedule. 

Therefore, the Divisional Court did not make a determination of whether or not the MIG is unconstitutional. The decision of the Court is without prejudice to the ability of the claimant to raise the constitutional issues, if necessary, once a full decision on the merits of the claim is made by the arbitrator.