*Since the writing of this blog, an application for judicial review was refused.

By appeal order dated October 5, 2018, Director’s Delegate David Evans overturned the decision of Arbitrator Drory in Abyan v Sovereign General Insurance Company (FSCO A16-003657, September 14, 2017)  in full, including his controversial finding that the MIG was unconstitutional.  In addition to the parties and the Attorney General of Ontario, the Ontario Trial Lawyers Association and the Insurance Bureau of Canada participated in the appeal as intervenors.

The appeal resulted from a preliminary issue hearing on the constitutionality of the MIG raised by Mr. Abyan prior to arbitration, which only he attended.  It was not clarified why the insurer did not participate in the preliminary issue hearing.  Mr. Abyan  took the position that together sections 2 and 18 of the SABS (i) precluded persons who sustained “minor injuries” that continued beyond normal recovery times, including those who suffered from chronic pain as a clinically associated sequelae; from receiving reasonable and necessary medical and rehabilitation benefits, and (ii) precluded injured persons who sustained minor injuries and had asymptomatic, undocumented pre-existing health conditions from achieving maximal recovery.  The Arbitrator held that the claimant’s section 15(2) Charter rights were infringed based on his acceptance of the claimant’s orthopaedic expert’s testimony that the phrase “clinically associated sequelae” found in the MIG meant “anything that is a following sequel of” in the natural course of recovery from treatment of an injury.  This captured chronic pain resulting from “minor injuries”.  As a result, he held that the MIG arbitrarily discriminated against individuals with these injuries, and did not minimally impair their rights.

On Appeal, Director’s Delegate Evans concluded that the decision regarding constitutionality was made in a “factual vacuum”, and that the issues of whether Mr. Abyan (i) suffered from chronic pain, (ii) was subject to the MIG, and (iii) had an undocumented pre-existing condition that prevented maximum medical recovery within the MIG should all have been decided first.  Director’s Delegate Evans held that the failure to address whether or not the claimant did in fact suffer from chronic pain was on its own sufficient grounds to set aside the decision and return the matter to arbitration.  He nevertheless went on to find that the Arbitrator failed to carry out any real constitutional analysis, including failing to carry out the second part of the section 15 test regarding whether or not the distinction found within the legislation created a disadvantage by perpetuating a prejudice or stereotype.  Delegate Evans also found that the Arbitrator failed to consider that the SABS did not draw a simple distinction between those that had and did not have chronic pain, and failed to establish that those distinctions that were made perpetuated an arbitrary disadvantage, prejudice or stereotype.  Lastly, Director’s Delegate Evans noted that it was well established that distinctions arising under social benefits legislation would not lightly be found to be discriminatory, and that the fact that such legislation left a group, albeit a vulnerable one, outside of its scheme did not necessarily give rise to a section 15 violation.  

Overall, it is difficult to find fault with Director’s Delegate Evans’ sound decision to send this matter back to arbitration.  Arbitrator Drory’s conclusions regarding the constitutionality of the MIG were problematic for several reasons, as discussed in greater detail here, and caused considerable trouble for insurers in the form of unnecessary constitutional challenges.  It is anticipated that these will subside in the face of this clarifying decision. 

If you have a question about this decision or a similar file, please contact Eric Grossman.