In Abyan v. Sovereign General Insurance Company (FSCO
A16-003657, September 14, 2017) Arbitrator Benjamin Drory has
released a surprising and unexpected decision finding that section
3 (the definition of "minor injury") and section 18(2) of
the Statutory Accident Benefits Schedule are
unconstitutional, as the sections infringe upon section 15(1) of
the Charter of Rights and Freedoms on the basis of
physical disability. Furthermore, he finds that the infringements
are not justifiable under section 1 of the Charter.
The substantive issues in this case are minimal and include
$1,995.32 for psychological treatment and the applicability of the
Minor Injury Guideline. The Applicant served
notice of the intention to raise a constitutional argument as a
preliminary issue on the Attorney General of Canada and the
Attorney General of Ontario. The Attorney General of Canada did not
respond and the Attorney General of Ontario simply advised the
Applicant that constitutional
