The Minor Injury Guideline - A Troubling Decision Rescinded

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.