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December 2013

Recent FSCO Appeal Decision

Belair Insurance Company Inc. and Lenworth Scarlett


Matt Dugas
Matthew Dugas,

By Matthew Dugas

FSCO released the appeal decision in Belair Insurance Company Inc. and Lenworth Scarlett. The decision by Director's Delegate David Evans overturned the preliminary issue hearing decision by Arbitrator Wilson, which found that the claimant was not subject to the minor injury guideline (the MIG).

The appeal sticks to evaluating individual points in Arbitrator Wilson's decision, and does not offer significant guidance on whether the MIG applies to individual claimants. In fact, it did not find that the claimant's injuries fall within the MIG; rather, it found Arbitrator Wilson's decision was incorrect and ordered a new hearing. For accident benefits insurers, the MIG itself and the Statutory Accident Benefits Schedule (the SABS) remain the authorities on whether an insured's impairments are subject to the MIG.

However, there are findings of law in the appeal that provide some certainty about the MIG in a general sense, that are useful to insurers adjusting files and litigating disputes. These include:

  • The appeal ordered the matter remitted for a new hearing before a different arbitrator, as opposed to a further preliminary issue hearing. For future MIG disputes, it is important to note that the appeal questioned whether a preliminary issue hearing was the proper venue for a determination of whether the MIG applies to an insured.

  • [The appeal] found that insureds do not shift the burden simply by submitting a treatment which alleges the injury is not a minor injury.

    Arbitrator Wilson had found that the burden of proof rests with the insurer. The appeal decision disagreed, finding that the claimant has the burden of proving that they are entitled to a particular benefit. The appeal finds that "Nonetheless, I find that the ultimate burden always rests with the insured", and that the burden does not shift to insurers when they challenge a claim. This is a significant finding that will be useful to insurers, and not limited to MIG disputes. In relation to the MIG, it found that insureds do not shift the burden simply by submitting a treatment plan which alleges the injury is not a minor injury, which is useful to insurers both for litigating disputes and adjusting claims.

  • Also useful to insurers, the appeal found that the MIG is binding as a part of the SABS. In doing so, it also rejected the claimant's argument that only the portions of the MIG specifically referenced into the SABS should be considered binding, although it is noted that this finding is not as unequivocal as the finding that the MIG is binding.

The appeal criticized Arbitrator Wilson's findings in the following ways:

  • The claimant had soft tissue injuries, but it was alleged he also had chronic pain, depressive symptoms and TMJ disorder. In the reasons, the appeal found that Arbitrator Wilson failed to address why those additional complaints are distinct from his soft tissue injuries and were not clinically associated sequelae, which would fall within the minor injury definition.

  • Along the same lines, the appeal found Arbitrator Wilson had also failed to address whether the claimant's impairments were "predominantly a minor injury", even if the claimant had injuries that are not "minor injuries" as defined. The appeal was particularly critical of Arbitrator not addressing this part of the definition, instead finding that the claimant comes outside the MIG when the "totality of his injuries are assessed."

  • The appeal was critical of Arbitrator Wilson's discussion of the "compelling evidence" criteria, which constituted a large part of Arbitrator Wilson's decision. Arbitrator Wilson discussed the "compelling evidence" requirement in relation to whether an impairment was a minor injury subject to the MIG. However, the SABS and MIG only require "compelling evidence" of a pre-existing condition as a specific exemption to the MIG for people who nevertheless have a minor injury, which was not at issue in these facts. In any case, the appeal found fault on a few levels with Arbitrator Wilson's reasoning that "compelling" essentially meant "credible and convincing" based on comparing it with the French version of the MIG (but not the French SABS).

  • Finally, the appeal made the notable finding that Arbitrator Wilson breached procedural fairness in coming to his decision. Examples of this were raising his own arguments (such as the argument with the French version), conducting his own research and reaching his own conclusions without providing counsel with the opportunity to provide submissions. Arbitrator Wilson relies on several precedents not raised by counsel in the hearing, and without giving counsel an opportunity to respond. One example was Arbitrator Wilson's application of section 233 of the Insurance Act. At the appeal, both parties agreed that section 233 was not applicable. With respect to Arbitrator Wilson's use of section 233, the appeal stated that "an arbitrator raising his or her own issues and doing his or her own research without seeking submissions from counsel runs the risk of referring to irrelevant law or cases, as happened with section 233."

While not a conclusive interpretation of how the Minor Injury Guideline will be interpreted, this appeal decision is nevertheless favourable to insurers insofar as it takes away the ability of opposing counsel to cite Arbitrator Wilson's highly restrictive application of the MIG.



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