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Insurance - Auto - 'Minor Injuries'

. Co-Operators Insurance Company v. Bennett

In Co-Operators Insurance Company v. Bennett (Div Court, 2023) the Divisional Court considered the 'minor injuries' SABS provisions and the Minor Injuries Guideline:
[6] Ontario’s Motor Vehicle Legislation is governed by the Insurance Act, R.S.O. 1990, c. I.8. Section 268(1) of the Insurance Act deems that every motor vehicle insurance liability policy provides for the statutory benefits provided in the SABS.

[7] The LAT is a specialized tribunal with exclusive jurisdiction to resolve disputes “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”: Insurance Act, R.S.O. 1990, c. I.8, s. 280(3).

[8] Section 268.3 of the Insurance Act empowers the superintendent to issue guidelines on the interpretation and operation of the SABS.

[9] One such guideline issued by the superintendent is the Minor Injury Guideline (the “MIG”). The objectives of the MIG are to speed access to rehabilitation, improve utilization of healthcare resources, provide certainty around cost and payment for insurers, and be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries as defined in the SABS. The MIG sets out the goods and services that will be paid for by the insurer without approval if provided to an insured person who has sustained a minor injury.


The Statutory Framework

[11] “Minor injury” and the “MIG” are defined terms in the SABS:
“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury;

“Minor Injury Guideline” means a guideline,

(a) that is issued by the Chief Executive Officer under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and

(b) that establishes a treatment framework in respect of one or more minor injuries;
[12] Section 18(1) of the SABS under the Insurance Act limits recovery for accident victims who suffer minor injuries benefits to a cap of $3,500 as follows:
Monetary limits re medical and rehabilitation benefits

18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. O. Reg. 34/10, s. 18 (1); O. Reg. 123/19, s. 2 (1).
[13] An injured person like the respondent may be excluded from this limit or to the limits on good and services that are authorized under the MIG, by way of s. 18(2) of the SABS which reads:
(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline. O. Reg. 34/10, s. 18 (2); O. Reg. 347/13, s. 1; O. Reg. 123/19, s. 2 (2).
[14] In the case of more serious injuries, higher caps apply. These are set out in s. 18(3). The caps also apply to medical, rehabilitation and “where applicable” to attendant care benefits, (including assessments) by virtue of s. 18(5) of the SABS.


The LAT Decision

[20] In rejecting the appellant’s submission, the LAT found that once a claimant is removed from the MIG, the claimant is no longer subject to the limits under the MIG for minor injury claimants, and the test for services becomes what is “reasonable and necessary” under s. 14(2). The LAT concluded that the insurer cannot “split the determination” and continue to categorize the injuries as “minor” once an injured person has been removed from the MIG.

[21] The LAT also found that s. 14(2) does not mention attendant care assessments, but merely excludes attendant care benefits for minor injuries such that, in any event, this subsection did not prevent the respondent from being eligible for an assessment.

[22] Finally, the LAT found that the use of the language in s. 25(2): “impairments that are not a minor injury” does not support a simultaneous finding that a person has sustained a minor injury while being placed beyond the treatment limits of the MIG.

[23] The LAT emphasized the treatment plan provisions in s. 38(3), extracted above:
I find the wording of s. 38(3)(c)(1)B is clear. Where there is an initial determination by an insurer that an insured suffered predominantly minor injuries, but, as a result of pre-existing medical conditions, the person no longer remains in the MIG or under the funding limits of the MIG. Once the determination has been made that H.B. is removed from the MIG based on pre-existing conditions, there is no further MIG discussion regarding her injuries and impairments. She now has access to the next level tier of funding for medical and rehabilitation benefits and assessments that are reasonable and necessary. Further, her impairments are no longer considered predominantly minor.
[24] To summarize, the LAT’s interpretation of the scheme is that a minor injury alone means the claimant is subject to the MIG, and the other constraints that flow from this categorization. However, once a claimant is put into the unusual category of having suffered a predominantly minor injury, alongside a documented pre-existing medical condition that will prevent maximal recovery, they are both not subject to the MIG, and cannot be said to have an impairment that is solely or considered “predominantly a minor injury.” In other words, one must consider the entire description of their situation that includes a pre-existing medical condition and the expectation that the claimant is not expected to achieve maximal recovery if they are subject to the limits of the MIG.

[25] The appellant requested reconsideration on the basis the LAT had conflated the defined term “minor injury” with the MIG in interpreting the SABS as it applied to the respondent. The LAT rejected this submission and upheld the decision, finding that minor injuries are intertwined with the operation of the MIG framework. Once an insurer has removed a claimant from the MIG, whether it be because of “pre-existing injury, non-minor physical injuries or for psychological or chronic pain impairments (or any other such impairment not captured under the definition of a minor injury), there is no further reliance on any part of the MIG framework.


[26] I agree with the LAT’s analysis because it accords with the principles of statutory interpretation by reading the words of the SABS in their ordinary and grammatical meaning, in harmony with the scheme and object of the SABS, and in accord with the intention of the legislature. The LAT rejected the respondent’s piecemeal approach to interpretation, which would have separated minor injuries from the MIG constraints and applied this in a way to limit benefits payable to persons with a combination of pre-existing conditions, minor injuries from a motor vehicle accident and evidence that they could not achieve maximal recovery within the MIG constraints. This would lead to illogical results and treat those claimants as if they were still within the MIG, that is, as if they had “only” minor injuries. This illogical outcome is the result of focusing solely on the words in sections 14.2 and 25(2) of the SABS without regard to the other provisions dealing with the rehabilitation, treatment and assessment of persons found to have pre-existing conditions which would prevent maximal recovery by subjecting them to the MIG limits.

[27] The overall scheme of the SABS supports the LAT’s finding that claimants with minor injuries and their placement within the framework for treatment of only minor injuries under the MIG are intertwined concepts. This interpretation is consistent with the objectives of the MIG and the scheme of this insurance legislation. Having minor injuries alone functions as a limit on those claimants, both by keeping them within the MIG and by limiting their entitlement to in-home assessments.

[28] The LAT’s decision is consistent with its own jurisprudence, in which several claimants removed from the constraints of the MIG were found to be eligible for in-home assessments, because they were not merely suffering from a minor injury: See 17-006691 v. Unifund Assurance Company, 2018 CanLII 112106 (ON LAT) at para. 53; Polidori v. Motor Vehicle Accident Claims Fund (MVACF), 2021 ONLAT 19009160/AABS at paras. 23-24; 17-002589 v. Wawanesa Mutual Insurance., 2018 CanLII 83505 (ON LAT) at paras. 31-36.

[29] Moreover, the LAT’s interpretation is consistent with the consumer protection objective of insurance legislation: Smith v. Co-operators General Insurance Co. 2002 SCC 30 at para. 11.


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Last modified: 10-02-24
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