The appeal of the Arbitrator’s order dated September 14, 2017 is allowed in full. The order is rescinded in its entirety, and the matter is returned to arbitration for determination of whether Mr. Abyan is entitled to payment of his claim for a psychological assessment.
However, the Arbitrator made these findings in a factual vacuum. Whether Mr. Abyan suffers chronic pain, is subject to the Minor Injury Guideline, and had an undocumented pre-existing condition that would prevent him from achieving maximal recovery within the Guideline’s limits should have been decided first.
Therefore, the matter is returned to arbitration for a determination of those questions.
Mr. Abyan sought accident benefits for an accident that occurred on June 19, 2015. The sole substantive issue before the Arbitrator was funding for a psychological assessment for $1,995.32 proposed by Dr. Jon Mills by way of an OCF-18 dated October 15, 2015.
Prior to the arbitration hearing regarding this benefit, Mr. Abyan brought a preliminary issue motion alleging that two aspects of the SABS were unconstitutional under his rights to equality (s. 15) and to life, liberty and security (s. 7) under the Charter. He argued that it was unconstitutional for chronic pain syndrome to fall within the definition of “minor injury” in s. 3 of the SABS as “clinically associated sequelae” and that it was unconstitutional to require him to show that pre-existing conditions were documented by a health practitioner before the accident, as required in the amended s. 18(2) of the SABS.
The correct two-stage test to be applied to determine whether there has been a breach of Charter equality was set out in Withler v. Canada (Attorney General), 2011 SCC 12 (CanLII) at para. 30: does the law create a distinction based on an enumerated or analogous ground, and does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
The Arbitrator cited the discussion in Taypotat about the relative focus of each of those stages, followed by lengthy citations from Martin. The Arbitrator noted that in Martin, the Supreme Court held that Nova Scotia’s statutory workers’ compensation scheme violated s. 15 of the Charter in providing only short-term benefits to sufferers from work-related chronic pain. In his analysis portion regarding s. 15, the Arbitrator relied on Martin as evidence of inaccurate negative assumptions towards chronic pain sufferers widely held by employers, compensation officials, and the medical profession itself, some of whom identified that the correction of negative assumptions and attitudes of this kind would be a significant step in improving the treatment of chronic pain.
He then cited the definition of “minor injury” in s. 3 of the SABS and in the relevant Minor Injury Guideline: “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.” He noted the definition of the MIG as well. He cited sections 15 and 16 of the SABS that establish entitlements to medical and rehabilitation benefits for those injured in automobile accidents in Ontario, but noted those entitlements are limited by the caps for cases of “minor injuries” in section 18.
Subsection 18(2) sets out an exception if an insured’s 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 $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.” At issue was the italicized phrase added in 2014. In February 2014, the Superintendent replaced the MIG of 2010 with another MIG—Superintendent’s Guideline No. 01/14, which added the requirement for pre-accident documentation of a pre-existing injury, and that change was also reflected in the amended s. 18(2) of the SABS.
With respect to chronic pain, the Arbitrator accepted Dr. Getahun’s testimony that “clinically associated sequelae” simply means “anything that is a following sequel of” in the natural course of recovery from treatment of an injury. Therefore, he concluded that the definition captured chronic pain if it was as a result of a minor injury. I note that, on appeal, Mr. Abyan agrees that his injuries fit within the minor injury definition. Further, most recently, Delegate Murray in Aviva Canada Inc. and Sleep, (FSCO P17-00034, July 10, 2018), agreed with my analysis in Scarlett and Belair Insurance Company Inc., (FSCO P13-00014, September 10, 2013) that in deciding whether a claimant’s injuries fall within the MIG, an Arbitrator must address why impairments, such as chronic pain and psychological impairments, are not “clinically associated sequelae” to a claimant’s minor injuries. She found it was an error to presume that a finding of chronic pain automatically removes a claimant from the MIG.
I am satisfied that the effect of the MIG arbitrarily discriminates against MVA victims who suffer chronic pain as a clinically associated sequelae to the MVA, in ways that those who do not suffer from chronic pain resulting from an MVA do not.
The Applicant argued that the phrase “that was documented by a health practitioner before the accident” has discriminatory effect, as it means people without a doctor, without access to OHIP, who had asymptomatic pre-existing conditions, or who were involved in a MVA shortly before that provision came into effect, do not have access to the usual $65,000 medical/rehabilitation/attendant care cap, and are subject instead to the $3,500 MIG cap for medical and rehabilitation benefits simply because they did not have their conditions documented before the MVA took place. I agree that this wording clearly creates discriminatory effects, and there is no clear purpose elaborated for it.
The Arbitrator then went on to analyze whether these limitations on insureds’ rights were demonstrably justifiable in a free and democratic society, in accordance with section 1 of the Charter. He found they were not.
The Arbitrator’s remedies were to interpret “clinically associated sequelae” as excluding those who suffer chronic pain as among the sequelae, and to sever the wording “that was documented by a health practitioner before the accident” from the provision.
The Arbitrator erred in reaching conclusions about the constitutionality of these provisions in a factual vacuum: Phillips v. Nova Scotia (Commissioner, Public Inquiries Act),  2 S.C.R. 97. With respect to s. 3, even if the Arbitrator initially perceived that a constitutional issue could in some circumstances become relevant to his disposition of the claim, he should have first decided whether Mr. Abyan in fact suffered from chronic pain. With respect to s. 18(2), the Arbitrator should have first determined whether or not the $3500 limit prescribed by s. 18(1) of the SABS would otherwise have applied and, if so, made a finding of fact as to whether Mr. Abyan had an undocumented pre-existing condition that would prevent him from achieving maximal recovery if he was subject to the $3500 limit.
For those reasons alone, the decision should be set aside, and Mr. Abyan’s claim should be remitted back to Arbitration to be determined on its merits.
As can be seen above, the Arbitrator can hardly be said to have done any analysis. For instance, while he cited the two-part Withler test, he did not apply it. Thus, the Arbitrator failed to apply the second step of the s. 15 test: Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
The Arbitrator also did not consider that the SABS does not draw a simple distinction between those who have and those who do not have chronic pain. For instance, for those who suffer a broken leg and thus are not subject to the MIG, there is no distinction drawn between those who do and do not suffer chronic pain as a result. Others who have what might be colloquially thought of as major injuries may be subject to the minor injury definition as well. For instance, while the Arbitrator noted Dr. Getahun’s evidence that a subluxation of the hip could be devastating, he failed to consider that this shows the general nature of the “minor injury” definition, so it does not act solely to affect those with chronic pain. This suggests that the distinction relates to the origin of the injury, not the nature of the sequelae.
As to the pre-accident documentation requirement, the Arbitrator relied on several grounds – such as lacking access to OHIP or drawing a distinction based on the date of the accident – that are not protected or analogous. The Arbitrator had no evidence, so he did not consider that some symptomatic conditions go undocumented due to the insureds not seeking medical care: a lack of documentation thus does not mean the provision only affects those who were asymptomatic. Rather, there must be objective evidence that the legislation draws a s. 15 distinction in its effects, as opposed to on its face: Taypotat. Finally, not all distinctions made on a protected ground are discriminatory: one needs a finding that the discrimination perpetuates arbitrary disadvantage, prejudice or stereotyping. Documenting a pre-existing condition is not a personal characteristic and is easily changeable, I would think, and the distinction is temporal and not based on the nature of the sequelae.
Accordingly, the appeal is allowed, the Arbitrator’s decision is rescinded in its entirety, and the issue of Mr. Abyan’s entitlement to a psychological assessment is remitted to arbitration.