MIG Constitutional Challenge Rejected on FSCO Appeal

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Article Summary

In Abyan and Sovereign (FSCO Appeal P17-00068, October 5, 2018), Delegate Evans quashed the Arbitrator's decision and remitted Mr. Abyan's non-MIG claims back to arbitration (likely with a different FSCO Arbitrator as ADR Chambers' contract with FSCO has ended and the original hearing arbitrator is no longer with ADR Chambers).

The constitutional assessment of the MIG was completed in a "factual vacuum". Before concluding that it was discriminatory to limit those suffering from chronic pain to the MIG limit of $3,500, the Arbitrator should have determined whether the claimant suffered from chronic pain and whether the chronic pain was related sequelae to predominantly minor soft tissue injuries.

On appeal, the claimant:

"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 [successfully argued by this author]), 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."

Delegate Evans went to make several observations applicable to the new hearing and future constitutional MIG challenges:

1. The issue is whether the challenged provision creates a disadvantage by perpetuating prejudice or stereotyping;

2. The SABS does not draw a simple distinction between those who have and those who do not have chronic pain;

3. The application of the MIG appears to relate to the origin of the injury, not the nature of the sequelae;

4. Not all distinctions made on a protected ground are discriminatory: one needs a finding that the discrimination perpetuates arbitratory disadvantage, prejudice or stereotyping; and

5. As was stated in Miceli-Riggins v. Canada (Attorney General), 2013 FCA 158 (CanLII), "distinctions arising under social benefits legislation will not lightly be found to be discriminatory. The Supreme Court has confirmed this over and over again... Accordingly, one cannot simply conclude there is a section 15 violation from the fact that social benefits legislation leaves a group, even a vulnerable group, outside the benefits scheme."

The writing, as they say, is on the wall. It remains to be seen whether the LAT will take FSCO's lead and similarly reject constitutational challenges to the MIG on the basis that it discriminates against those who suffer from chronic pain or who do not have a documented pre-existing impairment.

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