Frankly Scarlett, You’ve Been MIG’ed

November 29, 2013

FSCO Director’s Delegate David Evans has allowed the insurer’s appeal in Arbitrator Wilson’s controversial MIG decision. Evans found that Wilson made a number or errors in reaching his conclusion that the claimant’s medical/rehabilitation benefits claims were not subject to the $3,500 limits for minor injuries.

In Scarlett v. Belair, the claimant was injured in an accident on September 18, 2010. He took the position that he while he did suffer sprains and strains, he also suffered from pre-existing conditions and subsequent psychological disabilities that took him out of the Minor Injury Guideline. After the accident, he was diagnosed with TMJ syndrome, a Pain Disorder, severe depression, and chronic symptoms of PTSD, among other things.

In a preliminary issue hearing, Arbitrator Wilson found that the MIG is informational and non-binding. He further held that the advisory nature of the Guideline was not altered by its incorporation in the SABS. He also found that the insurer had the onus of proving that the claimant was subject to the $3,500 minor injury limits (i.e., prove that the claimant had sustained a minor injury). In coming to his conclusion, the arbitrator also relied upon a number of cases, his own arguments, and his own English/French translations – without providing the parties the opportunity to make submissions.

(For more please see Caroline Meyer’s April 5, 2014 blog called Arbitrator Romances the Minor Injury Guideline with the Language of Love: MIG Seduced, Insurers Jilted)

On appeal, Director’s Delegate Evans disagreed entirely with the arbitrator’s decision, both with his conclusion and how he arrived there. The Director’s Delegate’s decision can be summarised, as follows:

  • The Arbitrator found that the claimant’s chronic pain, depressive symptoms and TMJ disorder were separate and distinct from his soft tissue injuries and were not the sequelae thereof. The Director’s Delegate found that the arbitrator failed to address why this was so.
  • The arbitrator failed to direct his mind to the relevant test of whether the claimant’s impairment was “predominantly” a minor injury.
  • The arbitrator erred in finding that the burden of proof lay on the insurer to show that the claimant was subject to the MIG. The Director’s Delegate found that the burden of proof always rests on the insured of proving that he or she fits within a scope of coverage.
  • The arbitrator erred in finding that “compelling evidence” simply means “credible evidence”, finding that the word “compelling” means more than “credible”. On this issue the Director’s Delegate wrote:

I do not understand why the Arbitrator discussed the “compelling evidence” criterion. It is only relevant if an insured is found to be subject to the MIG: the Arbitrator found that Mr. Scarlett was not subject to the MIG. Oddly, the Arbitrator seems to have recognized that in a footnote to the citation above, where he wrote “The requirement of ‘compelling evidence’ is also inserted into the Schedule at section 18(2) dealing with provision by the health practitioner of evidence relating to a pre-existing condition.” That, of course, is the key point: the requirement comes from the SABS, yet the Arbitrator only discusses the MIG.

  • With respect to the arbitrator’s decision to look at the French meaning of “compelling evidence”, the Director’s Delegate wrote:

It is not obvious to me why “convincing” is less forceful than “compelling.” Second, it seems the syllogism the Arbitrator is using is a kind of word ladder, in that the translation of “compelling” is “convaincant,” but “convaincant” translates as “convincing,” so therefore “compelling” means “convincing.” However, the procedure could equally well be reversed. That is, “convaincant” is translated as “compelling,” but “compelling,” regarding evidence, and according to my HarperCollins 2002 French-English dictionary, translates as “incontestable,” so therefore “convaincant” means “incontestable.” Third, while the Arbitrator finds that “convincing” should be read down to mean merely credible, I note that under the SABS-1994, on the question of whether an insured has withdrawn from the work force, s. 11 (6) provides that “the insurer has the burden of proving on clear and convincing evidence that the insured person had … withdrawn.” The French version reads “il incombe it I’assureur de demontrer, sur la foi de preuves claires et convaincantes, que la personne assuree s’etait retiree … ” According to the Arbitrator’s logic, then, all an insurer had to provide was credible evidence that there was a withdrawal.

  • The arbitrator erred in finding that the MIG was not binding because it was only a Guideline. The Director’s Delegate found that the MIG is binding because it was issued pursuant to section 268.3 of the Insurance Act, the definition of “MIG in the SABS refers to section 268.3, and the MIG is then applied in section 18 of the SABS, thereby incorporating the MIG into the SABS by reference.
  • Finally, the Director’s Delegate found that the arbitrator breached procedural fairness by conducting his own research and relying on cases and statutory provisions that he then raised of his own accord after the hearing, without giving notice to the parties or allowing them to respond.

In light of his findings, the Director’s Delegate allowed the appeal and rescinded the arbitrator’s decision. He remitted the matter to a full hearing before a different arbitrator, on all issues as between the parties.

Much will be written/spoken about this case in the coming months, as the insurance industry and claimant lawyers continue to dispute about what claims properly belong in the MIG.

A copy of the decision should be available on the FSCO Web site soon. Congratulations to Philippa Samworth for pulling off a great appeal.


This blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of this blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.