McKay v. Dominion of Canada General Insurance Company, 2022 CanLII 114464

Citation: McKay v. Travelers Insurance, 2022 ONLAT 20-008456/AABS - PI

Licence Appeal Tribunal File Number: 20-008456/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Patricia McKay

Applicant

and

Dominion of Canada General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Odette Rwigamba, Counsel

For the Respondent:

Jane Cvijan, Counsel

HEARD:

By way of written submissions

BACKGROUND

1Patricia McKay, ("the applicant"), was involved in an automobile accident on March 22, 2013, and sought benefits from The Dominion of Canada General Insurance Company, ("the Respondent"), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule"). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") for resolution of this dispute.

2A case conference was held by Adjudicator Watt who ordered that the preliminary issue below be heard as the sole issue in a written hearing, with no other issues considered.

PRELIMINARY ISSUE

3The sole preliminary issue to be decided at this hearing is:

a. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline ("MIG")?

Result

4I find that the Tribunal does not have the jurisdiction to deal with the issue of the Minor Injury Guideline as a standalone preliminary issue.

ANALYSIS

5First, the Tribunal does not have jurisdiction to deal with the issue of the MIG as a standalone issue unless a medical or rehabilitation benefit is tied to it pursuant to sections 15 or 16 of the Schedule. This is supported by statutory interpretation, and the plain reading, context, and purpose of the Insurance Act.¹ Section 280 (1) of the Insurance Act states that the Tribunal has jurisdiction to resolve "disputes in respect of an insured person's entitlement of statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured is entitled."²

6The MIG is not a statutory accident benefit; it is a guide that defines a minor injury and the treatment framework for medical providers. It establishes a fee schedule and recommendations for how these types of minor injuries should be treated. The Tribunal only has jurisdiction to hear disputes relating to entitlement or amount of accident benefits. These benefits are outlined in various sections of the Schedule. An individual whose injuries have been classified as minor can apply for benefits up to the MIG limit of $3,500.00 pursuant to s. 18 of the Schedule. The MIG does not entitle a person to a benefit or grant them an amount of a benefit. When a person's injuries are categorized as minor, non-catastrophic, or catastrophic, it allows the person to apply for benefits within that monetary tier, but does not entitle them to that monetary limit. Section 18(1) of the Schedule allows the applicant to apply for medical, rehabilitation, and attendant care benefits up to the limit prescribed by the MIG.

7Second, being classified under the MIG is not a refusal to pay the amount claimed. Being in the MIG does not entitle an insured person to any amount of benefits. The issue of which tier an insured person's injuries belongs can be argued at any time

8Lastly, there is no obligation on the adjudicator to decide the issue of the MIG in absence of a benefit that relies upon its determination.

9If there are treatment and assessment plans to bring before the Tribunal, the applicant can submit a new application which lists them as issues in dispute.

CONCLUSION AND ORDER

10In conclusion, determining the MIG does not entitle an insured person to benefits or an amount of benefits to which they may be entitled. When a case is brought before this Tribunal where the applicability of the MIG is in dispute, it is a substantive issue to be heard in conjunction with a denied medical benefit. The applicability of the MIG will be an issue that the hearing adjudicator must assess in conjunction with the reasonableness and necessity of the proposed treatment and assessment plans.

11Consequently, I order that the application is dismissed due to lack of jurisdiction and that the Tribunal's file shall be closed.

Footnotes

1. 1R.S.O. 1990, c.I.8.
2. 2Ibid.