In September, 2010 Lenworth Scarlett was a passenger in a vehicle when it was suddenly rear-ended. He sustained a minor injury and the vehicle’s insurer was informed.
The Ontario Minor Injury Guideline put a $3,500 cap on auto insurance claims for a minor injury, which includes a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, and any clinically associated sequelae.
Scarlett argued before the Financial Services Commission of Ontario that his injuries fell outside of the scope of the Ontario Minor Injury Guideline. However the vehicle’s insurer, Belair Insurance Company Inc., disputed this argument.
The arbitrator agreed with Scarlett and said that Scarlett could claim medical and rehabilitation expenses beyond this $3,500 limit.
An appeal and a judicial review ensued, with the Divisional Court upholding the key conclusion: “In the absence of clear legislative direction that would override the existing jurisprudence as to burden of proof, it remains the insurer’s burden to prove any exception to or limitation of coverage on the civil balance of probabilities. In this case, that burden has not been met.”
In sum, Mr. Justice Robbie D. Gordon of the Ontario Division Court said, “Although it is fundamental to insurance law that the burden of proof rests on the insured to establish a right to recover under the terms of the policy, so too is it fundamental that when an insurer relies upon an exclusion in the policy to avoid payment, the onus of proving that the loss falls within the exclusion generally lies upon the insurer.”
Interestingly, Ontario’s Statutory Accident Benefits Schedule (SABS) does not expressly incorporate the entirety of the province’s Minor Injury Guideline (MIG) for auto insurance claims. In other words, there may be other expenses outside of what can be claimed under the Minor Injury Guideline. However, the claimant would have to prove his or her entitlement to the appropriate level of auto accident benefits. The Guideline is only binding if and insofar as the Statutory Accidents Benefits makes specific reference to it.
Currently, the SABS sets as a limit a maximum of $3,500 for an impairment that is predominantly a minor injury, a maximum of $50,000 if the impairment is not a minor injury and is not catastrophic, and a maximum of $1,000,000 for a catastrophic impairment. Speak to an accident benefits lawyer to understand your rights.
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