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In this 2015 appeal[1] by Mr. Scarlett to the Divisional Court, Director Delegate Evans’ decision was partially upheld.

First, the Divisional Court clearly found that the injured person has the burden of proving that his or her injuries fall outside of the Minor Injuries Guideline (“MIG”). Specifically, the Court held that the higher benefit limit is not the default for medical/rehabilitation coverage. If it is determined that an injured person’s injuries fall within the MIG, he or she is not entitled to the elevated level of benefits (including attendant care benefits, and medical/rehabilitation benefits over and above $3,500).

Second, the Divisional Court confirmed that while the MIG is referenced in the Statutory Accident Benefits Schedule (“SABS”), it does not have the binding force of legislation, or the SABS. In order for the MIG to be “as binding as” legislation, it must be both:

  1. Expressly referred to in the statute/regulation, and
  2. Required for the proper interpretation of that portion of the statute/regulation.

[1] 2015 ONSC 3635.

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