Divisional Court Finds FSCO Ruling on “Catastrophic Injury” Not “Patently Unreasonable”

In Liberty Mutual Insurance Company v. Young, the insurer was seeking judicial review of a FSCO decision in which an arbitrator and a Director’s Delegate had found that the claimant was entitled to enhanced accident benefits because of having suffered a catastrophic impairment as defined in s. 2(1.1)(e)(i) of the SABS. There had evidently been four Glasgow Coma Scale tests administered within one hour in which the claimant’s score had fallen below 9 out of 15. In order to qualify for enhanced benefits, the claimant had had to satisfy the FSCO arbitrator, that he had a score of 9 or less on the Glasgow Coma Scale “according to a test administered within a reasonable period of time after the accident by a person trained for that purpose”. The issue was whether one hour was “a reasonable time after the accident”. The FSCO arbitrator and Director’s Delegate had held that it was.

On this application for judicial review, the insurer argued that the FSCO tribunals had acted unreasonably in not accepting expert evidence as to what was a “reasonable period of time”. It also argued that FSCO’s own arbitral decisions on the issue were in conflict.

The Divisional Court did not get into a consideration of the merits of the application. It ruled that FSCO is a specialized tribunal, protected by a full privative clause and that courts cannot interfere with an arbitrator’s decision unless that decision is shown to be “patently unreasonable”.

The Court ruled that Liberty Mutual had not met that test in this case. The decisions below were not patently unreasonable nor even unreasonable. The judges (Associate Chief Justice Cunningham and Justices Jennings and Howden) and went on to say: “If the use of the Glasgow Coma Scale in s. 2(1.1)(e)(i) is problematic as the applicant’s witness suggests, the proper recourse is to the Legislature and the Lieutenant-Governor-in-Council with fully-documented concerns.”

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