MIG Update – May 10, 2021

MIG Overturned – New Chronic Pain Definition?

In this edition of MIG Monday, we examine a MIG escape that was overturned on reconsideration. The Tribunal was found to have made errors of law or fact in determining that the Applicant suffered from chronic pain and psychological impairment. Can the Tribunal consider a chronic pain definition not put forward by the parties?

Factor: Error of Fact or Law

In the original decision of R.N. v Aviva (18-009117), the Tribunal held that R.N.’s injuries fell outside of the MIG on the basis of chronic pain and accompanying psychological impairment. The Tribunal adopted a definition of chronic pain by the “Canadian Institute of Pain and Disability” as pain that “persists after three months”.

The Respondent sought reconsideration, submitting that the Tribunal considered evidence that was not put before it by the parties, including the definition of chronic pain attributed to the “Canadian Institute of Pain and Disability”, an entity that does not exist or is obscure.

The Tribunal’s MIG finding was overturned upon reconsideration by a different adjudicator, who held the Tribunal erred in law and fact when determining that R.N. suffered from chronic pain and psychological impairment.

Chronic Pain

  • “It is not for the adjudicator to consider and rely on material other than that put forward by the parties. It is not for the adjudicator to introduce a new issue or put forward a new source of information about chronic pain not put forward by the parties.”
  • It is R.N.’s burden to establish his case. Introducing a new source of information deprived the parties, the Respondent in particular, of the right to know the case to be met and to make submissions.
  • Removal from the MIG based on chronic pain was not articulated by either party and R.N. put forward no evidence of any chronic pain disorder or chronic pain syndrome

Psychological Injuries

  • The Tribunal erred by relying on two conflicting medical opinions to support a finding of psychological impairment when it referred to the s.25 report as “refreshingly modest”
  • The error was compounded when the Tribunal found that R.N. suffered psychological impairment when this finding is in fact contrary to the evidence of the family doctor and the IE assessor. Neither diagnosed psychological impairment.
  • The burden of proof for R.N. in order to establish psychological impairment sufficient to remove him from the MIG is based upon the standard of a balance of probabilities, notwithstanding “refreshingly modest” contrary evidence.

Join Our Community of Subscribers! 

inHEALTH’s LAT Compendium Service gets you the most up to date decisions, case summaries and information from the Licence Appeal Tribunal (LAT). Our industry-leading case summaries and organized search filters put unbiased, factually-based information at your fingertips to guide decision making and drive effective & efficient evaluation – Subscribe Now

inHEALTH Keeps you LAT inFORMED With Access To:

1. LAT Compendium Database – a relational database of LAT and Divisional Court Decisions equipped with multiple search options, Smart Filters, and concise case summaries

2. Notifications: – weekly LAT inFORMER delivered to your inbox Wednesdays; Newly Added Decisions on Fridays and Breaking News as and when it happens

 3. Research Support: – inHEALTH’s Live Chat Experts for guided searches and technical inquiries.

Sign up for a 30 day free trial below to experience the service and see how it can help guide your decision making.

Contact Sales


Contact Support

Contact Us


11 Allstate Parkway Suite 203
Markham, Ontario
L3R 9T8

Follow Us On