An Ontario court has ruled that a brain contusion cannot be classified as a "minor injury" under the province's auto insurance benefits regime.
In Marcelo v. The Personal Insurance Company, 2026 ONSC 974, the Ontario Superior Court of Justice, Divisional Court overturned a decision by the Licence Appeal Tribunal that had placed an insured with a CT-confirmed intracranial brain contusion within the Minor Injury Guideline under the Statutory Accident Benefits Schedule (SABS).
Flordeliza Marcelo was injured in a motor vehicle accident on August 29, 2019. A CT scan performed on the date of the accident confirmed she had suffered a left frontal intracranial cerebral brain contusion. She applied for accident benefits to The Personal Insurance Company, which determined that her injury met the criteria for a "minor injury" under s. 3(1) of the SABS. As a result, her medical and rehabilitation benefits were capped at $3,500 under the Minor Injury Guideline (MIG).
Marcelo disputed her placement in the MIG before the LAT. In a preliminary decision dated November 21, 2024, the LAT found that the word "contusion" in the SABS definition of "minor injury" was not limited, and therefore "includes all types of contusions, including a brain contusion." The LAT denied reconsideration on July 9, 2025, reaffirming that brain contusions remain minor injuries unless the resulting impairment rises to a non-minor level.
The definition of "minor injury" under s. 3(1) of the SABS reads: "'minor injury' means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury;"
The Divisional Court found that the LAT committed a legal error by focusing on the degree of impairment rather than the nature of the injury. The court emphasized that s. 3(1) is an injury-based definition, using the term "minor injury" - not "minor impairment."
The court identified several reasons why a brain contusion does not fit within the MIG framework. The only diagnostic tool available under the MIG without insurer approval is an X-ray, which cannot detect brain contusions. The MIG's 12-week functional restoration model is incompatible with brain injuries, where impairment may take some time to manifest. The recommended interventions — home exercise programs, activity prescriptions, and mobilization and manipulation techniques — are appropriate for musculoskeletal injuries but wholly inappropriate for brain contusions. The $3,500 benefit cap cannot cover even a single neuropsychological assessment, which the court noted was the accepted form of assessing what treatment is required for such an injury.
The court also highlighted that under s. 3.1 of the SABS, intracranial contusions are specifically referenced as indicators of catastrophic impairment. The court found it illogical that an injury capable of supporting a "catastrophic" designation could simultaneously be considered "minor."
The appeal was allowed. The court ordered Marcelo removed from the MIG, entitled to benefits that would have been available at the time of her placement, preserving the five-year statutory limitation on coverage. The insurer was ordered to pay Marcelo costs fixed at $8,000.
