Principle, not profit: inside Marcelo v. Personal

Yoni Silberman, partner at Bogoroch & Associates LLP, knew that appealing a recent case to the Ontario Divisional Court carried meaning and impact well beyond the financial considerations involved. At its core, this was a matter of accountability and legal principle.

“I was deeply determined to fight for this woman,” Silberman explains. “Marcelo v. Personal is just one example of the passion projects we work on here that exemplifies one of the firm’s core values: giving a voice to injured people who would not be able to fight their fight alone.”

A ‘minor’ injury that was anything but

Silberman’s client was injured in a car accident and suffered numerous injuries, including a brain injury. A CT scan confirmed she had a left frontal intracranial cerebral contusion. Despite the SABS clearly stating that an intracranial brain contusion can qualify someone for catastrophic impairment, the insurance company determined early on that she was within the minor injury guideline (MIG).

While initially the benefits were enough to address her physical impairments, eventually she required more care because of the issues arising from her head injury.

“The insurance company remained entrenched in its position that her injuries should be classified as minor and refused to relent,” recalls Silberman, adding that the client was seeking removal from the MIG so she could undergo a neuropsychological assessment to properly evaluate and address the more nuanced cognitive and psychological issues that she was experiencing.

After numerous phone calls and letters of advocacy proved unsuccessful, Silberman started a LAT application. At the preliminary issue hearing, it was decided — wrongly, she stresses — that the definition of minor injury included a contusion, and therefore a brain contusion by extension.

The firm took issue with that, arguing that MIG definitions for contusion, abrasion, and laceration cannot be applied as a blanket classification. A contusion to the knee is medically and clinically worlds apart from a contusion to the brain, for example; a laceration to the thigh bears no resemblance to one involving an eye or internal organ.

To read these terms so narrowly as to sweep all such injuries into the minor injury category defies medical and rehabilitative reality, Silberman explains. Most critically, an intracranial cerebral contusion is expressly recognized under the SABS as capable of grounding a catastrophic designation — making it logically indefensible to simultaneously classify it as minor.

The firm sought a reconsideration, it went back to the same adjudicator at the LAT and, not surprisingly, they upheld their prior determination. This decision came in July of 2025, six years after the accident.

Even though the client’s accident benefits were exhausted, the firm decided to appeal the decision to the Ontario Divisional Court. According to Silberman, the firm encounters this kind of conduct all too often: insurers taking hard-line positions and refusing to reconsider them, forcing injured individuals to challenge minor injury designation despite strong and compelling medical evidence — all while up against the five-year policy clock for non-catastrophic injury claims.

“It did not sit right with me that a single decision-maker at an insurance company believed they could rewrite or rework the rules,” Silberman says. “When a position is wrong, it’s wrong. And when there is a legitimate reason to fight it, you have to.”

Inside Marcelo v. Personal

Bogoroch & Associates was ultimately successful in Marcelo, with the Divisional Court focusing on the interpretive issue specifically. The SABS is repeatedly reinforced as a remedial consumer protective legislation designed to reduce economic hardship and dislocation suffered by accident victims. In the court's analysis in this case, they held that the tribunal committed an error of law because s. 3.1 details a minor injury, not a minor impairment.

That finding is significant, Silberman notes, because an insurance company can say they objectively acknowledge someone suffered an injury — in this case, an intracranial brain contusion — but argue it’s not impairing the person, and therefore they don’t need to be moved out of the MIG.

“Following the court’s analysis, it is not the role of the insurer to categorize an injury based on its own view of the claimant’s level of impairment,” she explains. “Rather, where an individual has sustained an injury captured by the definition, that injury itself removes the claim from the minor injury category, not the perceived degree of impairment.”

Another element that persuaded the court was that the MIG is structurally built for musculoskeletal injuries. Its $3,500 cap, 12-week restoration model, limited diagnostics, and exercise-based interventions “are incompatible with brain trauma,” Silberman says.

A brain contusion cannot be diagnosed by X-ray, for example, let alone treated through manual therapy. Also, the court found it illogical that an injury capable of grounding a catastrophic designation could simultaneously be classified as minor. That structural incompatibility reinforced that the MIG was never intended to capture the injury Silberman’s client suffered.

Instead of remitting the matter back to the LAT for a new hearing or removing their client from the MIG and allowing a hearing to decide the issues in dispute, the court set aside previous decisions. This reset the limitation on her policy to the point in time that the firm sought the reclassification, thereby exposing the insurer to a further five-year statutory limitation.

The decision was impactful because it was not a typical remedy. It avoided a common outcome in these battles, where the insurer defers and delays determination — leaving less time for the injured person to consume policy benefits. In this case, the court made the firm’s client as whole as possible by restoring her back in time too.

“In many ways, we were back to square one, but in the best possible sense,” Silberman says. “Our client could now receive the treatment and benefits she should have had access to from the outset, had the insurer not taken this position.”

She adds that she hopes this decision serves as a clear reminder that insurers cannot improperly restrict an individual’s lawful access to treatment and benefits that they contracted and paid for.

“If there is any doubt as to whether a laceration, contusion, or abrasion falls within the minor injury category, then it should at least be properly assessed,” Silberman says. “In this case, the insurer did not even refer our client for an assessment to determine whether a neuropsychological evaluation was warranted. Instead, the insurer’s decision maker made the determination to keep our client within the MIG, a position that the court ultimately described as illogical, and one we viewed as both unreasonable and irresponsible.”

Principle over profit

As plaintiffs' counsel, Silberman believes there is a responsibility to challenge decisions that are plainly unreasonable. In this case, one that could have been left unchallenged, “we made a choice.”

“Our firm decided we weren’t going to let those LAT decisions stand,” she says.

Bogoroch & Associates advanced the case because the issues at stake demanded judicial scrutiny. They did so because, put simply, someone had to. And that willingness is precisely what access to justice looks like in practice.

It’s a philosophy that’s always been central to what Bogoroch & Associates does — and to what Silberman believes sets the firm apart.

“We stand up for what is right,” she adds. “Our firm is steadfast in its unrelenting pursuit of justice.”

This article was produced in partnership with Bogoroch & Associates LLP