Court File and Parties

CITATION: Aviva Canada v. Pastore and Financial Services, 2011 ONSC 422

DIVISIONAL COURT FILE NO.: 455/10

DATE: 2011/01/19

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Aviva Canada Inc.

AND:

Anna Pastore and Financial Services Commission of Canada

BEFORE: Herman J.

COUNSEL: James Vigmond, Brian Cameron for the Ontario Trial Lawyers Association

Kevin Griffiths for Aviva

Robert Conway for Financial Services Commission of Ontario

HEARD: January 18, 2011

ENDORSEMENT

[1] The Ontario Trial Lawyers Association (OTLA) seeks leave to intervene as a friend of the court in the application for judicial review. Aviva opposes OTLA’s motion; Anna Pastore consents; and the Financial Services Commission of Ontario takes no position.

[2] The case involves Ms. Pastore’s claim that she suffered a catastrophic impairment as a result of a motor vehicle accident. The determination of catastrophic impairment is important because it results in an entitlement to enhanced benefits.

[3] The Arbitrator determined that Ms. Pastore suffered from a catastrophic impairment based on her Class IV Marked impairment with respect to activities of daily living. Aviva appealed the decision. The decision was upheld by the Director’s delegate.

[4] Aviva’s application for judicial review is scheduled to be heard by the Divisional Court on February 23, 2011. Aviva argues that a single Class IV Marked impairment is insufficient to result in a determination of catastrophic impairment.

[5] OTLA is an organization whose membership includes approximately 1,100 Ontario lawyers who practise personal injury litigation and insurance litigation on behalf of plaintiffs. Its primary focus concerns advocacy in personal injury matters on behalf of injured people. Its members represent individuals in tort claims, disability claims, insurance matters and automobile accident benefit claims.

[6] OTLA submits that it could provide a useful contribution to this case in that it has expertise and is able to bring a broader perspective to the interpretation of the legislation. OTLA has been granted leave in several cases.

[7] Aviva relies on the test articulated in Peixeiro v. Haberman (1994), 1994 7322 (ON SC), 20 O.R. (3d) 666 at para. 8. In that case, MacPherson J. stated that the decision of whether to grant leave to intervene should be based on a consideration of: the nature of the case; the issues which arise; and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the parties.

[8] In particular, Aviva submits that it would be inappropriate to grant intervenor status to OTLA because: OTLA has not presented evidence as to the number of individuals who would be in a position similar to that of Ms. Pastore; it has not addressed the impact of a decision on this issue on members of the OTLA; OTLA’s interest is indirect only, in that any decision would affect clients of its members; and the case involves a straightforward matter of statutory interpretation which a competent lawyer could handle.

[9] Aviva does not claim that there would be any prejudice to the parties if OTLA were granted intervenor status.

[10] OTLA referred to the decision of Winkler C.J.O. in Liu v. 1226071 Ontario Limited, [2009] O.J. No. 6008 (C.A.). OTLA was granted intervenor status on a similar issue, that is, the interpretation of the provisions dealing with catastrophic impairment and the entitlement to enhanced benefits.

[11] In my opinion, OTLA should be granted leave to intervene as a friend of the court. A decision on the interpretation of catastrophic impairment has the potential to have an impact on many individuals. OTLA has expertise in the area. It could assist the court by bringing a broader perspective to the interpretation of the legislative provisions and the legislative scheme. There is no prejudice to any of the parties.

[12] The participation of OTLA is subject to the following conditions:

(i) OTLA will take the record as it exists and will not seek to augment the record;

(ii) OTLA may file a factum which is not to exceed 10 pages in length and, in the discretion of the court, may have up to ten minutes for oral argument;

(iii) OTLA’s factum will be served and filed no later than noon, February 9, 2011;

(iv) Aviva may file a factum responding to the OTLA’s factum;

(v) OTLA will not repeat or simply embellish the arguments made by the parties;

(vi) The argument should be confined to an interpretation of the relevant legislative provisions and how they relate to the operation of the legislative scheme; and

(vii) OTLA will neither seek costs nor will costs be awarded against it.

[13] OTLA does not seek costs of this motion. No costs are ordered.

Herman J.

Date: January 19, 2011