Tribunal File Number: 20-002064/ABBS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
Naomi Kellerman-Bernard
Applicant
and
Unica Insurance Inc.
Respondent
PRELIMINARY ISSUE DECISION
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Applicant: Wendy Sokoloff, Counsel
For the Respondent: Jamie R. Pollack, Counsel
HEARD by way of written submissions
BACKGROUND
1On January 26, 2016 the child of Naomi Kellerman-Bernard (“applicant”) was involved in an accident (the “accident”). The applicant sought benefits February 2, 2016 under the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”) including an application for catastrophic impairment (“CAT”), OCF-19 on October 24, 2018.
2The applicant filed an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service on February 10, 2020 for dispute resolution in which she is seeking CAT and other benefits.
3The Tribunal ordered that the preliminary issue below be heard prior to the substantive issues. The substantive issues are scheduled to be heard March 21 to 23, 2022.
PRELIMINARY ISSUE
4The issue before me is:
i. Can an applicant not involved in an accident meet the criteria for CAT impairment as defined by the Schedule?
RESULT
5I find that the applicant does not meet the criteria for CAT as defined by the Schedule. The applicant’s claim for CAT is dismissed. The substantive issues remain scheduled to be heard March 21 to 23, 2022 by videoconference.
FACTS NOT IN DISPUTE
6The applicant’s child was involved in the accident.
7The applicant did not witness the accident.
8The applicant claims accident benefits because of psychological and mental injuries she allegedly suffers as a result of her child’s accident.
POSITIONS OF THE PARTIES
9The respondent does not dispute that the applicant is an insured person under the policy and is eligible to claim accident benefits but submits that the applicant is not entitled to apply for CAT because she was not involved in the accident, thus her injuries were not caused by an accident as defined in the Schedule. Therefore she does not meet the criteria for CAT in the Schedule.
10The respondent submits that this is a novel issue and there is no precedent on point.
11The applicant submits that she is an insured person under the Schedule who sustained psychological and mental injuries caused by the accident for which she is eligible to apply for CAT designation and CAT benefits. The applicant submits that there is no difference to her injuries being “caused by an accident” or “as a result of an accident” and that there is no requirement in the Schedule for an insured person to have been involved directly in an accident to apply for CAT impairment designation.
LAW AND ANALYSIS
Statutory Basis for Catastrophic Impairment
12There is no dispute between the parties that the applicant is an insured person under the Schedule. The submissions of both parties make it clear that the applicant has sought and received some accident benefits. Where the parties differ is whether the applicant can claim CAT designation which would entitle her to claim an increased level of benefits.
13The fact that the parties have agreed that the applicant meets the definition of “insured person” under the Schedule is not determinative of the issue before me. The real issue is whether the applicant can claim CAT designation.
14I find that applicant does not meet the criteria for CAT as defined by the Schedule because her alleged injuries were not “caused by an accident” as required by the Schedule.
15Both parties agree that as the accident took place on January 26, 2016, the version of the Schedule2 for the period August 26, 2015 to March 3, 2016 applies (the “Schedule”)3.
16Section 3(2) of the Schedule defines catastrophic impairment as follows:
“For the purposes of this Regulation, a catastrophic impairment caused by an accident is,” followed by a list of six categories of physical, brain, mental and behavioural impairment.4
17Under s. 3(2) of the Schedule, CAT designation requires a two part test to be met. The threshold test is that the applicant must establish that his or her injuries are “caused by an accident”. If the threshold test is met, the applicant must then establish that his or her injuries fit within at least one of the listed categories of impairment.
18The respondent submits that the phrase “caused by an accident” was purposely used in the Schedule to restrict entitlement to CAT to persons who directly suffer injuries caused by an accident because the legislature has chosen to treat access to enhanced CAT benefits more restrictively. The respondent also submits that the principles of statutory interpretation as outlined by the Courts, including the Supreme Court of Canada5 should be applied here in the interpretation of s. 3(2). I agree.
19In interpreting the meaning of the phrase “caused by an accident”, I apply the modern approach to statutory interpretation which involves a textual, contextual and purposive analysis. As explained by Executive Chair Lamoureux in M.F.Z. v Aviva Insurance Canada6, this approach involves consideration of three factors: the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found.
20The phrase “caused by an accident” is clear and is not ambiguous, particularly when considered in the context in which the language is used. “Accident” is defined in the Schedule as an incident in which the “use or operation of an automobile directly causes an impairment…” In interpreting the term “accident” itself, the law is well settled that if it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the ‘ordinary course of things.”7 The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.8
21Direct causation requires a determination of the “dominant factor that physically caused the applicant’s injuries”.9 At a minimum, some direct physical connection is required between the insured person’s injuries and an automobile for the injuries to have resulted from an “accident”. Otherwise, the insured person’s alleged injuries cannot be said to have been caused by an “accident”. Here, the applicant’s alleged injuries were not directly caused by an automobile as she did not witness her child’s accident.
22This purposive interpretation of the phrase “caused by an accident” is consistent with the fact that the legislature has seen fit to restrict access to the highest level of accident benefits available under the Schedule to those insured persons who suffer a catastrophic level of injury directly caused by an automobile. Here, because the applicant did not witness the accident and was not directly involved in the accident, she is unable to meet the threshold test for CAT designation required by s. 3(2). As a result, the applicant cannot meet the second part of the CAT test.
23I find unpersuasive the applicant’s submissions that there is no difference to her injuries being “caused by an accident” or “as a result of an accident”, wording which she submits is used elsewhere in the Schedule, and that there is no requirement in the Schedule for an insured person to have been involved directly in an accident to apply for CAT impairment designation.
24To the contrary, I am of the view that the legislature used the phrase “caused by an accident” purposely and in order to restrict CAT designation to those most seriously injured directly by the use or operation of an automobile, not their more indirectly affected family members. My interpretation is consistent with the modern approach to statutory interpretation mandated by the Courts and Executive Chair Lamoureux and the cases cited by the applicant.
ORDER
25For the reasons outlined above, I find that the applicant does not meet the criteria for CAT as defined by the Schedule. The applicant’s claim for CAT is dismissed. The substantive issues remain scheduled to be heard March 21 to 23, 2022 by videoconference.
Released: February 3, 2022
____________________
Avril A. Farlam
Vice-Chair
Footnotes
- O.Reg. 34/10
- O.Reg. 34/10.
- The version of the Schedule referred to in this decision is the pre-June 1, 2016 Schedule unless otherwise noted.
- The key aspect of s. 3(2) in my decision is causation; however, for completeness, the six categories in s. 3(2) are: (a) paraplegia or quadriplegia; (b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg; (c) the total loss of vision in both eyes; (d) subject to subsection (4), brain impairment that results in, (i) a score of 9 or less on the Glasgow Coma Scale, as published in…according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or (ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in…according to a test administered more than six months after the accident by a person trained for that purpose; (e) subject to subsections (4), (5) and (6), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or (f) subject to subsections (4), (5) and (6), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.”
- Rizzo v. Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (SCC).
- M.F.Z. v. Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) para 39.
- Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 36; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
- Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
- Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Div. Ct.)