Citation: Ciasullo v. Unica Insurance Inc., 2024 ONLAT 23-000330/AABS-PI
Licence Appeal Tribunal File Number: 23-000330/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Michele Michael Ciasullo
Applicant
and
Unica Insurance Inc.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Jonathan Heeney, Counsel
For the Respondent:
J. Patrick Brown, Counsel Nick Todorovic, Counsel Aidan Vining, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Michele Michael Ciasullo (“the applicant”) submitted an application for accident benefits to Unica Insurance Inc. (“the respondent”) as a result of a motor vehicle accident which occurred on June 18, 2020 involving his wife and children, who tragically passed away. The applicant was not involved in the accident, nor did he witness the accident.
2He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue to be decided is whether the applicant is barred from applying for catastrophic impairment because he was not involved in an accident?
RESULT
4The applicant is not barred from applying for catastrophic impairment.
ANALYSIS
5The applicant claimed statutory accident benefits due to a psychological injury he suffered as a result of the subject accident. The applicant subsequently filed an application for catastrophic impairment.
6The parties agree that the applicant is an “insured person” under the Schedule and is eligible to claim certain benefits. However, the parties disagree about whether the applicant is entitled to apply for a catastrophic impairment designation. This appeal involves the interplay between three provisions of the Schedule – section 3(1) which defines who is an “insured person”; section 45(1) which provides that an “insured person” is entitled to apply for catastrophic impairment designation; and section 3.1(1) which sets out the criteria necessary to qualify for catastrophic impairment designation.
Section 3(1)
7The relevant portion of section 3(1) is as follows:
“insured person” means, in respect of a particular motor vehicle liability policy,
(a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant of the named insured or of his or her spouse,
(i) if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or
(ii) if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant,
8This section establishes two classes of people who are named in the policy who qualify as “insured persons” – (1) those named insureds who are actually involved in the accident, and (2) named insureds who are not actually involved in the accident, but who suffer a psychological injury as a result of their family member’s involvement in the accident. The applicant falls into that second class of insured persons.
Section 45(1)
9This section proves an insured person the right to seek a catastrophic impairment designation. It states:
An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
Section 3.1(1)
10Section 3.1(1) of the Schedule states:
For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in any of the following;
11It then goes on to list the functional and medical criteria for a catastrophic designation applicable to an insured person who was injured in an accident that occurred on or after June 1, 2016.
12Prior to June 1, 2016 section 3(2), as it was then, stated:
For the purposes of this regulation, a catastrophic impairment caused by an accident is……
Analysis
13The respondent takes the position that the applicant is not entitled to apply for catastrophic impairment because he was not involved in the accident, and thus he did not sustain his injuries in an accident. The respondent submits that the change in the language of the section indicates clear legislative intent to restrict entitlement to apply for catastrophic injuries to those insured persons who were actually involved “in an accident”, noting that the phrase “in an accident” does not appear elsewhere in the Schedule aside from the definition of an insured in s. 3(1). Throughout the Schedule, when addressing entitlement to other benefits, the Schedule uses the broader phrase “as a result of an accident”.
14The applicant submits that he is an insured person under the Schedule who sustained psychological impairments. Section 45(1) of the Schedule states that all insured persons who sustain an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
15Section 3.1(1) was added to the Schedule by Ontario Regulation 251/15 and is applicable to accidents that occurred on or after June 1, 2016. The applicant submits that the phrase “in an accident that occurred on or after June 1, 2016” was simply to differentiate the criteria applicable to accidents that occurred before June 1, 2016, and the word “in” does not require that the applicant be physically involved in a collision in order to apply for catastrophic impairment. The applicant submits that the addition of the date in the section is only used to identify a timeframe by when the functional and medical criteria for catastrophic was changed, but did not create a restriction to “insured persons” when read in the entire context. The applicant submits that if there is any disconnect between section 3.1 and section 45(1) it should be read in favour of the insured.
16For the reasons that follow, I find that the applicant, who the parties agree is an insured person pursuant to s. 3(1), is entitled to apply for a catastrophic impairment designation despite not personally having been involved in the accident.
17In Skunk v. Ketash, 2018 ONCA 450, the Court of Appeal states at para 8: The principles of statutory interpretation require that the court first look to the plain meaning of the statute. If the words have a plain meaning and give rise to no ambiguity, then the court should give effect to those words.
18The Supreme Court reiterated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”) that statutory interpretation requires reading the language chosen by the legislature in its entire relevant context.
19While the Divisional Court in Kellerman-Bernard v. Unica 2023 ONSC 4423 (“Kellerman”), considered the statutory interpretation of the pre-June 2016 version of the Schedule and the definition as it was in section 3(2), I find the analysis instructive. The subject appeal also involves the interplay between three provisions of the Schedule and whether the applicant was entitled to apply for a catastrophic impairment designation. The Court in Kellerman found that the Tribunal failed to consider the phrase “caused by an accident” in section 3(2) in the full context as required by Vavilov, and failed to consider the express language in section 45(1). The Court held than the Tribunal’s approach defeated rather than promoted the accepted purpose of the Schedule. Accordingly, the Divisional Court held that the applicant was eligible to make a claim for catastrophic impairment designation despite not being directly involved in the accident.
20When reading the language of s. 3.1(1), in context with the entire Schedule, including the express language in s. 45(1) that “insured persons” are entitled to apply for catastrophic impairment designation, I find that the applicant is not barred from applying for catastrophic impairment. The plain meaning of section 45(1) of the Schedule contains no language that would restrict a person for applying for catastrophic impairment designation. To the extent that there is an inconsistency between the language in 3.1(1) and s. 45(1), it should be read in favour of the insured. Reading the words of the Schedule in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature supports this conclusion.
21I find that the language of s. 31(1) in context of the entire Schedule, does not support than the applicant cannot apply for catastrophic impairment designation, but rather, identifies the date by which the accident must occur on or after for the new functional and medical criteria to be used in assessing whether the impairment at issue is considered catastrophic.
22It is well-established that the Schedule is remedial in nature and its provisions are to be interpreted broadly in favour of the insured. This is consistent with the Supreme Court in Smith v. Co-Operators General Insurance Co., 2002 SCC 30 that the Schedule is remedial and consumer protection legislation and ought to be read, interpreted, and applied in such a way.
23Further, in Tomec v. Economical, 2019 ONCA 882, the Court of Appeal confirmed that the “legislature’s definition of ‘catastrophic impairment’ is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with the most health needs have access to expanded medical and rehabilitation benefits. That definition is meant to be remedial and inclusive, not restrictive” and that the goal of the Schedule “is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial”.
24For these reasons, I find than the applicant is eligible to make a claim for catastrophic impairment designation.
ORDER
25The applicant is not barred from proceeding with his application for catastrophic impairment.
Released: March 22, 2024
___________________________
Kate Grieves
Adjudicator