Aerts et al. v. Olson et al. [Indexed as: Aerts v. Olson]
42 O.R. (3d) 741
[1999] O.J. No. 367
Court File No. 98-DV-209
Ontario Court (General Division),
Divisional Court
O'Leary, Southey and Cusinato JJ.
February 10, 1999
Insurance -- Automobile insurance -- No-fault provisions -- Threshold requirements -- Parents and brother of two-year-old who was killed instantly in front of them in motor vehicle accident bringing action for damages for nervous shock -- Claim for nervous shock barred by s. 266(1) of Insurance Act -- "Bodily injury" includes psychological as well as physical injury -- Exception to immunity "where the injured person has died" inapplicable as plaintiffs not "the injured person" who died -- Insurance Act, R.S.O. 1990, c. I.8, s. 266(1).
The plaintiffs were the parents and brother of a two-year-old boy who was killed instantly in front of them when he was run over by a tractor-trailer. They brought an action for, among other relief, damages for nervous shock. The defendants appealed a ruling that the claim for nervous shock was not barred by s. 266(1) of the Insurance Act.
Held, the appeal should be allowed.
Per O'Leary J.: The claims for nervous shock were barred by s. 266(1) of the Insurance Act. The words "bodily injury" in s. 266(1) include psychological as well as physical injury. While s. 266(1) creates an exemption from immunity "where the injured person has died", it must be "the injured person" who has died before the exemption applies. Here, the injured persons who were attempting to sue for their nervous shock injuries had not died. The claims by the plaintiffs for their nervous shock injuries were not derivative claims based on the death of the child but were separate, independent actions based on the personal injuries each of them suffered.
Per Cusinato J. (concurring): Although nervous shock is a psychiatric illness and is traditionally segregated from our general concept of what constitutes bodily injury, that is not the case within s. 266(1) of the Insurance Act. Nervous shock constituted an independent claim brought by the plaintiffs and failed to meet the criteria set out in s. 266(1).
On the question whether those involved in a motor vehicle accident bringing separate claims are excepted because of the death of an injured person, such an interpretation would expand the number of claimants contrary to the intent of the Act and offends not only the purpose of the legislation in s. 266(1) but the clear reading of the words therein.
Per Southey J. (dissenting): The immunity for potential defendants otherwise created by s. 266(1) of the Insurance Act is removed where the injured person has died. With the removal of that immunity, all claims arising out of the injuries to the injured person remain actionable, including claims for damages suffered by third persons for nervous shock resulting from those injuries. It is immaterial that nervous shock may not fall within the conditions described in ss. 266(1)(a) or (b).
APPEAL from a decision that certain claims are not barred by s. 266(1) of the Insurance Act, R.S.O. 1990, c. I.8.
Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354, 48 M.V.R. (2d) 1 (C.A.), apld Other cases referred to Kemppainen (Litigation guardian of) v. Winter (1997), 1997 12307 (ON SC), 143 D.L.R. (4th) 760, [1997] O.J. No. 632 (Gen. Div.); Macartney v. Islic, 1996 22078 (ON CJ), [1996] O.J. No. 411 (Gen. Div.); Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104, 22 C.C.L.T. 21 (C.A.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3 Insurance Act, R.S.O. 1990, c. I.8, ss. 227(1) [am. 1996, c. 21, s. 17], 266(1)
John R. Sigouin, Q.C., for appellants. Lawrence Greenspon, for respondents.
O'LEARY J.: --
The Issue
The question for determination on this appeal is whether the plaintiffs, being the father, mother and four-year-old brother of Jonah Corrigall, aged two years, who was killed instantly in front of them when he was run over by a tractor-trailer, can sue the driver and owner of the vehicle for the nervous shock they suffered from witnessing his death.
The accident happened on November 29, 1990, and so the plaintiffs' right to sue is subject to the restrictions placed on that right by s. 266(1) of the Insurance Act, R.S.O. 1990, c. I.8.
Section 266(1), as it read at the time of the accident, took away the right to sue from all who suffered personal injury in a motor vehicle accident"unless . . . the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature."
It is admitted in the factum of the plaintiffs that "none of the plaintiffs suffered physical injuries".
Since the plaintiffs have suffered no disfigurement or impairment of a bodily function by an injury which is physical in nature, and since in regard to their nervous shock claims they are claiming for their own individual injuries and in making those claims do not as it were stand in the shoes of the deceased Jonah Corrigall or claim under the Family Law Act, R.S.O. 1990, c. F.3 for losses suffered because of his death, I conclude for the reasons that follow that the claims for nervous shock are barred by s. 266(1).
The Submissions of the Plaintiffs
The first argument of counsel for the plaintiffs is that s. 266(1) deals only with actions for "bodily injury" and so does not take away actions for psychological injuries such as nervous shock.
My answer: Section 266(1) of the Insurance Act at the relevant time provided in part:
266(1) In respect of loss or damage arising directly or indirectly from the use . . . of an automobile . . . none of the owner . . . the occupants of an automobile or any person present at the incident are liable in an action . . . for loss or damage from bodily injury arising from such use or operation . . . involving the automobile unless, as a result of such use or operation, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.
Any doubt that might otherwise have existed as to the meaning of s. 266(1) and in particular as to the meaning of the words "bodily injury" has been taken away by the Court of Appeal in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354. Dealing with the meaning of s. 266(1), the court states at p. 145:
Section 266(1) creates an immunity for potential defendants from liability in an action for loss or damages. We stress that the words used by the legislature are that no potential defendant is "liable in an action . . . for loss or damage from bodily injury". The result is that potential defendants are immune from actions for damages. The legislature has, however, created exceptions
At p. 136 the court states:
Section 266(1) essentially does two things. First, it immunizes the owner and occupants of motor vehicles . . . from actions in Ontario for loss or damage arising out of motor vehicle accidents . . . . The second thing which s. 266(1) does is create an exception for certain injured persons. The real inquiry required by the legislation in each case is to determine whether "the injured person" falls within one . . . of the statutory exceptions to the general immunity. . . . the legislature did not choose to express itself in difficult or technical terms. It used words which are common and which are in everyday use.
I point out that the Court of Appeal while specifically recognizing that s. 266(1) speaks of "bodily injury", still stated that subject to the exceptions, s. 266(1) immunizes potential defendants from actions for loss or damage arising out of motor vehicle accidents. It follows that subject to the exceptions, s. 266(1) immunizes potential defendants from actions based on psychological injury as well as physical injury.
The use by the legislature of the words "bodily injury" to include both physical and psychological injury to the person seems less unusual when one examines the Certificate of Automobile Insurance (Ontario) sent out by insurance companies to automobile owners on renewal of their insurance policies. The Certificate reads in part:
This certificate is proof of a contract of insurance between the named insured and the insurer subject in all respects to the Ontario Automobile Policy (OAPI). In return for the premium charged and the statements contained in the application, the contract provides the coverage outlined in this Certificate.
ITEM 4 -- INSURANCE COVERAGE
LIABILITY PREMIUM IN DOLLARS
Limit Bodily Property Injury Damage
It is obvious that the words "bodily injury" are used to describe all injury to persons and not just physical injury, for if not so interpreted, the insured is not protected against claims for personal injury that are non physical in nature.
The wording of the certificate is authorized by the Insurance Act, s. 227(1) of which reads:
227(1) No insurer shall use a form of policy, endorsement or renewal, a claims form or a continuation certificate in respect of automobile insurance other than a form approved by the Commissioner.
The second argument of counsel for the plaintiffs is that s. 266(1) creates exemptions from the general immunity it confers on potential defendants and one of those exemptions is where "the injured person has died". Here Jonah Corrigall has died in the accident and so it is said an exemption exists that allows the plaintiffs to advance their claims for their own personal injuries.
My answer: Section 266(1) creates an exemption to the immunity it confers on potential defendants where "the injured person has died" not where "an injured person has died"? If the section had read where "an injured person has died" then all who suffered injuries "directly or indirectly" because of the accident would be able to sue for those injuries if the accident caused the death of anyone. But the section says in effect that the potential defendants "are liable in an action . . . for loss or damage from bodily injury" where "the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature."
It is to be noted that it must be the injured person who has died or whose injuries satisfy cls. (a) or (b) quoted above, before there is an exemption from immunity. Here the injured persons who are attempting to sue for their nervous shock injuries obviously have not died nor do they fit within cls. (a) or (b).
Where as here the injured person has died, claims that the law permits because of the injuries to or the death of the injured person may be pursued. In fact the plaintiffs have pursued those claims in this action and the defendants agree they are entitled to do so. The claims the plaintiffs have made for their losses pursuant to the Family Law Act, R.S.O. 1990, c. F.3 are claims the Act permits because the injured person (Jonah Corrigall) has died.
The claims by the plaintiffs for their nervous shock injuries are not derivative claims based on the death of Jonah Corrigall, but are separate, independent actions based on the personal injuries each of them suffered. Nor can it be said those claims for nervous shock injuries are dependent on the death of Jonah Corrigall though his death did occur. Those injuries could likewise have occurred if the child had been horribly and painfully maimed, but did not die. The nervous shock injuries flow from trauma to the plaintiffs as a result of their having witnessed the accident but it is not a necessary ingredient of the cause of action that Jonah Corrigall must have died.
In any event if it could be said that the death of Jonah Corrigall caused the nervous shock injuries, the plaintiffs are still claiming as persons who have themselves suffered personal injuries and do not fit within the exceptions to immunity created by s. 266(1) in that they have not died nor meet the requirements of cls. (a) or (b) above.
The Court of Appeal in Meyer v. Bright, supra, has given guidance as to how s. 266(1) is to be interpreted. At p. 134, the court states:
In our opinion, the legislation here is essentially remedial and the words in s. 266 of the Act should be interpreted in their ordinary and natural sense, and in harmony with the object and scheme of the Act.
Since the scheme of the Act is to limit the right of victims of motor vehicle accidents to maintain tort actions any ambiguity as to the meaning of the exemption from immunity contained in the words "unless . . . the injured person has died" should be resolved in favour of upholding the immunity. I do not however feel there is any ambiguity about the meaning of those words. They mean as I have said previously that an action can be brought by those who are entitled in law to claim on behalf of the person who died and those who have by the Family Law Act, been given a right to make certain claims because of the death.
Paragraph 12 of the statement of claim reads:
In addition, as a result of the death of the deceased, the plaintiffs have suffered the following losses and damages pursuant to the Family Law Act, R.S.O. 1990, chapter F.3:
(a) loss of their relationship and companionship with the plaintiff over the course of his expected life;
(b) loss of the financial support which the deceased would have provided to them in their later years;
(c) loss of enjoyment of life, frustration, and anguish arising from the mental suffering, depression, nightmares and unhappiness caused by the loss of the plaintiff as son and brother to them.
The plaintiffs are not authorized by the Family Law Act to make the claim set out in para. 12(c) above. As stated by Robins J.A. in Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27 at p. 39, 139 D.L.R. (3d) 104 in dealing with an award for loss of guidance, care and companionship resulting from the death of a child:
The award properly excludes grief, sorrow and mental anguish suffered by reason of the death as compensable items of damage. Non-pecuniary loss of this kind, unlike guidance, care and companionship, are not provided for in the Act and under its terms remain non-recoverable.
I would therefore allow the appeal, and strike out para. 11 of the statement of claim (the nervous shock claims) and para. 12(c) (the claims for anguish, unhappiness, mental suffering, etc.) and the words "In addition" at the beginning of para. 12; with the appellants to have their costs both here and below to be assessed.
CUSINATO J. (concurring): -- I have reviewed the reasons of O'Leary J. and concur with his disposition of this appeal. I wish, nonetheless, to add a few additional comments.
In my own consideration of the respondents' arguments, although I accept nervous shock is a psychiatric illness, and traditionally segregated from our general concept of what constitutes bodily injury, that is not the case within s. 266(1).
On this aspect of our review, O'Leary J. has extensively outlined in his reasons the purpose of this legislation. It is, as expressed by our own Court of Appeal in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354, remedial. Accepting this to be the case "nervous shock" constitutes an independent claim as brought by the plaintiffs and therefore fails to meet the accepted criteria provided by s. 266(1). It is for this reason those claims brought by the plaintiffs must fail.
On the second question raised by the respondent of whether those involved in the motor vehicle accident bringing separate claims are excepted because of the death of an injured person, such an interpretation would expand the number of claimants contrary to the intent of the Act and offends not only the purpose of the legislation in s. 266(1) but the clear reading of the words therein. For both of these reasons I accept Justice O'Leary's disposition as the correct interpretation.
SOUTHEY J. (dissenting): -- I have had the benefit of reading the reasons for judgment of my brother O'Leary, but regret that I am unable to agree with his interpretation of s. 266 of the Insurance Act, R.S.O. 1990, c. I.8 or his application to this case of the decision of the Court of Appeal in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354.
In Meyer v. Bright, at p. 136, the Court of Appeal described the effect of s. 266(1), in part, as follows:
Section 266(1) essentially does two things. First, it immunizes the owner and occupants of motor vehicles, and persons present at the incident, from actions in Ontario for loss or damage arising out of motor vehicle accidents which occur after June 21, 1990 in Canada, the United States and certain other jurisdictions. The second thing which s. 266(1) does is create an exception for certain injured persons. The real inquiry required by the legislation in each case is to determine whether "the injured person" falls within one or more of the statutory exceptions to the general immunity. . . .
Section 266(1) creates three exceptions to the immunity from action. They apply when as a result of the use or operation of a motor vehicle:
(a) The injured person has died, or
(b) The injured person has sustained permanent serious disfigurement, or
(c) The injured person has sustained permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature.
It is unnecessary, for the purpose of these appeals, to discuss the first exception.
Thus, the Court of Appeal did not consider the situation that exists in the case at bar, where the injured person died.
The issue in Meyer v. Bright was whether injured persons, who have suffered injuries that fall within cls. (b) or (c) of s. 266(1), can recover damages not only for those injuries, but for other injuries as well. The answer of the Court of Appeal was "Yes". The court held that the existence of injuries falling within cls. (b) or (c) removed the immunity from liability that s. 266(1) otherwise provided, and permitted an injured person to sue for loss or damage for bodily injury at large. The court used the following words at p. 145:
For ease of expression when discussing s. 266(1) we will use the words "potential defendants" in place of the words "the owner of the automobile, the occupants of the automobile, or any person present at the scene". Section 266(1) creates an immunity for potential defendants from liability in an action for loss or damage. We stress that the words used by the legislature are that no potential defendant is "liable in an action . . . for loss or damage from bodily injury". The result is that potential defendants are immune from actions for damages. The legislature has, however, created exceptions. The immunity exists "unless" the injured person has died or sustained injuries which fall within cls. (a) or (b). The statute in express terms therefore has said that the immunity does not apply if one of the statutory exceptions is satisfied. If the statutory exception is satisfied the immunity created by the statute ceases to exist and there is no bar to an action. Because the immunity does not apply in such case an injured person retains his right to sue "for loss or damage from bodily injury" at large.
In the case at bar, the immunity for potential defendants otherwise created by s. 266(1) is removed because the injured person died. With the removal of that immunity, all claims arising out of the injuries to the injured person remain actionable, including claims for damages suffered by third persons for nervous shock resulting from those injuries. It is immaterial that nervous shock may not fall within the conditions described in cls. (b) or (c).
I can see nothing in s. 266 that limits the claims arising out of injuries that have caused death to claims under the Family Law Act. The claims under the Family Law Act have been described as "derivative claims". That description applies equally to claims for damages for nervous shock arising out of the injuries to the deceased person.
In my opinion, Yates J. correctly decided the point in Macartney v. Islic, 1996 22078 (ON CJ), [1996] O.J. No. 411 (Gen. Div.) at para. 26. I respectfully disagree with the contrary decision of Hockin J. in Kemppainen (Litigation guardian of) v. Winter (1997), 1997 12307 (ON SC), 143 D.L.R. (4th) 760, [1997] O.J. No. 632 at para. 11 (Gen. Div.).
I agree with O'Leary J. that the claim in para. 12(c) of the statement of claim in the case at bar should be struck. The claim in that clause is for damages for:
(c) loss of enjoyment of life, frustration, and anguish arising from the mental suffering, depression, nightmares and unhappiness caused by the loss of the plaintiff as son and brother to them.
Paragraph 11 of the statement of claim, claiming damages for nervous shock, should not be struck out, nor should the introductory words of para. 12"In addition".
Except with respect to claim (c) of para. 12 of the statement of claim, I would dismiss the appeal with costs to the respondents (plaintiffs), to be assessed.
Appeal allowed.