CITATION: Patchett v. Optimum et al, 2021 ONSC 8466
DIVISIONAL COURT FILE NO.: 315/21
DATE: 20211230
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Matheson and Sheard JJ.
BETWEEN:
COLLEEN PATCHETT
Applicant/Appellant
– and –
OPTIMUM INSURANCE COMPANY and LICENCE APPEAL TRIBUNAL
Respondents
Samia Alam and Allen Wynperle for the Appellant
Amanda M. Lennox for the Respondent, Optimum Insurance Company
Douglas Lee for the Respondent, Licence Appeal Tribunal
HEARD: December 14, 2021
SHEARD J.:
Overview
[1] The appellant appeals the decisions made by adjudicator Jesse A. Boyce (Adj. Boyce) of the Licence Appeal Tribunal (“LAT”). In his decision of March 16, 2021 (the “Reconsideration Decision”) Adj. Boyce dismissed the appellant’s request for reconsideration of his decision dated November 26, 2020 (the “LAT Decision”) in which the appellant was found not catastrophically impaired pursuant to Section 3.1(1) 2. iii of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”).
[2] This appeal concerns the interpretation and application of s. 3.1(1) 2. iii of the SABS.
[3] The parties agree that the LAT Decision is the first time s. 3.1(1) 2. iii had been considered by the LAT and that this is the first time that section will have been considered by this court.
[4] Adj. Boyce determined that to satisfy the definition of catastrophic impairment under s. 3.1(1) 2. iii, there must be:
(i) a severe and permanent alteration of the structure of one or both legs; and
(ii) a severe and permanent alteration of function of one or both legs.
[5] The parties filed an Agreed Statement of Facts (“ASF”) to be relied upon in the LAT hearing, which proceeded in writing. Based on the facts set out in the ASF, Adj. Boyce concluded that although the appellant did have a severe and permanent alteration of the structure of one or both of her legs, the appellant had not suffered a permanent alteration of function in her leg, as measured by “a permanent score between zero and five on Item 12 of the Spinal Cord Independence Measure (“SCIM”)”.
[6] For the reasons set out below, I find that the Adj. Boyce was correct in law in the LAT Decision and in the Reconsideration Decision. As a result, I would dismiss the appeal with costs, payable by the appellant to the respondent, Optimum Insurance Company, in the agreed-upon amount of $5,000 all inclusive. No costs are payable by or to the LAT.
Statutory Framework
[7] The Insurance Act, R.S.O. 1990, c. I.8 and the SABS codify Ontario’s no-fault accident benefits regime. Pursuant to s. 268(1) of the Insurance Act, every automobile insurance policy in Ontario is deemed to include the benefits provided in the SABS. The LAT has exclusive jurisdiction under s. 280 of the Insurance Act to resolve any disputes “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”
[8] The LAT is an administrative tribunal created pursuant to the LAT Act. The appeal before this court is governed by ss. 11(1) and (6) of the LAT Act, which state as follows:
(1) Subject to subsections (2) to (6), a party to a proceeding before the Tribunal relating to a matter under any of the following Acts may appeal from its decision or order to the Divisional Court in accordance with the rules of court:
(6) An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.
[9] Section 3.1(1) 2. of the SABS reads as follows:
3.1(1) Catastrophic impairment
- Severe impairment of ambulatory mobility or use of an arm, or amputation that meets one of the following criteria:
(i) Trans-tibial or higher amputation of a leg.
(ii) Amputation of an arm or another impairment causing the total and permanent loss of use of an arm.
(iii) Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 (Mobility Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.
Background
[10] The facts summarized below are taken from the ASF.
[11] On February 3, 2018, the appellant, then 61 years old, was struck by an SUV while walking toward her vehicle in the parking lot of a grocery store. The impact caused her to fall to the ground, injuring her right foot and leg. She was transported via ambulance to the hospital where she underwent various surgeries for her injuries. The appellant remained in hospital until March 31, 2018 when she was transferred to a long-term care facility for a 90-day program. The appellant was released home on June 29, 2018, nearly 5 months post-accident. She was provided with assistive devices, including a wheelchair, bath/transfer bench, bariatric rollator walker, and a 30-inch multi-reacher, with suction cups.
[12] On August 2, 2018, the appellant required a further surgery to address infection at her surgical site.
[13] In addition to the right tibial plateau fracture and right metatarsal fracture, the appellant reported right knee pain and loss of range of motion; edema throughout her lower left extremity from the knee to the foot; right ankle and foot pain resulting in difficulty with ambulation; and significant wounds on the anterior aspect of her right lower extremity.
[14] On September 11, 2018, Ms. Galbraith, a treating occupational therapist, completed a medical-legal OT assessment at the appellant’s home and completed a Part 12: Mobility Indoors assessment. The appellant’s SCIM score was 4.
[15] On January 29, 2019, Dr. Dinesh Kumbhare, physiatrist, completed a file review from which he prepared an OCF-19 under criterion 2 - severe impairment of ambulatory mobility or use of arm or amputation. Dr. Kumbhare did not conduct an in-person assessment of the appellant. Dr. Kumbhare was of the opinion that the appellant fell under the fourth scenario of the SCIM. The OCF-19 was submitted to Optimum on March 26, 2019.
[16] As part of the IE catastrophic impairment (“CAT”) assessments, the appellant was assessed by Dr. Bruce Paitich, orthopedic surgeon, and Elyse Freedman, occupational therapist, on June 11 and 13, 2019, respectively. Both Dr. Paitich and Ms. Freedman conducted in-person assessments of the appellant. The appellant scored greater than 5 on the SCIM and both Dr. Paitich and Ms. Freedman determined that the appellant was not catastrophically impaired as a result of the accident based on criteria 2 of section 3.1 (1) of the SABS.
[17] On July 3, 2019, Optimum denied the appellant a CAT designation based on the Section 44 IE assessments, having determined that the appellant did not achieve the threshold for catastrophic impairment designation under Criterion 2.
[18] The parties agree that since February 3, 2018, the appellant has suffered a permanent and severe alteration of the function and structure of her right knee, right ankle, and right lower extremity.
[19] The parties agree that as of September 2018, the appellant’s permanent and severe impairment of function and structure of her right leg resulted in a score of 5 or less on the SCIM.
[20] The parties agree that as of July 2019, the appellant’s permanent and severe alteration of function and structure of her right leg resulted in a score of greater than 5 on the SCIM, when applied over a distance of up to 10 metres on an even surface.
The LAT Decision
[21] In the LAT Decision, Adj. Boyce determined that the appellant did not meet the criteria for catastrophic impairment under s. 3.1(1) 2. (iii) of the SABS.
[22] Adj. Boyce accepted that the appellant scored 4 on the SCIM in September 2018, which met the threshold for a CAT designation. However, because the appellant registered a score of greater than 5 on July 3, 2019, Adj. Boyce concluded that the functional alteration of the appellant’s leg function had been temporary and did not meet the CAT criteria that it be permanent.
[23] At para. 19 of the LAT Decision, Adj. Boyce stated:
… my plain reading of the language of the first component of criteria 2(iii) leads me to believe that there must be "severe and permanent alteration of the structure of one of both legs" ("structure"), and "severe and permanent alteration of function of one or both legs" ("function"). On a plain reading, I find that the "function" referenced by the latter relates to mobility, namely the ability to traverse across a flat surface for a distance of 10 metres with or without a mobility aid. The SCIM scale is the test that is to be used to determine the applicant's functional mobility. While there is no dispute that the "structure" of the applicant's leg has been severely and permanently altered, I find the language of the "function" condition also requires the applicant's alteration of function to be "severe and permanent". As we know, the severity and permanency of the "function" condition is assessed using Item 12 of the SCIM. As a result, on my plain reading, I find criteria 2(iii) requires a permanent alteration of function in the leg, measured by a permanent score between zero and five on Item 12 of the SCIM.
[24] In paras. 20 to 24 of the LAT Decision, Adj. Boyce explains how he reached his conclusion. In these paragraphs, Adj. Boyce expresses the view that a score of between zero and five on the SCIM on a “temporary basis at any single point post-accident” is not sufficient to receive a [CAT] designation where that mobility impairment is not permanent (at para. 20).
[25] Adj. Boyce noted that on the evidence, it appeared that the appellant “was using a single crutch (and progressing to a cane, according to the report) at the time of the s. 44 IE’s in June 2019 and admits that she no longer registers a SCIM scale of zero to five.” Adj. Boyce concluded that appellant’s temporary need to use two crutches was not comparable to an insured who loses a limb “for the rest of their life” thereby “requiring a mobility aid on a permanent basis (at paras. 21, 22).
[26] Adj. Boyce rejected the appellant’s narrow interpretation of s. 3.1(1) 2. (iii) which, if accepted, would result in a CAT determination of an insured whose loss of functional mobility was permanent and of an insured whose loss of functional mobility was only temporary. In Adj. Boyce’s view s. 3.1(1) 2. (iii) “governs rather severe and permanent ambulatory impairments” (at para. 22).
[27] In support of his conclusion, Adj. Boyce noted that all the other criteria under s. 3 of the SABS require permanency of impairment. Adj. Boyce understood the appellant’s position to be that although “she only met the 2(iii) criteria for a temporary period and agrees that her mobility impairment is not permanent, she would still be entitled to the enhanced benefits that accompany a CAT designation, even though she is progressing from her impairments, no longer requires the use of two mobility aids and will seemingly have no permanent mobility impairment” (at para. 24).
[28] Adj. Boyce found that the appellant’s interpretation of s. 3.1(1) 2. iii would not only be inconsistent with the rest of s. 3 but would also be contrary to The Recommendations and the Superintendent's Report[^1] that led to the amendments of s. 3. Adj. Boyce acknowledged that in drafting the amendments, the Legislature did not include the word “permanent” with respect to the SCIM. Adj. Boyce did not accept the appellant’s submission that the omission of the word “permanent” leads to an inference that the Legislature intended to broaden this specific criteria of s.3.
[29] Adj. Boyce concluded that, on its face, s. 3.1(1) 2. iii requires a permanent loss of mobility function that is measured by a score of 0 to 5 on the SCM “on a permanent basis” and was not intended to “include the very rare category of individuals involved in an accident who have permanent structural damage to a leg but have only temporary mobility impairments requiring the use of bilateral aids” (at para. 28).
[30] Adj. Boyce rejected the appellant’s argument that unless her interpretation were adopted, it would permit CAT denials to be based on the timing of IEs. Adj. Boyce noted that the appellant, herself, was attempting to benefit from the (early) timing of her “own SCIM assessment (three months into her rehabilitation and with a positive prognosis) to receive a CAT designation even though she concedes that she no longer meets the scoring requirements” (at para. 29).
[31] Adj. Boyce concluded that to require a permanent mobility score at between zero and five would not unfairly punish the appellant, whose “specific impairment, the temporary duration of same, the narrow window during which she required two mobility aids and her positive prospects for recovery, are a seemingly rare combination of facts” (at para. 30).
The LAT Reconsideration Decision
[32] The appellant requested a reconsideration of the LAT Decision. Her grounds are summarized at para. 2. of the Reconsideration Decision:
…the applicant submits that I erred by not accepting an agreed fact; by inserting a permanency requirement into the SCIM disability test; by narrowly interpreting an exclusion of benefits and the definition of CAT; by characterizing her mobility impairment as temporary; by suggesting that other criteria under s.3.1 require a permanent impairment of function; and, generally, by not accepting her plain reading of the Schedule [SABS], which is consumer-protection legislation.
[33] Adj. Boyce dismissed the appellant’s request for a reconsideration.
[34] Adj. Boyce disagreed that he had disregarded any fact set out in the ASF. He noted that at para. 26 of the ASF, the parties agreed that the appellant no longer suffered a functional impairment which resulted in a score of between 0 and 5 on the SCIM. He noted that the issue before him, set out at paragraph 14 of the LAT Decision, was whether s. 3.1(1) 2. iii required the appellant’s score of 0 to 5 on the SCIM to be a permanent mobility impairment or whether a score of zero to five at any point post-accident, even temporarily, results in a CAT designation under 5.
[35] Adj. Boyce articulated the appellant’s position to be that he erred by inserting a requirement of permanency to the SCIM score, instead of addressing when it would be appropriate to administer the SCIM, and whether to accept the score once given.
[36] Adj. Boyce found that he had made no error in the LAT Decision and that, as was set out in paras. 19 and 28 of the LAT Decision, “that a CAT designation like the one the applicant seeks requires a permanency of mobility impairment” (Reconsideration Decision, at para.12).
[37] Adj. Boyce also repeated paras. 21 and 22 of the LAT Decision in which he found that the appellant’s mobility impairment was not permanent and stated “that had the Legislature intended for the level of impairment to be anything but a permanent one, it would have specified the appropriate time to measure the impairment on the SCIM, as it did under the other criteria for CAT under s. 3 (Reconsideration Decision, at para.16).
[38] Adj. Boyce repeated paras. 23 and 24 of the LAT Decision and again found that the appellant’s position would lead to an absurd result “where out of all of the CAT impairments under s. 3.1 - paraplegia, amputation, loss of vision in both eyes and traumatic brain injuries among them - that the severe impairment of ambulatory mobility is the only criteria that would qualify for CAT despite being temporary” (Reconsideration Decision, at para. 19).
Issues
[39] The appellant’s grounds on this appeal, which essentially repeat the grounds raised on the Reconsideration Decision, are that Adj. Boyce erred in law:
(a) by not accepting the ASF that the appellant suffered a permanent and severe alteration of prior structure and function in her right leg as a result of the February 3, 2018 accident;
(b) by ignoring the medical evidence on file that the appellant routinely used two mobility aids (crutches) and not a cane and by concluding that her mobility impairment was not permanent when it had been agreed that it was;
(c) by inserting a permanency requirement into the SCIM test where no such language exists in s.3.1(1)2(iii);
(d) by suggesting the all other criteria under s. 3.1 of the SABS require a permanent impairment of function; and
(e) by ignoring the plain language of s. 3.1(1) 2(iii) and failing to interpret this provision in an inclusive manner as required by the consumer protection nature of the SABS.
Analysis
Standard of Review
[40] The LAT Act provides in s. 11(6) that an appeal lies to the Divisional Court from a decision of the LAT on a question of law only. The standard of review on a question of law is correctness.
[41] The LAT Reconsideration Decision and the LAT Decision involve the interpretation question of the LAT’s interpretation of s. 3.1(1) 2. iii of the SABS. The interpretation of a statutory provision is a question of law. Accordingly, the standard of review on the issue of the proper interpretation of s. 3.1(1) 2. iii of the SABS is correctness.
Rules of Statutory Interpretation
[42] We repeat and adopt the following principles of statutory interpretation set out by this court in Fratarcangeli v North Blenheim Mutual Insurance Company, 2021 ONSC 2997:
[28] A court interpreting a statutory provision must apply the “modern principle” of statutory interpretation. Words of a statute must be read “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 Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed., 1983) at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: Vavilov at para. 117.
[29] This “modern principle” has been adopted as the proper approach to statutory interpretation because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. Those who interpret the law – whether courts or administrative decision makers – must do so in a manner consistent with this principle of interpretation: Vavilov at para. 118.
[43] In my view, both the LAT Decision and the Reconsideration Decision demonstrate that Adj. Boyce applied the modern and proper approach to his interpretation of s. 3.1(1) 2. iii. Without repeating the key passages in those decisions, referenced earlier in these reasons, we note that in his interpretation, Adj. Boyce:
(1) read the applicable section in its grammatical and ordinary sense as well as in the context of section 3.1(1) (LAT Decision, para.19);
(2) considered the other criteria to be met under s. 3.1(1) 2. i and ii and concluded, correctly in my view, that those contemplated permanent mobility impairments that accompanied an amputation or permanent loss of use of a limb;
(3) considered and rejected the appellant’s interpretation that s. 3.1(1) 2. iii intended to capture a non-permanent mobility impairment (LAT Decision, para. 22);
(4) considered s. 3.1(1) 2. iii in the context of the CAT criteria under s. 3, all of which required permanency of impairment, albeit determined at distinct points in time post-accident;
(5) considered whether, had the Legislature intended that the SCIM assessment be taken at a certain point post-accident, it could have included that language in the section and that to allow a CAT denial based on the timing of EIs would be unfair. Adj. Boyce concluded the appellant, herself, was seeking to benefit from the timing of SCIM and to receive a CAT designation “even though she concedes that she no longer meets the scoring requirements… and would not meet the CAT test under criteria 2(iii) moving forward” (LAT Decision, at para 29.);
(6) considered the purpose of s. 3.1 (1) 2. iii in light of the opinions from the expert panel in the Recommendations for Changes to the Definition of Catastrophic Impairment Final Report of the Catastrophic Impairment Expert Panel to the Superintendent, April 8, 2011, and the recommendations put forth to the legislature in the Superintendent's Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, December 15, 2011, that “shaped the language of s. 3.1(1) 2. iii.” Adj. Boyce found that the expert panel, whose opinion was supported by the Superintendent who “adopted the recommendation from the Expert panel that an order to be deemed CAT, a permanent inability to walk independently based on the SEM was required” (LAT Decision at para. 26).
(7) considered the appellant’s submissions that the SABS is consumer-protection legislation and concluded that denying the appellant’s application for a CAT designation in the face of her “admittedly temporary mobility impairment would violate the consumer-protection norm of the [SABS] Schedule or the way that CAT matters have been interpreted by the Tribunal, generally: as being a permanent impairment requiring access to an enhanced level of benefits in order to aid in and recover from that permanent impairment.” (Reconsideration Decision at para 22, citing paras. 29 and 30 of the LAT Decision).
[44] The circumstances in which findings of fact or the assessment of evidence may give rise to an error of law are limited. As stated by the Court in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 at paras. 28-29:
There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).
If the adjudicator considered all the mandatory or relevant evidence, but reached the wrong conclusion, then the error is one of mixed law and fact. If the adjudicator erred in applying the law (the correct legal standard) to the facts, that is a matter of mixed law and fact: Southam Inc. at paras. 41-42.
[45] In this case, the parties agreed on the facts, which were jointly submitted to Adj. Boyce on the LAT hearing. The facts in the ASF included that:
Since February 3, 2018 the appellant had suffered a permanent and severe alteration of the function and structure of her right knee, right ankle and right lower extremity;
On September 11, 2018, her SCIM score was 4; and
As of July 2019, the appellant’s SCIM score was greater than 5.
[46] Adj. Boyce was asked to accept all the facts contained in the ASF. He did so.
[47] I disagree with the appellant’s submission that Adj. Boyce made an error of law by not going behind the facts in the ASF, specifically, the SCIM scores, or by not questioning or evaluating the “medical evidence on file”. The parties had agreed on the facts to be put before Adj. Boyce, and he did not err when he accepted those facts.
[48] There was no agreement in the ASF that only the SCIM assessment of September 11, 2018 could be considered by Adj. Boyce; nor was there any agreement with respect to any impropriety with the timing of the SCIM assessments undertaken by the other.
[49] In the ASF, the parties agreed that the appellant’s functional mobility had improved from an SCIM score of 4 on September 11, 2018 to a score of over 5 in June 2019: facts, which, on their face, led to the conclusion that the appellant’s mobility impairment of 4 on the SCIM was not permanent.
[50] Adj. Boyce acknowledged that the facts in this case - an insured who had suffered a severe and permanent alteration of the structure of her right leg, which had not left the appellant with a severe and permanent alteration of the function of that leg generating a SCIM score of 0 to 5, was “a seemingly rare combination of facts”.
[51] In my view, having correctly determined that s. 3.1(1) 2. iii required the functional impairment to be permanent, Adj. Boyce correctly concluded that the appellant had not satisfied that requirement.
Disposition:
[52] For the reasons set out above, I would dismiss this appeal.
Costs:
[53] As agreed between the parties, costs are payable by the appellant to the Respondent, Optimum, in the all-inclusive amount of $5,000. No costs are payable by or to the LAT.
Sheard, J.
I agree _______________________________
Lederer, J.
I agree _______________________________
Matheson, J.
Released: December 30, 2021
CITATION: Patchett v. Optimum et al, 2021 ONSC 8466
DIVISIONAL COURT FILE NOS.: 315/21
DATE: 20211230
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Matheson, Sheard JJ
BETWEEN:
COLLEEN PATCHETT
Applicant (Appellant)
– and –
OPTIMUM INSURANCE COMPANY and
LICENCE APPEAL TRIBUNAL
Respondents
REASONS FOR DECISION
Released: December 30, 2021
[^1]: Recommendations for Changes to the Definition of Catastrophic Impairment Final Report of the Catastrophic Impairment Expert Panel to the Superintendent, April 8, 2011 and with the recommendations put forth to the legislature in the Superintendent's Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, December 15, -2011