The Dominion of Canada General Insurance Company v. Chambers

[Indexed as: Dominion of Canada General Insurance Co. v. Chambers]

Ontario Reports

Ontario Superior Court of Justice,

Rady J.

October 24, 2013

117 O.R. (3d) 342 | 2013 ONSC 6122

Case Summary

Insurance — Automobile insurance — Statutory accident benefits — Catastrophic impairment — Section 45 of Statutory Accident Benefits Schedule requiring insured to specify one accident in respect of which determination of catastrophic impairment is requested — Insured not precluded from claiming that he or she is catastrophically impaired as result of cumulative effect of multiple accidents and that specified accident was tipping point — Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10, s. 45. [page343]

The respondent was injured in three motor vehicle accidents between 2003 and 2005, and submitted a claim for accident benefits after each accident. In 2012, she submitted an OCF-19 ? Application for Determination of Catastrophic Impairment, listing the dates of all three accidents under "Date of Accident". The applicant insurer returned the OCF-19 form and requested a separate OCF-19 for each accident. The respondent declined. The applicant brought an application to determine whether s. 45 of the Statutory Accident Benefits Schedule ("SABS") precludes an insured person from submitting an application for a determination of catastrophic impairment which lists more than one car accident and purports to claim that the insured is catastrophically impaired as a result of the cumulative effects of the multiple car accidents.

Held, the application should be granted in part.

The legislation is intended to define catastrophic impairment by reference to a single accident. Section 45 of the SABS requires an insured to specify one accident in respect of which a determination of catastrophic impairment is requested. However, the insured is not precluded from claiming that he or she is catastrophically impaired as a result of the cumulative effect of multiple car accidents, where the specified accident was the tipping point that propelled him or her toward a catastrophic designation.

Cases referred to

Baillargeon v. Murray (2001), 52 O.R. (3d) 278, [2001] O.J. No. 148, [2001] O.T.C. 10, 25 C.C.L.I. (3d) 44, 10 M.V.R. (4th) 92, 2001 28251, 102 A.C.W.S. (3d) 833 (S.C.J.); Bank of Montreal v. Gratton, 1987 2436 (BC CA), [1987] B.C.J. No. 1887, 45 D.L.R. (4th) 290, [1988] 1 W.W.R. 372, 18 B.C.L.R. (2d) 138, 6 A.C.W.S. (3d) 364 (C.A.); Galdamez v. Allstate Insurance Co. of Canada (2012), 111 O.R. (3d) 321, [2012] O.J. No. 3394, 2012 ONCA 508, 294 O.A.C. 133, [2012] I.L.R. I-5313, 36 M.V.R. (6th) 117; Gorman v. Falardeau, [2005] O.J. No. 2213, 254 D.L.R. (4th) 347, 197 O.A.C. 316, 23 C.C.L.I. (4th) 167, 15 C.P.C. (6th) 158, 18 M.V.R. (5th) 194, 2005 18837, 139 A.C.W.S. (3d) 851 (C.A.); Jack v. Manitoba (Registrar of Motor Vehicles), 1972 1002 (MB QB), [1972] M.J. No. 110, 27 D.L.R. (3d) 370, [1972] 4 W.W.R. 602 (Q.B.); Kirkham v. State Farm Mutual Automobile Insurance Co., [1998] O.J. No. 6459, 1998 CarswellOnt 2811 (Div. Ct.); Monks v. ING Insurance Co. of Canada (2008), 90 O.R. (3d) 689, [2008] O.J. No. 1371, 2008 ONCA 269, [2008] I.L.R. I-4694, 235 O.A.C. 1, 61 C.C.L.I. (4th) 1, 66 M.V.R. (5th) 38, 165 A.C.W.S. (3d) 918

Statutes referred to

Chattel Mortgage Act, R.S.B.C. 1979, c. 48, s. 23

Insurance Act, R.S.O. 1990, c. I.8 [as am.]

Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, ss. 46, 47, 67

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 14.05(3) (d)

Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10, ss. 3 [as am.], (1), (2), (d)(i), (ii), (3), (5)(c), 14, 15 [as am.], 16 [as am.], 19(3)2, 45 [as am.], (1) [as am.], 66

Authorities referred to

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) [page344]

APPLICATION for a determination of a question of law.

Lawrence Foy and Anna-Marie Musson, for applicant.

Karl Arvai and William Brennan, for respondent.

Endorsement of RADY J.: —

Introduction

[1] This application was commenced by Dominion for a determination of whether Ms. Chambers is permitted to apply once for a finding of catastrophic impairment relying upon three separate car accidents, which she says cumulatively have caused a catastrophic impairment, or must she proceed by way of separate applications for each accident.

[2] Dominion asks for "an order that s. 45 of the SABS [Statutory Accident Benefits Schedule -- Effective September 1, 2010, O. Reg. 34/10 ("SABS")] precludes an insured person from submitting an application for a determination of catastrophic impairment, which lists more than one car accident and purports to claim that the insured is catastrophically impaired, as a result of the cumulative effects of the multiple car accidents."

[3] Section 45(1) of SABS provides that an insured who sustains an impairment as a result of an accident may apply for catastrophic designation.

[4] Dominion relies on rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which authorizes the commencement of an application where the relief claimed is the determination of rights that depend on the interpretation of a statute or regulation.

Facts

[5] Ms. Chambers was involved in a car accident on May 18, 2003. She is alleged to have sustained soft tissue injuries to her neck, shoulder and left hand, headaches, tinnitus, impaired hearing and temporomandibular joint pain as a result. She submitted a claim to Dominion for accident benefits following the accident.

[6] She was involved in a second accident on June 20, 2003. She is alleged to have suffered soft tissue injuries to her back and an exacerbation of neck pain and headaches as a result. Another claim for accident benefits to Dominion followed.

[7] Ms. Chambers was in a third accident on February 3, 2005. She says that she suffered soft tissue injuries to her back and an exacerbation of her prior injuries. It is alleged that she suffers [page345] from depression and a mood disorder as a result of the accident. She submitted another claim for accident benefits.

[8] On April 18, 2012, she submitted an OCF-19 -- Application for Determination of Catastrophic Impairment completed by Dr. George Gale. On the OCF-19 form, Dr. Gale lists the "Date of Accident" as May 18, 2003, June 20, 2003 and February 3, 2005. Dr. Gale concluded that Ms. Chambers met the definition of catastrophically impaired based on Criteria 7 -- a whole person impairment rating of 55 per cent or more; and Criteria 8 -- a class IV or V impairment due to mental or behavioural disorder as a result of the cumulative effects of the three car accidents.

[9] On May 1, 2012, Dominion returned the OCF-19 form as completed by Dr. Gale and requested a separate OCF-19 for each accident. Ms. Chambers declined to do so and took the position that she need submit only one OCF-19 for the cumulative effect of all three car accidents.

[10] This application followed. The issue is significant to the parties because the determination of catastrophic impairment increases the available policy limits on medical and rehabilitation benefits from $100,000 to $1 million; attendant care benefits from $72,000 to $1 million; and housekeeping benefits are payable for an insured's lifetime.

[11] As will be seen, the plaintiff's interpretation of the legislation introduces the possibility of benefits being increased to multiples of $1 million depending on the number of underlying accidents said to feed into a cumulative catastrophic impairment.

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