Victoria Edwards, a personal injury lawyer with Siskinds LLP, was recently published in Law360.
This article was originally published by Law360™ Canada, part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – Law360™ Canada – Posted: September 8, 2023
The Ontario Divisional Court recently issued a decision that reminds insureds, insurers and Licence Appeal Tribunal adjudicators that the goal of the statutory accident benefits schedule (SABS) is to reduce the economic dislocation and hardship of motor vehicle accident victims. When adjudicating disputes between insurers and their insureds, the tribunal should interpret the SABS in a remedial and inclusive way.
In Kellerman-Bernard v. Unica Insurance Co., [2023] O.J. No. 3467, the appellant’s son was seriously injured in a motor vehicle accident when he was riding his bicycle. As a result of his injuries, the appellant sustained psychological injuries. The appellant herself was not directly involved in the accident, however she was still considered an “insured person” within the meaning of the SABS.
The appellant applied for a catastrophic designation (CAT designation) to access the enhanced benefits available for insureds who fall into this category. The insurer, Unica Insurance Company, denied her application and the matter went before the tribunal. In a Feb. 3, 2022, decision, the hearing adjudicator determined that the appellant was not entitled to apply for a CAT designation because she was not part of the class of insured persons who were entitled to seek a CAT designation.
The Divisional Court overturned the tribunal’s decision and admonished the tribunal for adopting an unduly narrow and exclusionary interpretation of the consumer protection legislation that is the SABS.
The statutory framework
Section 3(1) of the SABS defines what it means to be an “insured person.” There are two classes of people who are named in the automobile policy who qualify as “insured persons:”
- Named insureds who are actually involved in the accident; or
- Named insureds who are not actually involved in the accident but who suffer psychological or mental injury as a result of the fact that their family member was involved in the accident.
The applicant fell into the second category.
Section 45(1) of the SABS grants an “insured person” the right to seek a CAT designation. It reads:
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(2) of the SABS sets out the criteria by which an insured person may be found to be catastrophically impaired. The criteria are preceded by the phrase:
(2) for the purposes of this Regulation, a catastrophic impairment caused by an accident is …
The tribunal focused on the phrase “caused by an accident” in s. 3(2) and found that the applicant was not entitled to apply for a CAT designation because she was not directly involved in the accident and thus her impairment was not caused by the accident. The tribunal created a class of insured persons who are entitled to statutory accident benefits but who are not entitled to apply for the enhanced benefits under the CAT designation.
Tribunal’s errors
The tribunal made several errors of law, including:
- ignoring the plain language of the SABS;
- failing to consider the words “caused by an accident” in the entire relevant context; and,
- the interpretation adopted by the tribunal ignores the purpose of the SABS.
a. Plain language
When interpreting a statute, the court or tribunal must 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/tribunal should give effect to those words.
The express language of s. 45(1) states that “an insured person” may apply for a CAT designation. The plain language is clear and puts no restriction on who can apply for such a designation. Another section of the SABS, s. 28(2), does expressly limit who can apply for optional benefits. If the legislature wanted to limit who could apply for a CAT designation, it would have included a more specific list such as the one found in s. 28(2).
b. ‘Caused by an accident’
The proper approach to statutory interpretation requires reading the language chosen by the legislature in its entire relevant context. The tribunal failed to do this.
Instead, the tribunal took the phrase “caused by an accident” in s. 3(2) out of context and then asked itself if whether the appellant’s impairment was caused by an accident within the meaning of case law that has no application to the case at bar. The case law that the tribunal considered dealt with entitlement to benefits of people who were not clearly “insured persons” within the meaning of the SABS.
c. Purpose of the SABS
In Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65, the Supreme Court of Canada reiterated that the words of a statute are to 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.”
The SABS are remedial and constitute consumer protection legislation and ought to be read, interpreted and applied in such a way.
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. The definition is meant to be remedial and inclusive, not restrictive.
The goal of the SABS 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. The approach taken by the tribunal in this case was restrictive. Instead of fostering fairness for people with the most health needs, it increases their suffering and economic hardship.
Conclusion
The appeal was allowed. The tribunal decision, and reconsideration decision, were set aside. The appellant was eligible to make a claim for a CAT designation. The Divisional Court was comfortable making this finding because it would be a waste of time to send the matter back to the tribunal for further reconsideration. The result would be inevitable.