Divisional Court Delivers Justice to Catastrophically Injured Claimants
Since the beginning of the year, the Divisional Court has released two decisions where it found the Licence Appeal Tribunal had made errors in law in its interpretation of the statutory accident benefits schedule (the SABS). The tribunal’s misinterpretation of the law resulted in catastrophically injured claimants being denied access to benefits to which they should have been entitled. The Divisional Court overturned the tribunal’s decisions, thereby entitling those seriously injured claimants to much needed benefits.
These recent cases reveal an emerging trend by the tribunal of narrowing definitions in the SABS to eliminate claims, even in cases where catastrophic injuries have been sustained and benefits paid for extended periods of time. However, the Divisional Court appears to be resisting this trend, and instead applying the long-standing more liberal and broad interpretation of insurance contracts.
Before discussing this emerging trend, it is helpful to understand the law and how it has historically been interpreted. In Ontario, a person who wishes to access accident benefits through their auto insurer must be an “insured person” who was either “involved in an accident” or, if not involved in the accident, suffered psychological or mental injury as a result of physical injury to a family member. This definition of “insured person” is set out in the SABS.
The word “accident” is also defined in the SABS as “an incident in which the use or operation of an automobile directly causes an impairment …”. This definition contains two tests: the purpose test —whether the incident arose out of the use or operation of an automobile (the ordinary and well-known activities to which cars are put) and causation test — such use or operation directly caused the impairment.
Historically, these definitions have been given a liberal and broad interpretation to ensure the attainment of the SABS consumer protection objects. As such, there have been a variety of circumstances involving a car where it has been considered an “accident.” These include injuries resulting from a slip and fall on ice while exiting/entering a vehicle, injuries caused by loading a child into a car seat and injuries resulting from cleaning/maintaining/inspecting a vehicle.
Unfortunately, the current trend from the tribunal is a very narrow interpretation of the law.
In Madore v. Intact Insurance Co., [2023] O.J. No. 10, the claimant was cleaning/inspecting the roof of his trailer when he fell to the ground and suffered a traumatic brain injury (involving a fractured skull and frontal hematoma) as well as fractures to his left ankle and wrists. There was no evidence as to what caused him to fall (largely because of his inability to remember as a result of his brain injury).
The tribunal determined the claimant did not meet the causation test because there was no evidence that the fall was caused by him tripping on any part of the trailer or that he made impact with his trailer while falling. The tribunal incorporated a requirement into the definition of “accident” that the claimant make contact with the vehicle. This decision was contrary to numerous earlier decisions of the tribunal (as set out in the Divisional Court’s decision).
In January 2023, the Divisional Court overturned the tribunal’s decision and confirmed there was no requirement in the definition of “accident” that contact with the vehicle be made and, as such, its decision was incorrect and an error of law. The court stated that requiring an evidentiary basis for an element of the interpretation of “accident” not provided for in the definition under the SABS was not in keeping with the remedial nature of this no-fault accident benefits legislation or its consumer protection mandate.
In Kellerman-Bernard v. Unica Insurance Co., [2023] O.J. No. 3467, the tribunal narrowly interpreted “insured person” to prevent a claimant from applying for a catastrophic impairment designation (in order to access more benefits). In August 2023, the Divisional Court overturned the tribunal’s decision and found the tribunal ignored the plain language of the SABS, failed to consider the relevant words in their entire context and ignored the purpose of the SABS.
Oatley Vigmond was counsel for the claimant in Madore.
About the Authors
A born-and-raised Barrie resident, Karen knows and loves her community. She is proud to be a partner in one of Canada’s most successful personal injury law firms—right in her own backyard. Karen joined Oatley Vigmond in 2013 as an associate lawyer. She holds a BA from Queen’s University and her Juris Doctor from Bond University in Australia. Prior to being called to the Bar in January 2013, Karen articled at a well-known personal injury law firm in Toronto.