) ) NAOMI KELLERMAN-BERNARD Appellant – v. –, 2023 ONSC 4423

CITATION : Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423 DIVISIONAL COURT FILE NO.: 134/22 DATE: 2023/08/02 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, Coats and Leiper JJ. BETWEEN: ) ) NAOMI KELLERMAN-BERNARD Appellant – and – UNICA INSURANCE COMPANY Respondent ) ) ) ) ) ) ) ) ) Stan Razenberg and H. Jack Parsekhian , for the Appellant Jonathan Heeney , for the Respondent ) ) HEARD at Toronto by videoconference: June 27, 2021 H. Sachs J.

Overview [ 1 ] The Appellant sustained psychological and emotional injuries and impairments caused by a bicycle accident in which her son was significantly injured. While the Appellant was not herself involved in the accident, there is no issue that she is an “insured person” within the meaning of the Statutory Accident Benefits

Schedule O. Reg. 34/10 (“ SABS ”). [ 2 ] The Appellant applied to the Respondent for a catastrophic impairment designation. Her claim was denied and the matter proceeded to the License Appeals Tribunal (“LAT” or “Tribunal”). On February 3, 2022 the LAT decided that the Appellant was not entitled to apply for a CAT designation as she did not belong to the class of insured persons that was entitled to seek such a designation.

The Appellant requested that the LAT reconsider its original decision and on May 22, 2022, the LAT denied her request for reconsideration. [ 3 ] This is an appeal as of right from both the LAT decisions. The appeal concerns a question of law alone. The question is one of statutory

interpretation. As such, the applicable standard of review is correctness. [ 4 ] For the reasons that follow I would allow the appeal. In

summary, the

interpretation adopted by the LAT ignores the plain and ordinary meaning of the legislation in question, focuses on one phrase in that legislation without considering the phrase in its full context and defeats rather than promotes the accepted purpose of the SABS .

THE RELEVANT STATUTORY FRAMEWORK [ 5 ] This appeal involves the interplay between three provisions in the SABS - s. 3 (1) , which defines who is an “insured person”; s. 45(1) , which provides that an “insured person” is entitled to apply for a catastrophic impairment designation and s. 3(2) which sets out the criteria necessary to qualify for such a designation. The full text of these provisions is set out below. Section 3(1) [ 6 ] The relevant portions of section 3(1) provide as follows: “insured person” means, in respect of a particular motor vehicle liability policy, (

a) The named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of a named insured or of his or her spouse.

(

i) If the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or (ii) If the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant [ 7 ] Section 3(1) sets out two classes of people who are named in the policy who qualify as “insured persons” – named insureds who are actually involved in the accident and 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 Appellant falls within the second class of “insured persons”. She is named in the policy. She was not directly involved in the accident, but she suffered psychological or mental injury as a result of the fact that her son was directly involved in the accident. [ 8 ] In Ayr Farmers Mutual Insurance Company v.

Wright, 2016 ONCA 789 at para. 25 , the Court of Appeal states: It is well established that the definition of insured person in the [ SABS ] governs the entitlement to SABS . [ 9 ] As previously noted, it is not contested that the Appellant is an “insured person” Section 45(1) [ 10 ] Section 45(1) confers upon an insured person the right to seek a catastrophic impairment 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. [ 11 ] Pursuant to this

section the Appellant, an insured person, applied to the Respondent for a determination as to whether her impairment was a catastrophic impairment. The Respondent denied her application on the basis that she did not fall within the class of insured persons that was entitled to apply for a CAT designation. The LAT agreed with the Respondent. It did so on the basis of its

interpretation of s. 3(2) of the SABS . Section 3(2) [ 12 ] Section 3(2) of the SABS provides:

(2) For the purposes of this Regulation, a catastrophic impairment caused by an accident is: (

a) paraplegia or quadriplegia; (

b) the amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg; (

c) the total loss of vision in both eyes; (

d) Subject to subsection (4), brain impairment that results in, (

i) a score of 9 or less on the Glasgow Coma Scale… (ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale…. (

e) Subject to subsections (4),(5) and (6) an impairment or combination of impairments that, in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment…results in 55 per cent or more impairment of the whole person, or

(

f) Subject to subsections (4), (5) and (6), an impairment that , in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment…results in a [marked impairment, extreme impairment] due to mental or behavioural disorder. [ 13 ] The LAT in its decisions focused on the phrase “caused by an accident” in s. 3(2) and found that the Appellant 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 an accident.

Thus, the LAT found that the class of insured persons to which the Appellant belongs, namely people who are not themselves involved in the accident but who suffer psychological or mental injuries as a result of an accident that resulted in injury to their family member, are not entitled to seek a CAT designation. The Errors of Law Committed by the LAT The LAT ignored the plain language of the SABS [ 14 ] In Skunk v. Ketash , 2018 ONCA 450 , the Court of Appeal states as follows: [8] The principles of statutory

interpretation require the court first to look to the plain meaning of the statute. If the words have a plain meaning and give rise to no ambiguity, then the court should give effect to those words. [ 15 ] The LAT found that not all classes of insured persons could apply for a CAT designation. This is contrary to the express language of s. 45(1), which states that “an insured person” may apply for a CAT designation. It puts no restriction on who can apply for such a designation. [ 16 ] This is to be contrasted with another provision of SABS – the

section dealing with entitlement to optional benefits. Section 28(2) of the SABS states:

(2) The optional benefits referred to in subsection (1) are applicable only to, (

a) the named insured; (

b) the spouse of the named insured; (

c) the dependants of the named insured and of the named insured’s spouse, and (

c) the persons specified in the policy as drivers of the insured automobile. [ 17 ] Thus, in section 28(2) , the legislature has specified through a list who is which class of entitled to apply for optional benefits. This demonstrates that when the legislature wishes to restrict benefits to only certain people it does so through explicit language. Section 45(1) contains no such list. Anyone who is an “insured person” is entitled to apply for a catastrophic impairment designation. [ 18 ] The decision of the LAT also ignores the plain meaning of s. 3(2).

Section 3(2) contains no language that speaks to the insured person’s entitlement to apply for a catastrophic impairment designation. Rather, it sets out the functional and medical criteria to be used in assessing whether the impairment at issue can be considered “catastrophic.” [ 19 ] In effect, the LAT interpreted s. 3(2) so as to restrict the application of s. 45(1). There is nothing in the express language of s. 3(2) that supports such an

interpretation. The LAT failed to consider the words “caused by an accident” in their entire relevant context [ 20 ] In Canada (Minister of Citizenship and Immigration) v. Vavilocv , 2019 SCC 65 , the Supreme Court reiterated that the proper approach to statutory

interpretation requires reading the language chosen by the legislature in its entire relevant context (para. 117). [ 21 ] The LAT failed to do this. Instead, it took the phrase “caused by an accident” in s. 3(2) out of context and then asked itself whether the Appellant’s impairment was caused by an accident within the meaning of caselaw that has no application to the case at bar. The case law that the LAT examined deals with entitlement to benefits by people who were not clearly “insured persons” within the meaning of the legislation.

The Appellant is an insured person and, as such, according to the express language of s. 45(1), her entitlement to apply for a catastrophic impairment designation is clear.

[22] If the phrase had been considered in context, it would have been clear that its purpose is not restrict entitlement to apply forbenefits under s. 45(1), but to clarify that the only impairments to be considered in assessing whether the impairments at issue are“catastrophic” are the impairments that were caused by the accident (as opposed to other causes.) There is no issue that the Appellantsuffered a psychological or emotional injury as a result of the accident. The only issue is whether that injury qualifies as a “catastrophicimpairment.” The

interpretation adopted by the LAT ignores the purpose of the SABS [23] In Vavilov, supra at para. 117, the Supreme Court reiterates that the words of a statute are to be read “ in their entire contextand in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament.” [24] The courts have repeatedly recognized that the SABS are remedial and constitute consumer protection legislation and ought tobe read, interpreted and applied in such a way. This was confirmed by the Supreme Court of Canada in Smith v.

Co-Operator’s GeneralInsurance Co. 2002 SCC 30 , [2002] 2 S.C.R. 129 at para. 11. [25] In Tomec v. Economical, 2019 ONCA 882 the Ontario Court of Appeal confirmed that “[the] legislature’s definition of‘catastrophic impairment’ is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with themost health needs have access to expanded medical and rehabilitation benefits.

That definition is meant to be remedial and inclusive, notrestrictive” and that the goal of the SABS “is to reduce the economic dislocation and hardship of motor vehicle accident victims and assuch, assumes an importance which is both pressing and substantial” (see para. 42). [26] Instead of being remedial and inclusive, the

interpretation adopted by the LAT is restrictive. Instead of fostering fairness forpeople with the most health needs, it increases their suffering and economic hardship. Conclusion [27] For these reasons, the appeal is allowed, the decision and reconsideration decision of the LAT are set aside, and the Appellantis found to be eligible to make a claim for a catastrophic impairment designation.

Since the result is inevitable, it would only cause delayand create injustice to send this matter back to the LAT for further reconsideration. [28] Pursuant to the agreement of the parties, the Appellant is entitled to her costs fixed in the amount of $5000, all inclusive. _______________________________ Sachs J. I agree _______________________________ Coats J. I agree _______________________________ Leiper J. Released: August 2, 2023 CITATION: Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423 DIVISIONAL COURT FILE NO.: 134/22 DATE: 2023/08/02

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, Coats and Leiper JJ. BETWEEN: NAOMI KELLERMAN-BERNARD Appellant – and – UNICA INSURANCE COMPANY Respondent REASONS FOR JUDGMENT SACHS J. Released: August 2, 2023