Spring 2016 Q5

jptardif2

Hi Graham,

Regarding the two possible cases for that question, Aviva vs Pastore and Kusnierz vs Economical, why are we not using the same criteria to determine if the insured qualifies for the catastrophic impairement designation? In Aviva vs Pastore we are looking at 4 criterias while in Kusnierz vs Economical we are looking at a %. Are they just in different jurisdication?

Thanks,

graham

That's a good question and I'm not sure I can give you a complete answer. In general, both cases refer to SABS (Statutory Accident Benefits Schedule) in Ontario. This document contains a detailed definition of catastrophic impairment. Here's the link to that section of SABS: (although I don't recommend you spend much time on it as it's beyond the scope of the syllabus.)

• https://ontario.ca/laws/regulation/100034#BK4

Each case is different so the lawyers invoke arguments using whatever sections of SABS they think are most relevant for their injured client. For the Aviva case, the 4 criteria are most relevant, but for Kusinierz it was whether you can "sum" different types of injuries. (The SABS schedule talks about classes of impairment but then in another section mentions a 55% threshold.)

Every accident is different so even if the legal arguments are based on the same statutes, the specifics may look quite different.

Without spending a lot more time thinking about it, that would be my explanation. I don't think it has anything to do with the location of the accident since both were in Ontario.

chrisboersma

g. subject to subsections (2) and (3), an impairment or combination of impairments that, ... results in 55 per cent or more impairment of the whole person; or
f. subject to subsections (2) and (3), an impairment that... results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder

The Pastore case refers to a DAC - which has quassi judicial authority. Which means as long as their decision is "reasonable" it cannot be appealed. So I wouldn't read much beyond the basics that:

The standard of review of the delegate's decision was reasonableness. The delegate did not exceed his jurisdiction when he agreed that physical sources of pain could be considered as due to a mental disorder when applying s. 2(1.1) (g). The delegate's interpretation of s. 2(1.1))(g) as requiring only a single function from the American medical Association's Guides to the Evaluation of Permanent Impairment to be at the marked impairment level in order to qualify as catastrophic impairment was within the range of possible, acceptable interpretations.

Four area of functioning are - for Aviva v. Pastore

• activities of daily living; (class 4 - due to mental disorder)
• social functioning; (class 3)
• concentration, persistence and pace; and (class 3)
• deterioration or decompensation in work or work-like settings. (class 3)

for Economical v Kuznierz

The language of the SABS, the purpose of the American Medical Association's Guides to the Evaluation of Permanent Impairment, the Guides' references to combining physical and psychological impairments, and the goals of the SABS led to the conclusion that the combination of physical and psychological impairments is appropriate under s. 2(1.1)(f). The plaintiff met the definition of catastrophic impairment under s. 2(1.1)(f).

He actually had a mental disorder AND and physical disorder - they were able to combine them under section (f).

https://oatleyvigmond.com/catastrophic-determination-combining-physical-and-psychological/

Subject to the appeal of the Arts decision, the present law is quite clear that psychological impairments can be considered in determining whole person impairment. The only Superior Court of Justice decisions to consider this matter are Desbiens and Arts. They both reached the same conclusion. All of the FSCO decisions on the subject have followed Desbiens.