Canada: Can An Individual Not Directly Involved In An Accident Meet The Criteria For Catastrophic Impairment?

Introduction

In Kellerman-Bernard v Unica Insurance Inc., 2022 CanLII 6755 (ONLAT), the LAT was faced with deciding whether an individual who was not directly involved in an accident can meet the criteria for Catastrophic impairment (CAT) as defined by O. Reg. 34.10: Statutory Accident Benefits Schedule - Effective September 1, 2010 (SABS).

Facts

On January 26, 2016, the Applicant Naomi Kellerman-Bernard's child was involved in a motor vehicle collision. The Applicant was not present at the time and did not witness the accident. However, the Applicant claimed that she suffered psychological and mental injuries as a result of her child's accident. As a result, the Applicant sought benefits under the SABS and submitted a CAT application for CAT determination. The Respondent, Unica Insurance Inc., denied the application for CAT on the basis that the Applicant was not directly involved in the accident. Therefore, the issue before the LAT was whether the Applicant, who was not directly involved in the accident, could meet the criteria for CAT under the SABS.

The Parties Positions

The Respondent submitted that the Applicant is an insured person under the policy and therefore entitled to claim accident benefits. However, the Respondent argued that the Applicant was not involved in the accident, thus her injuries were not "caused by an accident" as defined in the SABS. Therefore, the Respondent argued that the Applicant is not entitled to apply for CAT determination as she does not meet the criteria for CAT.

The Applicant argued that there is no difference between injures being "caused by an accident" or injuries being caused "as a result of an accident". Further, the Applicant also argued that the SABS does not require an insured person to have been directly involved in an accident to apply for CAT designation.

The LAT's Analysis

The Adjudicator, Vice Chair Avril Farlam, agreed that the Applicant is an insured person under the SABS and that the dispute is whether the Applicant meets the criteria for CAT designation.

The Adjudicator noted that under Section 3(2) of the SABS, CAT designation requires that a two part test be met. First, an Applicant must establish that their injuries are "caused by an accident". Second, the Applicant must establish that their injuries fit within at least one of the six categories of physical, brain, mental or behavioural impairments listed in Section 3(2) of the SABS.

To determine whether the Applicant meets the two-part test for CAT designation, the Adjudicator found it necessary to interpret the meaning of Section 3(2) and the phrase "caused by an accident". To interpret Section 3(2), the Adjudicator applied the modern approach to statutory interpretation, which involves looking at the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found.

The Adjudicator first looked at the language of the provision. The Adjudicator found that the phrase "caused by an accident" is clear and unambiguous. Next, the Adjudicator considered the context in which the phrase "caused by an accident" is used. In doing so, the Adjudicator considered the meaning of the word "accident" and noted that it is defined as an incident in which the "use or operation of an automobile directly causes an impairment". Further, the Adjudicator noted that if it can be established that the use or operation of an automobile was the cause of the injuries, then the Applicant must establish that there were no intervening acts. With this in mind, the Adjudicator noted that the question at hand is whether it can be said that the use or operation of the automobile was a "direct cause" of Applicant's the injuries.

The Adjudicator looked at what constitutes direct causation. The Adjudicator noted that direct causation requires a determination of the "dominant factor that physically caused the Applicant's injuries". The Adjudicator found that, at a minimum, some direct physical connection is required between the injuries and an automobile for the injuries to have resulted from an accident. Thus, if no direct physical connection exists, then the injuries cannot be said to have been caused by an accident. As a result, the Adjudicator found that, in this case, the Applicant's injuries were not directly caused by an automobile because the Applicant did not directly witness the accident.

Finally, the Adjudicator considered the intent of the legislature. The Adjudicator found that the legislature purposely used the phrase "caused by an accident" as opposed to "as a result of an accident" to restrict access to the highest level of accident benefits available to insured persons who suffer a catastrophic level of injury directly caused by an automobile. Therefore, the Adjudicator explained that its finding that the Applicant's injuries were not directly caused by the accident because they did not directly witness the accident is consistent with the intent of the legislature.

Ultimately, the Court found that because the Applicant did not witness the accident and was not directly involved in the accident, she does not meet the criteria for CAT designation under Section 3(2) of the SABS.

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