The Lawyers Weekly - December 17, 2010

Catastrophic
Continued From Page 11

and Desbiens was whether the WPI test in subs. 2(1.1)(f) may include psychological elements referred to in subsection 2(1.1) (g), primarily those set out in Chapter 14 of the AMA Guides, 4th edition.

In Desbiens, the court allowed
the combination of the two ele-
ments by concluding that, “…I
find that it is in accordance with
the Guides to assign percentages
to Mr. Desbiens’ psychological
impairments and to combine
them with his physical impair-
ments in determining whether
he meets the definition of catas-
trophic impairment under
clause (f ).”
In Kusnierz, the court comes
to the opposite conclusion and
prevents the combination of the
elements by stating: “These rea-
sons, taken individually and
together, lead to the conclusion
that the mental and behavioural
impairments contemplated by
clause 2(1.1)(g) of the SABS are
not combinable with the impair-
ments to be assessed under
clause 2(1.1)(f ).”
As in Desbiens, the purpose of
the SABS legislation was front
and center in Kusnierz. In his
concluding remarks on the issue
of legislative purpose, Justice
Lauwers mentions that the deter-
mination of purpose in the con-
text of this catastrophic defin-
ition debate must be more
“provision-specific.”
Because Kusnierz was heard
in January (although the decision
was only released Oct. 19), infor-
mation regarding the new Sept. 1
SABS was not before the court.
However, a provision-specific
review of the history leading up
to the new SABS, and the new
SABS itself, leads to the inescap-
able conclusion that the legisla-
tion purposely left the Desbiens
interpretation intact.

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The new SABS make no
changes whatsoever to the word-
ing of the WPI provision, despite
express requests by insurance
industry stakeholders to amend
the definition and overturn the
Desbiens approach. For example,
the submissions by the Co-
Operators to the Financial Ser-
vices Commission of Ontario
(FSCO) in July 2008 on FSCO’s
Five Year Review of Automobile
Insurance stated:
“If it is not the intent to com-
bine physical and psychological
impairments, this may be done
by removing from (f) the words
‘an impairment or combination
of impairments that…’ and
replacing with ‘a physical injury
only that….’ This solves the issue
where using the term “impair-
ment” brings in the definition
found in section 2 which includes
physical, psychological and
physiological impairments.”
In its report on the five year
review of automobile insurance
(dated March 31, 2009), FSCO
noted that, “Insurers support an
amendment to the Regulation
that would restore the concept
that clauses (f) and (g) are not to
be combined.”
However, the report states,
“FSCO is unable to conclude
based on stakeholder feedback
to date, whether it is more
appropriate to combine physical
and psychological injuries or
treat them separately. Further
consultation with experts in this
area is needed.”
If the purpose of the legisla-
tion was being undermined by
the Desbiens approach, then the
legislation could have been
changed in the new SABS, as was
suggested by the insurance indus-
try —but it was not changed.

While Kusnierz is under appeal, catastrophic accident benefit applications relying on WPI ratings are at a complete standstill, much to the detriment of the rehabilitation of these seriously injured accident victims.

However, taking away catastrophic accident benefit entitlement only serves to increase the magnitude of the related tort claims, and these related tort claims will likely be expedited to offset the delay caused by the inability to access the enhanced accident benefits in the interim. 

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Darcy Merkur is a partner at Thomson, Rogers in Toronto practising plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. He has been certified as a specialist in civil litigation by the Law Society of Upper Canada and is the creator of the Personal Injury Damages Calculator.