Volume. 7 Issue. 29 – August 9, 2023
In a February 2022 decision, the Vice Chair provided what turns out to have been a flawed interpretation as to whether an applicant was entitled to seek a CAT determination. Three months later, the Vice Chair doubled down in denying the Applicant’s reconsideration request. As a result, the applicant was obliged to bring the matter before the Court, in order to secure a just verdict.
LAT Update – What Difference Did A Year Make?
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
Court Corrects Multiple Tribunal Errors
Flawed Interpretation Remedied by Court – The Applicant, Kellerman-Bernard, in Kellerman-Bernard v Unica, sustained psychological and emotional injuries and impairments caused by a bicycle accident in which her son was significantly injured. There was no dispute but that she qualified as an “insured person in accordance with s.3(1)(a)(ii) of the Schedule. In a February 2022 release, the Tribunal determined that Kellerman-Bernard however “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.”
This finding was upheld upon reconsideration, and as a result, Kellerman-Bernard appealed to the Court, with said appeal concerning a question of law. The question was one of statutory interpretation, the applicable standard of review being one of correctness.
The Court allowed the appeal, finding that “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 Court found that the Tribunal had denied the application seeking a CAT determination based upon an interpretation of s.3(2) of the Schedule, that reads in part “For the purposes of this Regulation, a catastrophic impairment caused by an accident is…”. The Tribunal focused on the phrase “caused by an accident” in finding that Kellerman-Bernard “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.” In the original decision, the Tribunal opined that “the legislature used the phrase “caused by an accident” purposely and in order to restrict CAT designation to those most seriously injured directly by the use or operation of an automobile, not their more indirectly affected family members.”
The Court determined that the Tribunal had found that not all classes of insured persons could apply for a CAT designation. This was found to be “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.
It was noted that in s.28(2) of the Schedule, regarding entitlement to optional benefits, there is a list denoting the class of “insureds” entitled to apply for same. 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.”
The Court further found that the Tribunal “failed to consider the words “caused by an accident” in their entire relevant context.” 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.” Had the phrase been considered in context, “it would have been clear that its purpose is not to restrict entitlement to apply for benefits 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.)”.
Finally, the Court found that the Tribunal’s interpretation ignores the purpose of the Schedule. The “courts have repeatedly recognized that the SABS are remedial and constitute consumer protection legislation and ought to be read, interpreted and applied in such a way.” In Tomec, the Court of Appeal had confirmed that the “definition of ‘catastrophic impairment’ is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with the most health needs have access to expanded medical and rehabilitation benefits. That definition is meant to be remedial and inclusive, not restrictive” and that the goal of the SABS “is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial”.
However, the interpretation adopted by the Tribunal, “instead of being remedial and inclusive, the interpretation adopted by the LAT is restrictive. Instead of fostering fairness for people with the most health needs, it increases their suffering and economic hardship.” Therefore, “the appeal is allowed, the decision and reconsideration decision of the LAT are set aside, and the Appellant is found to be eligible to make a claim for a catastrophic impairment designation. Since the result is inevitable, it would only cause delay and create injustice to send this matter back to the LAT for further reconsideration.” As agreed, Kellerman-Bernard was entitled to costs fixed in the amount of $5000, all inclusive.
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