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 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?

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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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Archive of LAT Updates

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

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