In Kellerman-Bernard v. Unica, the Ontario Divisional Court held that a parent who suffered psychological injuries as a result of her son’s bicycle collision was entitled to apply for catastrophic designation under the Statutory Accident Benefits Schedule (“SABS”).
Ms. Kellerman-Bernard’s son was significantly injured in a bicycle collision involving a motor vehicle. Ms. Kellerman-Bernard did not witness the collision. She was not at the scene. She, however, suffered psychological injuries because of that collision – and presumably how that collision impacted her son and her life. She applied for catastrophic determination. The parties agreed that she was an insured person within the meaning of the SABS. In fact, she was a named insured in the auto policy under which she was seeking accident benefits. However, her application was denied by her auto insurer, Unica. Unica determined that she was not entitled to make the application because her impairments were not directly caused by the collision.
The dispute was argued before the Licence Appeal Tribunal (“LAT”). The LAT held in favour of Unica. Ms. Kellerman-Bernad moved for reconsideration. The same adjudicator who presided over the initial hearing also heard the reconsideration application and upheld her decision in favour of Unica. Ms. Kellerman-Bernard appealed to Divisional Court. Her appeal was on a question of law alone and so the standard of review was correctness. The sole issue was whether the LAT reached the correct decision.
The relevant subsections of the SABS were s. 3(2), s. 45(1) and the definitions of “accident” and “insured” under s. 3(1).
Subsection 3(2) defines “catastrophic impairment”. It states, a “catastrophic impairment caused by an accident is” and then lists the impairments that are deemed to be catastrophic in nature (e.g. paraplegia or quadriplegia, total loss of vision in both eyes, a marked impairment or extreme impairment due to a mental or behavioural disorder, etc.).
“Accident” is defined in s. 3(1) as “an incident in which the use or operation of an automobile directly causes an impairment…”
However, subsection 3(2) and the definition of “accident” interplay with s. 45(1) and the definition of “insured”.
Subsection 45(1) sets out when an “insured person” has a right to seek catastrophic impairment. It states:
An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.
“Insured” person is defined in s. 3(1) and includes (i) a named insured who is involved in an accident that involves the insured automobile or another automobile and (ii) a named insured who is not involved in an accident but suffers a psychological or mental injury as a result of an accidentin or outside Ontario that results in a physical injury to his or her child, grandchild, parent, grandparent, spouse, brother, sister, dependent or spouse’s dependent.
The parties agreed that Ms. Kellerman-Bernard was a named insured. However, the Divisional Court specifically noted that the definition of an “insured person” includes named policyholders who are not actually involved in an accident.
Further, the Divisional Court specifically found that that Ms. Kellerman-Bernard was the type of insured person who was not actually involved in the collision. She was the named policyholder and clearly she suffered a psychological injury because of a collision that caused a physical injury to her son (i.e. her child).
The Court then looked to s. 45(1) of the SABS. That subsection specifically permits insured persons who suffer an impairment as a result of the accident to apply for catastrophic determination. There is nothing in s. 45 which limits that entitlement. In fact, when the legislature wants to provide accident benefits to only certain exclusive individuals, it does so by explicit language. For example, under subsection 28(2), the legislature specifically lists the individuals who are entitled to apply for optional benefits under the SABS. There is no such exclusive list in s. 45.
As for whether Ms. Kellerman-Bernard’s psychological injuries were “caused by an accident” (i.e. whether they had to be directly caused by the use and operation of an automobile), the Divisional Court held that this language simply requires the psychological impairment to be caused by the collision in question as opposed to some other cause. Again, it was clear that Ms. Kellerman-Bernard suffered psychological injuries because of the collision.
Accordingly, Ms. Kellerman-Bernard was entitled to make an application for catastrophic determination.
Commentary
This is a very well-articulated and exceedingly well reasoned decision by the Divisional Court. It is clear from the definition of “insured person” that statutory accident benefits are intended to be available to named policyholders with psychological injuries causally connected to a collision – so long as the collision involved the use and operation of an automobile which directly caused a physical injury to the policyholder’s child, spouse, sibling, grandchild, grandparent, dependent, etc. It is equally clear that the SABS permits all insured persons to apply for catastrophic designation.
