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Fridays with Rogers Partners

At our weekly meeting, Samuel Pevalin discussed the recent decision of the Divisional Court in Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423.


The Divisional Court ruled that an insured person is eligible to apply for catastrophic impairment (CAT) designation under the Statutory Accidents Benefit Schedule (“SABS”) whether or not they were directly involved in an accident.


On January 26, 2016, the Appellant’s son was involved in a bicycle accident. Although the Appellant did not witness the accident, she sustained psychological and emotional injuries and impairments because her son was significantly injured in the accident.

After the Appellant’s insurance company denied her application for catastrophic impairment designation she brought a claim to the License Appeals Tribunal (LAT). However, the Tribunal decided the Appellant was not entitled to apply for CAT designation because she did not belong to the class of insured persons entitled to seek such a designation.

The Appellant appealed to the Divisional Court.

The LAT ignored the plain language of the SABS

The Divisional Court cited Skunk v. Ketash, 2018 ONCA 450 (“Ketash”) as an authority guiding the Court to first look at the plain meaning of the statute. Ketash held that if the words have a plain meaning and give rise to no ambiguity, then the court should give effect to those words.

The Divisional Court first held the LAT ignored the plain language of the SABS because section 45(1) expressly says that “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.” (Emphasis added)

The LAT consequently misread the plain language of the statute by restricting who can apply for CAT designation under 45(1). The LAT said 45(1) “must be read in in the context of and in conjunction with s. 3(2) which defines catastrophic impairment and requires a two-part test to be met.”

The LAT ruled the Appellant did not meet the test under 3(2), because her injuries were not “caused by the accident.” Therefore, she could not apply as an insured person under 45(1).  

The LAT failed to consider the words “caused by an accident” in their entire relevant context

The Divisional Court cited Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, which enunciates the modern principle of statutory interpretation.

The modern principle of statutory interpretation is that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

In this case, the Divisional Court said the LAT failed to read the requirement under 3(2) of SABS that an impairment be “caused by an accident” in its proper context. The correct context for 3(2) is that this section of the SABS is meant to clarify that the only impairments to be considered in assessing whether the impairments at issue are catastrophic are the impairments caused by the accident. (Emphasis added)

There was no issue the Appellant’s injuries were caused by the accident, even if the Appellant herself was not involved in, or saw, the accident.

Instead, the Court said the main issue was whether they qualified as a “catastrophic impairment.”

The interpretation adopted by the LAT ignores the purpose of the SABS

Lastly, as per Vavilov, the Court considered the purpose of the SABS. The Court turned to the case of Smith v. Co-Operator’s General Insurance Co. 2002 SCC 30 (CanLII), which said that the SABS are remedial and constitute consumer protection legislation and ought to be read, interpreted and applied in such a way.

The case of Tomec v. Economical, 2019 ONCA 882, also said that the definition of catastrophic impairment is “meant to be remedial and inclusive, not restrictive.”

The Divisional Court, therefore, held that restricting access to who can apply for the CAT designation when they are not involved in the accident is contrary to the purpose of the SABS.


The Divisional Court expanded who can apply for CAT designation as a result of an accident. Insured persons do not need to be directly involved in the accident to apply. Rather, sustaining any form of psychological and emotional injuries or impairments because of an accident, regardless of either being involved or witnessing it, qualifies an insured person to apply for CAT designation.