April 27, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Justice H. A. Rady
Date of Hearing: May 10, 2013
Teresa Chambers was in three separate car accidents in May 2003, June 2003, and in February 2005. She allegedly suffered soft tissue injuries in all three car accidents with resulting headaches and neck pain, and other related injuries. She applied for and received accident benefits after each car accident. After the third car accident she claimed that the cumulative impact of the accidents had caused her to be catastrophically impaired. She seeks to apply once for a finding of catastrophic impairment rather than by separate applications for each accident.
Dominion does not dispute that there may well be a cumulative impact of the three car accidents on Ms. Chambers health, but they requested
“an order that s. 45 of the SABS precludes an insured person from submitting an application for a determination of catastrophic impairment, which lists more than one car accident and purports to claim that the insured is catastrophically impaired, as a result of the cumulative effects of the multiple car accidents.”
Dominion’s position is that pursuant to the Rules of Civil Procedure any application where relief is claimed is dependent upon the interpretation of relevant statutes or regulations. Dominion submits that if the Ms. Chamber’s contention is correct, she would have access to three times the available benefits (three times $1 million for medical rehabilitation benefits etc.) resulting in exposure to potential claims in excess of $6 million. Dominion submits that the language of the statute is singular – referring to an accident rather than multiple car accidents.
On April 18, 2012, Ms. Chambers submitted an OCF 19 – Application for Determination of Catastrophic Impairment listing the “Date of Accident” as May 18, 2003, June 20, 2003 and February 3, 2005. The physician concluded that Ms. Chambers met the definition of catastrophically impaired based on Criteria 7 – a Whole Person Impairment Rating of 55% or more; and Criteria 8 – a Class IV or V Impairment due to mental or behavioural disorder as a result of the cumulative effects of the three car accidents.
In May 2012, Dominion returned the OCF 19 Form requesting separate ones for each accident. The issue is significant to the parties as the determination of catastrophic impairment increases the available policy limits on medical and rehabilitation benefits from $100,000 to $1 million; attendant care benefits from $72,000 to $1 million; and housekeeping benefits are payable for an insured’s lifetime. Lumping three accidents together may also introduce the possibility of benefits being increased to multiples of $1 million depending on the number of underlying accidents said to feed into a cumulative catastrophic impairment. Dominion also argues it is improper to apply a ‘retrospective’ analysis on settled claims.
Justice Rady reviewed the Legislation and definitions within the legislation. He then reviewed the positions of both Dominion and Ms. Chambers.
Dominion stressed the language in the SABS is singular when referring to “an” accident, and on Black’s Law Dictionary. Dominion also relies upon Kirkham v. State Farm Mutual Automobile Insurance Company,  O.J. No. 6459 (Div. Ct.) which observed that “[t]he principle of statutory interpretation is ‘if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense’.” Dominion also relied upon the established fact that the starting point of statutory interpretation is the ordinary meaning rule.
Ms. Chambers relied upon Bank of Montreal v. Gratton,  B.C.J. No. 1887 (B.C.C.A.) which concluded that “the use of the singular throughout the statute can be taken as indicative of legislative intent that the scheme apply to the creation of a single chattel mortgage and the rights and obligations conferred by a single chattel mortgage.” Ms. Chambers also referred to Jack v. Manitoba (Registrar of Motor Vehicles),  M.J. No. 110 for this proposition:
...where the language of the legislature admits of two constructions and if construed in one way, would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention to bring about has been manifested in plain words. If the court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice.
Ms. Chambers highlighted several examples where the SABS use language that contemplates an application for benefits involving more than one accident, and submits that Dominion’s position does not promote the most just, quickest and least expensive resolution of the dispute and that had the Legislature intended to limit an individual’s ability to apply for a catastrophic designation on the basis of a single accident, it would have used clear language to do so.
Justice Rady preferred Dominion’s interpretation that the wording taken as a whole in the SABS must be interpreted to refer to a single accident. Justice Rady concluded that the definition of catastrophic impairment is by reference to a single accident. The OCF-19 also aligns with this single occurrence reference. In Ms. Chamber’s case it was not the first or second accident, but rather the third which may have acted as the catalyst to render her catastrophically impaired.
Justice Rady agreed with Dominion that the Legislature did not intend a plaintiff to have access to increased policy limits for multiple accidents that were not sufficient to end with a catastrophic impairment determination. Allowing plaintiffs to reach back in time would make it nearly impossible for insurers to accurately reserve claims. The scenario of reaching back in time would become even more complicated if multiple insurance companies were involved.
As a result Justice Rady found in Dominion’s favour and ordered that
“Section 45 of the Statutory Accident Benefits Schedule requires an insured person to specify one accident in respect of which a determination of catastrophic impairment is requested. In my view, this is sufficient to address the insurer’s valid concerns without restricting the parties’ ability to make appropriate reference to an injured person’s condition, as a result of previous accidents or otherwise upon which the identified accident was superimposed”