Monthly Archives: March 2013

Pastore v Aviva Canada Inc. (2012) – Catastrophic Impairment

Legal Expertise

Pastore v Aviva Canada Inc (2012) is the latest in a trilogy of cases by the Ontario Court of Appeal relating to the important definition of catastrophic impairment. The court ruled that only one marked or extreme functional impairment due to a mental or behavioral disorder is necessary to qualify accident victims for enhanced catastrophic impairment benefits. While personal injury lawyers and those affected both mentally and physically by their injuries applauded the decision, insurers have perceived it as an overall loss in their attempt to raise the ‘catastrophic impairment’ threshold.

Facts

The appellant Ana Pastore (Pastore), was hit by a car while crossing the street in 2002. Her injury was a fractured left ankle that gave rise to complications and surgeries over the span of five years due to not healing properly. In addition to the ankle surgeries, her knee had to be replaced when ankle pain led to a change in her gait. The injury to her ankle had a great impact on Pastore’s life. Prior to the accident, Pastore was described as an active and self-sufficient matriarch, who was the primary caregiver to her husband of 38 years who was undergoing chemo-dialysis at the time. The accident significantly reduced her mobility, and she was no longer able to do housekeeping or participate in recreational activities. She became almost completely dependent on others for her basic personal care needs. In May 2005, Pastore filed an application with her insurer Aviva Canada Inc. (Aviva) to have her injuries designated as causing a “catastrophic impairment”, which allowed her to qualify for significantly enhanced Statutory Benefits Act Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 (SABS) benefits.

Pastore was assessed for catastrophic impairment at a Designated Assessment Centre (DAC) by a team that included a physiatrist, a psychologist, a psychiatrist, and an occupational therapist. The assessment by the DAC was carried out by reference to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (the Guides) that set out a three-stage test for evaluation of catastrophic impairment based on mental disorder using four categories of functional limitation and five levels of dysfunction. The first stage is a diagnosis of any mental disorders, followed by a second stage where the impact on daily life is identified. The final stage assesses the extent of the limitations by looking at four categories and determining their levels of impairment. Proving most relevant in this case was the court’s focus on limitations regarding activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensating in work or work-like settings.

The four categories are then each assessed based on the following levels of impairment: Class 1 – no impairment; Class 2: mild impairment which is to say that “any discerned impairment is compatible with most useful functioning”; Class 3: moderate impairment, which “means that the identified impairments are compatible with some, but not all useful functioning”; Class 4: market impairment, which is “level of impairment that significantly impedes useful functioning”; lastly Class 5: extreme impairment, which “preclude(s) useful functioning”. Relying the required five-level scale, the DAC came to the conclusion that Pastore had a catastrophic impairment consisting of a marked impairment in her daily activities due to mental or behavioral disorder under s.2(1.1)(g) (currently section s.3(2)(f)). With relation to the other three points, she qualified as having only moderate impairment in that she had some, but not all, useful functioning. However, as later contested by Aviva, the DAC found that one marked impairment was enough to qualify Pastore as having suffered a catastrophic impairment.

Findings

Disagreeing with the DAC findings, the parties engaged in an arbitration process under s.282 of the Insurance Act. Aviva put forward two issues to the Financial Services Commission of Ontario (FSCO) delegate: (i) does the then s.2(1.1) (g) of SABS require an overall assessment of marked impairment in all four categories of functional limitation in the Guides, or can marked impairment in one category result in a finding of catastrophic impairment; and (ii) was it an error for the DAC assessors to include physical pain in the assessment of mental disorder in order to comply with the American Medical Association’s Guides to the Evaluation of Permanent Impairment?

The FSCO delegate’s decision that was overturned by Ontario Divisional Court and then reinstated by the Court of Appeal was found to be reasonable given the facts. With regards to the first issue, her conclusion that the word “a” in s.2(1.1)(g) of the SABS could be interpreted in its ordinary meaning as per Oxford Dictionary. This meant that the section required only a single function from the Guides to be at the marked impairment (class 4) level in order to qualify as catastrophic impairment, a decision the Court of Appeal agreed was certainly within the range of possible, acceptable interpretations of the statute.

This finding was contrary to Aviva’s argument that DAC guidelines required overall class 4 impairment for claimant to qualify as catastrophically impaired. The Court of Appeal did admit to the Guides being fairly ambiguous in terms of how many functions need to be impaired in order to be seen as catastrophic but chose to show deference to the delegate in her interpretation of the agency’s governing statute. On the second point, Aviva contended that the daily pain Pastore experienced was a result of the physical injuries to her ankle and knee and as such should not be included as “due to” her mental disorder. The delegate reviewed evidence from doctors found Pastore had Adjustment Disorder with Depressed Mood and was indeed a significant factor in her chronic pain issues. Once again, the delegate referred to the Oxford Dictionary meaning of “due to” which included “because of, owing to” to form her interpretation, one falling within the reasonable range according to the Court of Appeal. Pastore’s final mental disorder diagnosis was “Pain Disorder Associated with Psychological Factors and General Medical Condition”. Since the mental disorder did involve pain along with pain associated with general medical condition, it was surely reasonable to include pain from the general medical condition to the extent that such pain was connected with a diagnosed mental disorder

Analysis

As Brian Cameron, Intervener and Counsel for the Ontario Lawyers Association had stated, the decision “should not have taken five hearings over several years to determine that ‘a’ means one” as the FSCO arbitrator had so clearly reasoned. It is hard to imagine on any reasonable interpretation of the word “a” that it could mean overall or more than one. The Pastore decision is illustrative of the extent that insurance companies are willing to go through in order to prevent access to the accident benefits system that were designed for people who require health care needs in order to regain some stability in their lives. To suggest that impairment in one aspect of a victims life is not enough for a successful application is troubling. For example, a person with marked impairment within the Guides definition of daily activities is one whose behavioral impairments significantly impede most useful functioning such as cleaning, shopping, cooking, riding the bus, grooming, paying bills or using the telephone to name a few.

If Aviva’s argument had succeeded this would mean that not only must a person face significant impediment with routine activities noted above, but they must also face impediment in social functioning, concentration, persistence and pace or decompensating in work or work-like setting. This means that a person must not only be unable to ride the bus or use the phone, but they must also experience other impediments within the class 4 to 5 designations in order to have a successful application. It is difficult to conceive of a word other than ‘catastrophic’ to describe impediments that limit a person’s ability to do things that people perform on a daily basis without thought – to demand impediments of all aspects of life would be beyond all reason. As such, the Pastore case can prove to be a powerful tool when it comes to standing up to insurance companies and receiving benefits for physical and mental impairments arising from injury. If you feel that you are not receiving the benefits, let the experts at Edson Legal provide you with the help that you deserve.

How Serious is Your Motor Vehicle Accident?

Accidents

The effects of motor vehicle accident injuries range in a wide variety and can impact lives in many different ways. Sustained injuries can impair an individual’s ability to work, enjoy life or even perform basic day-to-day functions. The big question here, and one which is most concerning to courts and insurance companies is whether or not the injury suffered by the claimant is serious enough to meet the “threshold” as specified by the amended s.267.5(5) of the Insurance Act.

There has been much said about the implementation of Bill 198 in 2003 and the Ontario government’s mandate to ‘tighten up’ on the definitions of ‘serious and permanent’ injury. At its inception, Bill 198 was speculated to bring in an objective standard to threshold analysis, but as seen in the cases that followed, the court’s interpretation has remained very much a subjective one in line with previous authority. In this week’s blog entry we explore what constitutes a ‘serious impairment’ for victims of motor vehicle accidents and how it affects their ability to make a successful tort claim. “Threshold” and Bill 198 With the political issue of sky-rocketing premiums in the 1990s for motor vehicle insurance, Ontario Legislature has adopted a series of amendments of the Insurance Act to try and reduce the large amount of costly whiplash claims. The intention was to restrict tort claims by weeding out the smaller ones. The denial of compensation in tort accident victims with smaller claims was to be balanced with more generous first party benefits payable without fault. Those amendments gave birth in Ontario to what came to be known as the “no-fault motor vehicle insurance”. Bill 59, which applied to all accidents after November 1, 1996, amended that section to provide that an owner of an automobile is not liable in an action for damages for non-pecuniary loss unless the claimant had sustained “permanent, serious impairment of an important physical, mental or psychological function”.

Despite the anticipation of a much stricter regime by many, much of the Bill 59 amendments have been carried on into Bill 198 which applies to all accidents that have occurred since October 1, 2003. Those amendments did not change the language of the threshold of entitlement to recover non-pecuniary general damages. Rather, Bill 198 demanded a higher evidentiary burden as to whether or not a permanent injury did indeed occur. In order to do so, the Bill went into greater detail than its predecessor by defining which impairments are serious, what functions are important and the meaning of permanent. Thus, if one is to meet the threshold, the following must be demonstrated:

  1. The impairment must substantially interfere with usual activities of daily living, considering the person’s age.
  2. To be an important function, the function must be important to the usual activities of daily living, considering the persons age.
  3. For the impairment to be permanent, it must have been continuous since the incident, and must, based on the medical evidence, be expected not to substantially improve as well as continue to meet the criteria in paragraph 1, and the nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Ontario Court’s Interpretation of the Bill 198 Threshold Despite the amendments, the Court of Appeal case of Meyer v Bright (1993) (a Bill 59 ruling) still remains the lens by which courts gauge the threshold. It can be argued that Bill 198 was little more than a codification of the factors regarding permanency, impairment and its serious effect on bodily function expressed in Meyer. The changes that did occur came in the form of more framed definitions of the terms and prescription of the evidence required to meet the threshold. The investigation now required that an injured person prove to the court that the impairment complained of substantially interferes with his or her ability to continue with their former employment or training despite reasonable attempts at accommodation and that the impairment has been continuous since the accident. The Plaintiff is also required to convince the court that based on medical evidence, the impairment is expected to continue despite reasonable treatment, and that such an impairment would be expected for others in “similar circumstances.” It has been argued that this last part of the test introduces an objective component not present in Meyer, however, review of some of the Bill’s jurisprudence suggests that the Courts have been reluctant to import an objective analysis in considering this issue (see cases below). In terms of “importance” of the impairment to the individual, the Court of Appeal in Meyer directed that the term must be considered in the context of the Plaintiff as a whole.

For the impairment to be “important” it must play a major role in the health and well-being of that person. Bill 198 amendments added a functional component to the analysis and mandated that in order to satisfy the “important” requirement the Plaintiff must suffer an impairment of a function which is necessary for the Plaintiff in order to allow him or her to perform the “essential” tasks of regular employment, training, care or well being or important to the usual activities of daily life. With regards to “seriousness” the Ontario Court of Appeal held that the question to be considered is whether the impairment is serious to the person in issue, taking into account his or her unique characteristics and held that as a general proposition. Thus, a serious impairment is one that causes substantial interference with the ability of the injured person to perform his or her usual daily activities or continue employment. Determining the seriousness of an injury is a subjective exercise to which the authority in Meyer still remains instrumental. In Meyer, the court made an illustration through a hypothetical example of two violinists who have lost their small left finger.

The first, an amateur violinist who plays for his own amusement, might not have his life seriously impaired, nor will the quality of his performance seriously suffer. On the other hand, for a highly skilled professional concert violinist, the impairment may detrimentally affect performance to such a degree that the person can no longer attain the level of competence necessary to the continuance of a professional career. In such cases, the court may find the impairment to be a serious one. Yet again if the impairment was sustained by the same person but only after he or she had retired and decided not to play the violin anymore, a court may consider the impairment not to be a serious one. Thus, what makes an injury serious is as unique as the victims of motor vehicle accidents. For further illustration we turn to some recent cases of injuries sustained after October 1, 2003. Guerrero v Fakuda (2008) Guerrero was the first case since the implementation of Bill 198 that successfully crossed the threshold. Here the plaintiff had suffered whiplash injuries which left her with pain in her upper and lower back. Her whiplash injury had persisted after the accident, consistent throughout the hearings. Consequently, she was unable to work full-time. In his decision, Justice Little wrote that ‘pain and its degree of severity are subjective and can exist without any objective finding – calling an expert to say that no objective finding equals no point is no longer acceptable…that same expert will often treat the pain that exists even though it is without objective finding’.

The Plaintiff was only able to perform part-time work and suffered lifestyle restrictions, which detrimentally altered her ability to work and her enjoyment of life, and as such met the threshold. Sherman v Guckelsberger (2008) Plaintiff sustained soft tissue injuries, and complained of headaches, and neck pain, as well as numbness and tingling in the little and ring fingers of her right hand. She worked as an office administrator for a family physician, working eight hours per day. Within weeks of the accident, she returned to work on a part-time basis, followed by full-time soon after. After two years of full-time work the plaintiff had reduced her hours of work, still feeling the effects of her injuries. However, she still remained active outside of work, regularly going to the gym and enjoyed camping. Justice Milanetti, taking in the full context of the effects of the injuries on the Plaintiff’s life determined that the ongoing pain and discomfort was not sufficient to get her over the threshold, given that the “increasing specificity of the no fault legislation”. Sabourin v Dominion of Canada General Insurance Company (2009) In Sabourin another case of whiplash injury, soft tissue damage was caused and limited the range of motion in the plaintiff’s neck and shoulders.

The Plaintiff claimed that she had difficulty taking care of herself and maintaining hygiene, communication in terms of speaking, reading or writing and physical activities such as standing, sitting, walking, driving/riding in a vehicle. The court examined injuries from two points of view. First by asking the question whether or not the plaintiff was able to prove on the balance of probabilities as per s.4.2(1)1(iii) of Bill 198 that she was experiencing pain that substantially interfered with most of her activities of daily living. Second, was the impact of the pain and discomfort significantly reducing her quality of life? With regards to the former, the plaintiff failed to satisfy the court that most of her life was hindered by the injuries, but was successful in earning $40,000 in general damages with respect to the latter. Conclusion While Bill 198 has specified some additional evidentiary hurdles when it comes to assessing the injury threshold, the current and past case law maintains a subjective approach. Furthermore, unless there is a decision that goes past the appellate level, Meyer will likely continue to hold weight in court’s interpretation of facts. The type of injury, current physical capacity, work status, age and lifestyle can all factor in when embarking on a tort claim. If you are unsure whether or not your injuries meet the threshold, consult our motor vehicle injury experts at Edson Legal.

Knowing Who To Make A Slip and Fall Injury Claim Against

Accidents, Legal Expertise

With three major snowstorms already ­this winter and perhaps even more to come, Torontonians know all too well the kind of hazards that melting snow and dropping temperatures can bring. A night out at the restaurant, or a walk to the grocery store can lead to a slip and fall incident and unforeseen lasting injuries. However, knowing who to make a claim against for your injuries is not always an obvious exercise and requires a thorough analysis of the current statutory provisions and common law precedents. Depending on where one sustains their injury, there exist various thresholds of liability that we must consider if a claim is to be successful. In this blog entry, we explore the facts and law as to when a duty of care can arise within the context of private property owners, municipal property, or mixed public and private spaces. Liability of Private Property Owners According to section 3(1) of the Occupiers Liability Act “an occupier of premises owes duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises“. This view was reinforced in Waldick v Malcom [1991] when the Supreme Court of Canada expressed that the clear intention of the Act was to “replace, refine and harmonize the common law duty of care owed by occupiers to visitors on those premises”. The court went on to say that the occupier had to make the premises reasonably safe, even if the plaintiff had knowledge of the hazard and its potential dangers. But what exactly entails ‘reasonably safe’ precautions? While circumstances often vary from case to case, Ontario courts have opted for the objective standard with the phrase “system of maintenance” to interpret the facts. In Fragomeni v 108048 Ontario Corp [2006], an elderly man slipped and fell in the parking lot of a funeral home after attending a funeral. The snow from the morning along with the cold conditions created a hazard on the funeral home’s property. While the funeral home contracted its snow removal, the court was quick to find that in spite of their intentions, there was no clear procedure in place between the funeral home and the snow removal company to determine who was responsible for deciding to salt the parking lot. Fragomeni tells us that there must be a ‘system of maintenance’ present if the occupier is to avoid liability, however as Flentje v Nichols [2006] goes on to show us, the mere presence of a system is not enough. In Flentje, a 24-year-old woman slipped and fell in the restaurant parking lot of the defendant’s premises, suffering a broken leg that required two surgeries. The parking lot was snow-covered and slippery at the time of the accident and as the plaintiff alleged, the restaurant was found negligent in their failure to implement a reasonable system of snow and ice removal to ensure reasonably safe premises. The Court allowed the plaintiff’s action, and eventually came to the decision that while the restaurant owner had normally been diligent and conscientious in maintaining the parking lot on his own, his system of maintenance was haphazard and not reasonable for a commercial establishment at the time of the plaintiff’s accident. The Court went on to add that even if the restaurant owner had a reasonable maintenance system in place at the time of the slip and fall, it was not functioning appropriately on the evening of the plaintiff’s accident. The issue of reasonable safety with regards to private property owners tells us that in order for liability to occur, there must first be a ‘system of maintenance’ and second, it has to have been working at the time of the accident. Contacting your Toronto slip and fall lawyer will give you further insight into whether or not you may have a successful claim with regards to this. However, sometimes the failure of a system of maintenance does not necessarily help us determine who stands to be liable. Walkways, storefronts, access points from public to private property often muddy the lines between municipal and private property. Liability for Mixed Private Property and Municipal Sidewalks Bongiardina v York (Regional Municipality) [2000] is the leading case on the issue of the duty of care of owners of private property for slip and fall accidents taking place on adjacent municipal sidewalks. In this case, the Ontario Court of Appeal determined that there is normally no duty of care on a private property owner for a slip and fall accident taking place on adjacent municipal property. Even if, as were the facts of this case, there is a by-law placing an onus on the home owner to clear the path, no breach of duty can be found and will amount to little more than a fine. However, there are two major exceptions found in section 1 of Occupiers Liability Act and in the common law tort of nuisance. The Occupiers Liability Act section 1 stipulates that a party will be found to be an occupier where the person has “physical possession of the premises”; “responsibility for and control over the condition of the premises”; “responsibility for control over the activities carried on in the premises”; or “control over persons allowed to enter the premises”. This means, that in order to be identified as an occupier of municipal property, one must go out of their way to exercise control over the sidewalk in question (typically retail storefronts) or must assume exclusive (or near exclusive control) over the people entering on or off the sidewalk (clubs, bars, sport arenas). First, the case of Bogoroch v Toronto (City) (1991) is a classic example of how private property owner may be deemed to have physical possession of neighboring municipal property so as to make themselves an occupier for the purposes of the statute. The facts of the case describe a retailer that had readily placed signs and materials on the sidewalk to induce people to come in as they walked along. The store had even obtained a permit to use a certain portion of the sidewalk for such a purpose. The main issue of the case was whether the store was an occupier with respect to the entire sidewalk, or whether its duty was limited to the area under the permit. The Court decided that store liability applied to the entire sidewalk as the sidewalk was often used as an extension of the store itself, thus fulfilling the requirement of physical possession, as per section 1 of the Occupiers Liability Act. The permit was also instrumental in the Court reaching its decision, but it alone is not indicative of an intent to control. Some active exploitation of the sidewalk beyond mere incidental use is typically needed. Second, the case of Moody v. Toronto (City) (1996) facts included a municipal sidewalk used exclusively by patrons entering the Rogers Centre for sporting events. Based on this near-exclusive use, the fact that a number of Rogers Centre patrons had no alternative but to use the walkway and the fact that the number of people at the beginning and end of an event would make it impossible for a patron to watch for hazards on the walkway. Here, the court held that the Rogers Centre had “sufficient control over patrons allowed to enter the walkway” to be classified as an occupier. To differentiate with Bogoroch here the issue was not that the defendant had physical possession of the sidewalk, but rather that it exercised “control over patrons” and as such fell under the fourth definition of occupier as stipulated by the Occupiers Liability Act. Whether a case falls under the Bogoroch or Moody type fact pattern, the key ingredient to finding that a private property owner is an occupier of the neighboring municipal property would appear to be the purpose for which the property-owner uses the sidewalks. If it is more than just a route used for commuting, then it is unlikely that a duty can be established, but if it can be considered an extension, through owner’s exploitation of municipal property, and almost exclusively for the benefit of the owner, then liability can follow. Lastly, if neither of the fact patterns are present and a duty cannot be established under the Occupiers Liability Act, it may be prudent to turn to the common law tort of nuisance as first established in Rylands v. Fletcher (1868). The principles in this English case have been used and applied with some imagination by the courts of Canada. In Brazzoni v. Timmins (City) (1992) the neighboring TD Bank was found liable for a slip and fall accident on a sidewalk touching its property on the basis that water runoff from melting now on its roof and parking lot ran across the sidewalk creating a dangerous situation that the court concluded it knew or ought to have known was a hazard to pedestrians using the sidewalk. Applying an almost strict liability approach to the matter, the Ontario Court of Appeal found that negligence is not a pre-requisite for finding liability based on a nuisance of this type. However, issues of knowledge and foreseeability in cases that followed such as Simmons v. Etobicoke (City) (2002) have challenged the Ontario Court of Appeals strict liability approach in Brazzoni, and as such has caused a bit of a stir when it comes to attributing liability to runoff water. It’s best to consult your expert slip and fall Toronto lawyer to see where your case stands. Municipal Property Pursuant to section 44(9) of the Municipal Act 2001, the hurdle for a plaintiff trying to sue a municipality is quite high. Generally, the municipality is not liable for a personal injury caused by snow or ice on a sidewalk unless it was through gross negligence. The test for gross negligence can be found in the case of Cerilli v Ottawa [2006], where the court asks three things.

  1. Did the city have actual knowledge of the unsafe conditions?
  2. Can knowledge of the unsafe condition reasonably be imputed to the city?
  3. Did the city have a reasonable opportunity to remedy the unsafe condition?

This means that the determination of gross negligence is in fact highly sensitive and easily countered by good faith and effort to enforce a system of maintenance. Cases that were successful in finding gross negligence share a fact pattern in which the city has become aware of a danger (over a period of several days) and did nothing to remedy it. Particularly where there has been a blatant disregard for maintenance standards/programs and will be exacerbated where the area of ice/snow accumulation is located in a high traffic pedestrian area, such as in a city’s downtown core. With such a high threshold to meet, plaintiffs and defendants turn to co-defendants (typically private owners) or nuisance torts to seek compensation for their injuries. Consulting your expert Toronto slip and fall lawyer for the appropriate strategy in municipal cases is key to a successful claim.