Law Times

PAGE 12 FOCUS Lawyers awaiting legislative response after BY JUDY VAN RHIJN For Law Times motor vehicle accidents has come down squarely on the side of in- jured parties. On Dec. 23, the Ontario Court T of Appeal reversed the finding in Kusnierz v. The Economical Mu- tual Insurance Co. and found that a whole-body assessment includ- ing all injuries could serve to meet the threshold required to access increased benefits for catastrophic impairment. The decision may turn around a debate that has, until now, appeared to be slipping away from plaintiffs and their counsel. The original decision in Kus- nierz in October 2010 unseated expectations set by previous juris- prudence on combining diverse injuries when assessing total im- pairment. A report from the Fi- nancial Services Commission of Ontario shortly aſter came out he latest upheaval in the debate on combining physical and psychological impairments sustained in against combining. Now the Court of Appeal has ostensibly settled the issue by placing the current interpretation back to where it was before the trial deci- sion. Still, the question of future legislative change looms. Appeal court Justice James MacPherson put the matter clearly, preferring the reasoning in Desbiens v. Mordini and Arts v. State Farm Insurance Co. to the trial judge's conclusion. "The lan- guage of the [statutory accident benefits schedule], the purpose of the guides, the guides' refer- ences to combining physical and psychological impairments, and the goals of the [schedule] lead me to conclude that the combination of physical and psychological im- pairments is appropriate under cl. 2(1.1)(f)," he wrote. MacPherson preferred an inclusive rather than a restrict- ive interpretation. He reasoned that even though the schedule legislator could have, but did not, expressly provide for the combina- tion of physical and psychological either way, the plain language of cl. 2(1.1)(f) seems to suggest that combination of both kinds of impairment is possible." Paul Pape, who represented the plaintiff on the appeal, be- lieves the Court of Appeal's deci- sion is important to the plaintiffs and insurance bars but is even more significant to accident vic- tims. "You can now combine psychological conditions with other impairments in order to get past the 55-per-cent threshold to access $1 million in benefits." Pape notes that as no party 'You can now combine psychological conditions with other impairments in order to get past the 55-per-cent threshold to access $1 million in benefits,' says Paul Pape. injuries, the opposite is also true. "The legislator could have, but did not, expressly forbid the combina- tion of physical and psychiatric injuries. Without qualification has sought leave to appeal, he feels the decision should be the end of the story for the period with which his client was concerned. "Nobody is going to amend the legislation retroactively, so this decision won't be affected. Any changes stemming from the re- port will be prospective." It's those prospective chan- ges that still have plaintiff lawyers worried. The government has exer- cised its responsibility to periodic- ally revisit the definition based on current medical evidence and the minister of finance is still reviewing the superintendent of financial ser- vices' recommendations. Those recommendations were that because there's no objective, standardized system of assess- ment, there should be no combin- ing. But that's a view MacPherson disagreed with. "To disregard the mental and behavioural consequences of a per- son's injuries because they are too hard to measure would defeat the purpose of the guides. . . . In at least five places, the guides recommend that physicians refer to Chapter 14 in assessing the total impairment of persons suffering from both physical and behavioural/mental impairments. These recommen- dations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account." Plaintiff lawyers have welcomed CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law- related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST these comments with great relief, but the question remains as to what legislators will do. Richard Halpern of Thomson Rogers believes the Kusnierz decision should end the debate. "It is now clear what catas- trophic impairment means. The decision makes absolute common sense. The idea that you can assess total impairment without combin- ing all the injuries is ridiculous." Halpern believes the FSCO report should die a natural death. "It is a severely flawed report. The public has waited a long time for the Court of Appeal to make a decision and we don't need any more uncertainty." Halpern points out that there's no suggestion that the interpreta- tion is a problem for the insurance industry. "It is not a source of un- controllable costs or difficulty. As the Court of Appeal said, very few cases come under this category. It isn't a consumer issue by any stretch of the imagination. If it makes common sense from a pro- tection point of view, then that's what it should be." Meanwhile, the Court of Ap- peal is considering its decision in another case dealing with the def- inition of catastrophic impairment that followed only weeks aſter the Kusnierz ruling. Aviva Canada Inc. v. Pastore is an appeal from the Div- isional Court that looks at a situa- tion where the pain associated with the physical and mental injuries is so intertwined that it's very difficult to separate them as neatly as the guidelines seem to contemplate. The case also raises the ques- tion of whether a person who's profoundly impaired in only one of the four function areas considered under the definition should get the benefit of the catastrophic impair- ment designation. Tom Curry of Lenczner Slaght Royce Smith Griffin LLP represents Anna Pastore and cited Kusnierz in his arguments. The Divisional Court majority had relied on the Kusnierz judgment at trial. "Once that was set aside, a num- ber of things relevant to Pastore were decided and clarified," he says. "If the Court of Appeal decides to give some relief to Mrs. Pastore, I think Pastore and Kusnierz will be very important decisions." LT www.lawtimesnews.com CLL - 1-2 pg - 4X.indd 1 1/20/12 10:46 AM March 12, 2012 • Law TiMes Kusnierz

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