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Andrew Leroy Rudder
Rudder Law Group
Andrew Leroy Rudder is a personal injury lawyer specializing in catastrophic impairment law. Rudder is the founder of the Rudder Law Group, a published author of the LexisNexis Inc. book entitled, “Catastrophic Impairment Law in Canada,” a director at Head Injury Rehabilitation Ontario, a co-chair of the Law Society of Ontario’s annual Solo and Small Firm Conference, and a vlogger on the vlog series entitled, “Personal Injury Lawyer Tips”
As a personal injury lawyer specializing in Catastrophic Impairment Law and a co-chair of the Law Society of Ontario’s 19th Solo and Small Firm Conference, I often encounter complex questions surrounding the Statutory Accident Benefits Schedule (SABS). One particularly nuanced issue involves determining who can apply for a catastrophic impairment designation. While it's clear that those directly involved in an accident can apply, the situation becomes less straightforward for individuals who suffer psychological or emotional injuries as a result of a loved one's involvement in an accident. This article will explore the evolving landscape of this issue, particularly in light of recent legal developments.
Prior to June 1, 2016, the SABS defined catastrophic impairment as an impairment "caused by an accident." In Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423, the Divisional Court addressed this language, finding that an individual who suffered psychological harm due to her son's accident, but was not directly involved herself, could indeed apply for a catastrophic impairment designation. The court emphasized the importance of interpreting the SABS broadly and purposively, recognizing its remedial nature and consumer protection objectives. This decision was a significant victory for those indirectly affected by accidents, ensuring they could seek the necessary support for their injuries.
However, the landscape shifted on June 1, 2016, when the SABS was amended. The definition of catastrophic impairment changed to "an impairment… in an accident that occurs on or after June 1, 2016." This change led to considerable debate about whether individuals not directly involved in an accident could still apply for a catastrophic impairment designation. Insurers argued that the new language restricted eligibility to those physically present "in the accident." This interpretation created a significant hurdle for individuals who suffered serious psychological harm but were not at the scene of the accident.
In the recent Licence Appeal Tribunal decision, Ciasullo v. Unica Insurance Inc. (2024 ONLAT 23-000330/AABS-PI), Adjudicator Kate Grieves addressed this contentious issue. The case involved an applicant who suffered psychological harm due to the loss of his wife and children in a motor vehicle accident, despite not being present himself. Adjudicator Grieves sided with the applicant, finding that the phrase "in an accident" did not preclude individuals not directly involved from applying for a catastrophic impairment designation. The adjudicator emphasized the importance of considering the entire context of the SABS and interpreting its provisions broadly, in line with its remedial purpose. This decision reinforces the notion that the SABS should be applied inclusively, ensuring that those with the most severe injuries, even if psychological, have access to the necessary benefits.
These cases highlight the ongoing complexities of catastrophic impairment law and the importance of staying abreast of legal developments. While the law continues to evolve, these decisions represent a positive step towards ensuring fair and just outcomes for all individuals affected by motor vehicle accidents, regardless of their direct involvement. It is crucial for legal professionals to remain informed and advocate for the rights of their clients in this evolving landscape.
This article is authored by Andrew Leroy Rudder, Rudder Law Group. The content featured, including information and opinions provided by the author, is that of the author and does not represent or embody any official position of, or statement by, the Law Society of Ontario, except where specifically indicated, nor should it be understood as providing definitive practice standards, legal advice, or any other professional advice. The Law Society of Ontario does not warrant the current or future accuracy of the content and expressly disclaims responsibility for any errors and omissions, including inaccuracies that may result due to developments in law or in any other area of professional practice and standards.
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