Injuries 'resulting' from an accident not enough for catastrophic designation

This article was produced in partnership with Thomson Rogers

Greg Hudson of Canadian Lawyer spoke with Chris Lazaris of Thomson Rogers about a recent decision regarding catastrophic designations and injured family members  

Whether a mother of a child who was in a car accident can qualify as catastrophically injured in the context of her statutory accident benefits rested on the difference between whether her injuries were “caused by an accident”, or whether they came “as a result” of it, according to a recent decision in Kellerman-Bernard v Unica Insurance Inc., 2022 CanLII 6755 (ON LAT). “In order to obtain catastrophic designation in the context of accident benefits, the previous version of the SABS (the Statutory Accident Benefits Schedule) included in the definition of ‘catastrophic’ that the injury in question must have been ‘caused by’ an accident,” explains Chris Lazaris, personal injury lawyer at Thomson Rogers. “And this ‘caused by’ an accident is very similar to other language in the SABS, which states that one can generally access benefits if the injury came about ‘as a result’ of an accident. Now, to the naked eye, those seem like identical phrases. That’s what the applicant advanced in the Kellerman case.”

In that case, which is currently under appeal, a child was injured in a car accident. The child’s mother didn’t witness the accident, but as a result of what her child was going through, she advanced an application for benefits based on psychological difficulty. This, by itself, is not controversial. “Under section 3 of SABS under the definition of insured person there is an option with is if ‘named insured, specified driver, spouse or dependent is not involved in an accident but suffers psychological or mental injury ‘as a result,” says Lazaris. “So, whatever ‘as a result of’ means, it can definitely apply to a direct family member who did not witness the accident.”

However, the mother’s claim for catastrophic designation was rejected.

According to Lazaris, the difference in language might not have led to vastly different outcomes. “But the issue was put before a tribunal.” Says Lazaris. “The definition that they arrived at for ‘caused by’ an accident was that it needed to have been directly caused by the accident.” And since the mother wasn’t present during the accident, it couldn’t have directly caused her psychological injuries, nor could they be considered catastrophic.

He points out that the decision may leave some wiggle room for family members who witness an accident, but that wasn’t the case in Kellerman.

Adding an extra layer of confusion to this case is that it happened when it did. Had the

accident occurred before June 2016 the threshold for a catastrophic designation was lower. Now an insured person can only be classified as ‘catastrophically impaired’ if their impairment is sustained “in an accident.”

“So, ‘in an accident’ versus ‘not in an accident’ is the exact language used in the part of section 3 of the SABS allowing family members to be to receive benefits for psychological injuries as a result of someone else’s accident.” It’s a subtle shift that has large repercussions. It appears to mean that family members won’t be entitled to catastrophic impairment if they were not directly involved in the accident, which would mean hundreds of thousands of dollars less in potential benefits.

”I'm hopeful that Kellerman does get reversed because I think that a plain reading of ‘caused by’ and ‘as a result of’ should be aligned. In terms of the overall scheme of accident benefits, the Tribunal had its reasons in reinforcing the distinction between ‘involved in’ an accident versus ‘not involved’ in an accident,” says Lazaris. “However, I do hope that we see subsequent changes to the somewhat arbitrary categorization between non-CAT, CAT, and the access to those categories, because fundamentally this distinction is based on policies other than providing people with what they need.”

Chris Lazaris received his Juris Doctor from the University of Western Ontario in 2018. Before law school, he received a Bachelor of Arts from McGill University in 2014 with a double major in history and political science.