Good News From the Ontario Court of Appeal
December 23, 2011
In a unanimous decision released on December 23, 2011, the Ontario Court of Appeal provided welcome relief to motor vehicle accident victims by ruling that both physical and psychological impairments can be combined when assessing the definition of “catastrophic impairment” as it relates to “impairment of the whole person” under section 2(1.1)(f) of the Statutory Accident Benefits Schedule (SABS). The Ontario Court of Appeal reversed the lower court decision in,Kusnierz v. Economical, which had held that only physical impairments could be considered when assessing the “impairment of the whole person.”
Justice MacPherson, on behalf of the Court, rejected the lower court’s interpretation of the defining section 2(1.1)(f) of the SABS and followed the long standing reasoning in Desbiens which permits combining impairments.
Justice MacPherson goes on to conclude the AMA Guides are illustrative rather than exhaustive and to prohibit combining impairments goes against the fairness and objectives of the SABS. The SABS and the AMA guides do not “articulate a policy position against combination”. To deny persons with combined physical and psychiatric impairments the right to claim enhanced benefits is unfair.