But 'there's still going to be a fight on this' warns McLeish Orlando’s Nick Todorovic
This article was produced in partnership with McLeish Orlando LLP.
A recent ruling by a divisional court in Kellerman-Bernard v. Unica Insurance Inc. is positive news for family members whose lives have been affected by the catastrophic injuries of a loved one, according to Nick Todorovic, partner at McLeish Orlando.
The issue under review was whether a mother of a child who was in a car accident can apply for catastrophically impairment designation in the context of her statutory accident benefits despite not having been directly involved in the accident herself. The applicant argued that, although she wasn’t present during the accident, the catastrophic injury of her child caused such a significant psychological or emotional injury that would meet the catastrophic threshold. She applied and her application was denied on the basis that she was not directly involved in the accident.
A dispute arose and the License Appeals Tribunal (LAT) sided with the insurer by coming to the conclusion that since the mother wasn’t present at the time of the accident, she could not apply for catastrophic designation. On reconsideration, she was again denied. The Divisional Court disagreed with narrow interpretation of the statute, explains Todorovic.
“This is consumer protection legislation and meant to be remedial and inclusive, so it should be read in that way.”
Such a narrow interpretation proposed by the LAT would have defeated the purpose of the legislation, Todorovic explains. “What the insurer wants to do is exclude an entire group of people that have suffered significant injuries (typically psychological and emotional) because a loved one was involved in an accident.
What the insurer could not reconcile is how the multiple sections in the legislation interact with each other, specifically sections 3(1) and 45(1). Section 3(1) defines who is an insured person. It was conceded that Kellerman was an insured person by the Respondent. Section 45(1) states that an insured person has the right to apply for catastrophic impairment designation. Based on the reading of these two sections, it granted Kellerman the right to apply. The Respondent’s focus on whether the impairment was “caused by an accident” in section 3(2) was rejected by the divisional court.
It's important to point out that this interpretation of the legislation was before the June 2016 overhaul of the catastrophic impairment section. “There’s still going to be a fight on this point for similar denials post-June 2016,” Todorovic predicts. But at the moment, it’s a win for the narrow group of people harmed by a loved one’s injury.
This decision is still up for appeal so the fight may not be over. There is likely still a long road ahead for people who have suffered significant psychological and emotional injuries having witnessed the terrible injuries of loved once who were involved in an accident. Todorovic is hopeful that this decision will be upheld if appealed so that seriously injured people can get the help they need and deserve.