In the License Appeal Tribunal case of Banga v. Certas Home and Auto Insurance Company, Adjudicator Norris found that CAT definitions from the 2016 Statutory Accident Benefit Schedule applied to an accident which took place before the 2016 Schedule came into effect.

The matter arose out of a motor vehicle accident on June 22, 2016. At the time of the accident, the Applicant had a motor vehicle liability policy in place, effective as of May 18, 2016. Initially, the Applicant’s policy was governed by the Statutory Accident Benefits Schedule – effective September 1, 2010 (“the 2010 Schedule”). Shortly before the accident but after the Applicant’s policy was in place an amended version of the Statutory Accident Benefits Schedule came into effect. This amended schedule (“the 2016 Schedule”) came into effect on June 1, 2016 and contained various changes including an increased threshold for the determination of a catastrophic impairment.

The Applicant brought forward a claim of catastrophic impairment which under the 2010 Schedule would have required her to demonstrate marked impairment in one of four domains of functioning. The 2016 Schedule, however, has a much more stringent requirement necessitating that the Applicant demonstrate marked impairment in 3 of the 4 domains of functioning. Unsurprisingly, the Applicant argued that 2010 Schedule should apply whereas the Respondent believed that the definition found in the 2016 Schedule should be used.

This particular interplay of criteria had been addressed previously in the Licence Appeal Tribunal case of 17-007264 v. Allstate Insurance (known as “HS”). In “HS” the Tribunal determined that the catastrophic impairment definition found in the 2016 Schedule applies to accidents that occur on or after June 1, 2016.

Though the decision in HS did not bind Adjudicator Norris in this matter, the Applicant nevertheless took efforts to differentiate her case.  The Applicant argued that HS did not address the core issues of her claim, namely that section 2(1.2) of the 2016 Schedule legacies in section 18(3)(b)of the 2010 Schedule and that the references in section 18(3) to “catastrophic impairment” naturally mean the definition of catastrophic impairment as outlined in 2016 Schedule. Further, the Applicant argued that it would be inconsistent to have a hybrid clause which simultaneously refers to sections of the 2010 Schedule and the 2016 Schedule. Lastly, the Applicant submitted that the 2016 Schedule is “benefits conferring” legislation and should therefore be interpreted in a broad and generous manner.

Adjudicator Norris did not accept these arguments and found that the reference to “catastrophic impairment” in sections 18(3)-(5) and section 19(3) of the 2010 Schedule in the transitional provisions of the 2016 Schedule does not mean that the “catastrophic impairment” definition in the 2010 Schedule applies to the 2016 Schedule. The cited sections “address monetary limits for transitional policies only”.

Moreover, the 2016 Schedules definition of catastrophic impairment applies as it is the version of the schedule which applies to the Applicant’s policy.  Adjudicator Norris stated that “Applying the definition as outlined in the governing legislation at the time of the accident is the most harmonious interpretation of the legislation”. Adjudicator Norris also rejected the Applicant’s argument, saying “it is not inconsistent to have a hybrid clause which simultaneously refers to a section of the 2010 Schedule and the 2016 Schedule”. The lack of any specific reference within the 2016 Schedule to the catastrophic impairment definition of the 2010 Schedule and the inclusion of section 20 of the 2010 Schedule  in the transitional policies of the 2016 Schedule led Adjudicator Norris to interpret the legislation more narrowly. The inclusion of some elements and the exclusion of others indicates that those aspects of the 2010 Schedule which were excluded were excluded intentionally. As such Adjudicator Norris concluded that the catastrophic impairment requirements in the 2010 Schedule do not apply to the Applicant’s accident as it occurred after June 1, 2016.

Adam Imtiaz is a summer student at ZTGH. If you have a question about this decision, please contact Peter Durant at 416-777-5234.