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January 2012   

Kusnierz v. Economical - Decision from the Court of Appeal

First published in MB's Transportation Newsletter

On December 23, 2011, the Ontario Court of Appeal released its decision in Kusnierz v. Economical, 2011 ONCA 823 dealing with the issue of whether a trier of fact is to combine physical and psychological impairment when determining whether a person is "catastrophically impaired" as it relates to "impairment of the whole person" under section 2(1.1)(f) of the Statutory Accident Benefits Schedule (SABS). 

A unanimous Court of Appeal overturned the decision of the Honourable Justice Lauwers and found that the AMA Guides are illustrative rather than exhaustive and to prohibit combining impairments goes against the fairness and objectives of the SABS.

The Court further found that the SABS and the AMA guides do not "articulate a policy position against combination" and that to deny persons with combined physical and psychiatric impairments the right to claim enhanced benefits is unfair.

In rendering this verdict, the Court of Appeal appears to have departed from the principles of statutory interpretation as established by the Supreme Court of Canada and as relied on by the Honourable Justice Lauwers. 

This decision confirms that an accident victim does not have to establish catastrophic impairment on the basis of physical impairments alone, or psychological impairments alone. Instead, the accident victim is entitled to have his or her psychological impairments combined with his or her physical impairments to determine if he or she is entitled to the protection provided by a catastrophic impairment designation.

Read the complete court decision.



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