The Court of Appeal for Ontario has released its decision in Pastore v. Aviva, allowing the appeal and restoring the Director’s Delegate’s order.

In Pastore, the claimant was involved in a car accident on November 16, 2002. She suffered a fractured left ankle. She had numerous surgeries and ultimately applied for a catastrophic determination. The issue in dispute was whether the claimant was catastrophically impaired due to a mental or behavioural disorder, under subsection 2(1.1)(g) of the SABS.

The CAT issue proceeded to arbitration. The arbitrator accepted that the assessment of a Class 4 impairment in one area of function was sufficient to meet the definition of“catastrophic impairment”. This was the only area of function she reviewed in detail. On this basis, she concluded that Pastore had suffered a catastrophic impairment.

On appeal, the Director’s Delegate agreed with the Arbitrator that a Class 4 impairment was required in only one of four areas of functioning to establish a CAT impairment.

The Divisional Court disagreed with FSCO and granted the insurer’s application for judicial review. The Court found that the Director’s Delegate had failed to properly appreciate the effect of the incorporation of the Guides into the SABS. The Guides are incorporated into the SABS and must be treated as part of the legislative scheme. A plain reading of the words in s. 2(1.1.)(g) bearing in mind the context and purpose of the legislation and taking into account the FSCO Guidelines makes it clear that all four areas of function are to be accounted for in an assessment of catastrophic impairment.

Justice Matlow disagreed in part. He found there was nothing in the Guides which required more than a single finding and there was no requirement that every assessment allot a mental impairment class to each of the four areas of functional limitations before an impairment can be found to qualify. He held that the Guides are not “part of the legislation” and are only guidelines.

The Court of Appeal held on standard of review principles, the Divisional Court failed to give the Director’s Delegate sufficient deference. The Court of Appeal held that the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single, functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range of reasonable, acceptable determinations.

Of note, this is the second decision in a matter of weeks where the Court of Appeal has overturned a decision of the Divisional Court on an application for judicial review of FSCO.

See Pastore v. Aviva Canada Inc., 2012 ONCA 642