Ontario court denies bid to use new summary judgment rules to determine “catastrophic impairment”

The Ontario Superior Court has derailed a plaintiff’s bid to obtain under new provincial rules for summary judgment a declaration that she suffered a “catastrophic impairment.”

Nancy Stewart was severely injured in a motor vehicle accident on Nov. 4, 2005. The plaintiff was insured by State Farm and applied for no-fault benefits under the Statutory Accident Benefits Schedule (SABS).

State Farm agreed Stewart was entitled to some benefits and paid her more than $281,000 as of Feb. 29, 2012. But the insurer argued that Stewart had not established she had suffered a “catastrophic impairment”, and as such, was not entitled to enhanced medical-rehabilitation benefits of as much as $1 million.

Based on Ontario’s new rules for summary judgment, Stewart argued the court had sufficient evidence before it to find a “catastrophic impairment” on a balance of probabilities. Therefore, she submitted, there was no genuine issue requiring a trial to determine “catastrophic impairment.”

State Farm responded there was insufficient evidence on the summary judgment motion for the court to make a finding on “catastrophic impairment.”

In support of its submission, State Farm noted the findings of a September 2008 assessment could not be relied upon and additional tests, including a psychiatric examination the plaintiff had refused to attend, had been ordered.

The plaintiff responded this test request was invalid, because it had not been made within 30 days or in writing, as required under the SABS.

In its decision, the Ontario Superior Court observed the province’s recently amended rules for summary judgment now say the court shall grant summary judgment if it is satisfied “there is no genuine issue requiring a trial with respect to a claim or defence.”

In Combined Air Mechanical Services Inc. v. Flesch, the Ontario Court of Appeal in 2011 established a “full appreciation test” to determine whether or not there is no genuine issue requiring a trial. In essence, the court requires a trial if it cannot achieve a full appreciation of the evidence and issues before it on the summary judgment motion.  

“Can a ‘full appreciation’ of the evidence and the issues required to make a finding of ‘catastrophic impairment’ be achieved by way of this summary judgment motion?” the court wrote in its decision.

“In the case at bar, expert evidence will be critical in determining whether or not Ms. Stewart is ‘catastrophically impaired.’

“There is potential for conflicting evidence from a number of expert witnesses as to physical, psychiatric and psychological impairments. There is a significant gap in the evidence with respect to psychiatric impairment, although there is some evidence from a psychologist regarding psychological impairment. Evidence from an expert in applying the AMA [American Medical Association] Guides may also be required. 

“The motion record presented by the plaintiff in this case, even if supplemented by hearing some oral evidence on discreet issues, would not enable me to achieve the ‘full appreciation’ of the evidence and issues required to make a dispositive finding of ‘catastrophic impairment.’”

The full decision can be found at:

http://www.canlii.org/en/on/onsc/doc/2012/2012onsc2615/2012onsc2615.html