Ontario Divisional Court sets aside FSCO director delegate ruling in Pastore

The Ontario Divisional Court ruled in Aviva v. Pastore that the determination of a Class 4 (marked) or Class 5 (extreme) psychological impairment under subsection (g) cannot include consideration for pain associated with physical injuries.

The decision reverses a Financial Services Commission of Ontario (FSCO) Appeal decision.

In Aviva and Pastore, a FSCO director delegate ruled there is no inconsistency in defining an auto injury victim as “catastrophically impaired,” even though she suffered only a single Class 4 impairment, and her physical and psychological injuries fell well below the 55 per cent threshold for a person to be classified as catastrophically impaired under s.2(1.1)(f) of the province’s Statutory Accident Benefits Schedule (SABS).

The Divisional Court, in a 2-1 split, also found that FSCO’s interpretation of the SABS cannot be supported. Rather, the SABS, AMA Guides and the Superintendent’s Guidelines, make it clear that all four areas of function are to be accounted for in an assessment of catastrophic impairment.

The Divisional Court majority set aside the decision of the FSCO director’s delegate without prejudice to the matter being re-heard by a different director’s delegate or, if appropriate, Anna Pastore could make a fresh catastrophic impairment application.

In an email, Kadey B.J. Schultz, a partner at Hughes Amys LLP, outlined Pastore’s options moving forward. These options include:

• to have her claim reheard by Director’s Delegate David Evans;
• to appeal this ruling to the Ontario Court of Appeal;
• to re-submit an OCF-19, “but any such application would quite possibly be barred by the two year limitation period,” Schultz said; or
• accept the ruling of the Divisional Court.

“It will be interesting to watch this case to see if a further appeal will be made to the Ontario Court of Appeal,” Schultz wrote. “In the meantime, the Court of Appeal will consider the Kusnierz matter and perhaps that decision will render any further appeal moot.”