On May 13, 2011, the Ontario Division Court released its decision in Aviva v. Pastore. The FSCO Arbitrator and the Director’s Delegate had concluded that Ms. Pastore was catastrophically impaired. The accident benefit insurer had filed for judicial review of the decision to the Ontario Division Court.
The Ontario Division Court set aside the decision of the Director’s Delegate without prejudice to the matter being reheard or pursued as a fresh application. The majority decision was written by Justice Lederer and was supported by Justice Cunningham. A ‘concurring in part’ decision was written by Justice Matlow.
The Issues were as follows:
1. Is a Class 4 (marked impairment) in only one area of functioning sufficient for a catastrophic impairment designation?
The majority of the Ontario Division Court concluded that all four of the areas of function identified in the AMA Guides (4th edition) must be taken into account.
In a ‘concurring in part’ decision, Justice Matlow of the Ontario Division Court was of the view that nothing in the Guides requires more than a single finding.
2. Should an impairment assessment under s.2(1.1)(g) of the SABS (now s.2(f) of the current SABS) distinguish and exclude impairments that are due to physical injuries from an assessment of impairments that are due to mental or behavioural disorder?
The Arbitrator and the Director’s Delegate had included pain that was associated with, or was a symptom of, the physical injuries suffered by Ms. Pastore, rather than considering only the pain associated with a mental or behavioural disorder since in their view it was not possible to separate the two.
The Ontario Division Court concludes that the Class 4 impairment in respect of Ms. Pastore’s activities of daily living improperly considered pain associated with her physical injuries.