


COURT OF APPEAL FOR
    ONTARIO

CITATION:
Pastore v. Aviva
    Canada Inc., 2012 ONCA 642

DATE: 20120927

DOCKET: C54288

Rosenberg and Feldman JJ.A. and Swinton J. (
ad
    hoc
)

BETWEEN

Anna Pastore

Appellant

and

Aviva Canada Inc. and Financial Services
    Commission of Ontario

Respondents

and

Ontario
    Trial Lawyers Association, Insurance Bureau of Canada and the Attorney General
    of Ontario

Interveners

J. Thomas Curry, Ren R. Bucholz and Joseph Campisi Jr.,
    for the appellant

Robert H. Rogers, for Aviva Canada Inc.

Robert Conway, for Financial Services Commission of
    Ontario

Lee Samis and Krista M. Groen, for the Insurance Bureau
    of Canada

James L. Vigmond and Brian M. Cameron, for Ontario Trial
    Lawyers Association

Matthew Horner and Hart Schwartz, for the Attorney
    General of Ontario

Heard: January 19, 2012

On appeal from the judgment of the Divisional Court
    (Cunningham A.C.J.S.C., Matlow & Lederer JJ.) dated May 13, 2011, with
    majority reasons by Lederer J. and reasons dissenting in part by Matlow J.,
    reported at 2011 ONSC 2164, 280 O.A.C. 347.

Feldman
    J.A.:

A.

Introduction

[1]

After being hit by a car as a pedestrian in a 2002 accident, the
    appellant suffered significant pain and impairment as a result of her broken
    left ankle, and eventually looked to her insurer for enhanced accident benefits
    due to catastrophic impairment. This appeal, which proceeded based on leave to
    appeal from the decision of the Divisional Court, represents the fifth level of
    adjudication of her claim. The issues before the court are the interpretation
    of s. 2(1.1)(g) of the
Statutory Accident Benefits Schedule
and the
    proper standard of review of a decision of the directors delegate.

The Legislation

[2]

The Statutory Benefits Act Schedule  Accidents on or after November
    1, 1996
, O. Reg. 403/96 (the
SABS
) were made pursuant to the
Insurance
    Act
, R.S.O. 1990, c. I.8. Subsection 2(1.1) defines catastrophic
    impairment and comprises seven categories of impairments. I set out the
    impairments in both ss. 2(1.1)(f) and (g) here for ease of reference, though it
    is the interpretation of clause (g) that is at issue on this appeal:

(1.1)

For the
    purpose of this Regulation, a catastrophic impairment caused by an accident
    that occurs before October 1, 2003 is,



(f)
    subject to subsections (2) and (3), an impairment or combination of
    impairments that, in accordance with the American Medical Associations
Guides to the Evaluation of Permanent Impairment
,
    4th edition, 1993, results in 55 per cent or more impairment of the whole
    person; or

(g)
        subject to subsections (2) and (3), an impairment that, in accordance with
    the American Medical Associations
Guides to the Evaluation of Permanent
    Impairment
, 4th edition, 1993, results in a class 4 impairment (marked
    impairment) or class 5 impairment (extreme impairment) due to mental or behavioural
    disorder.

B.

Facts and Adjudicative History

[3]

The appellant, Pastore, was hit by a car while crossing the street on
    November 16, 2002. Her injury was a fractured left ankle that did not heal
    properly, requiring a number of surgeries over the next five years and also
    resulting in a right knee replacement when the ankle pain led to a change in
    her gait. The impact on her life was great. Prior to the accident, Pastore was
    active and self-sufficient, acting as the primary caregiver for her husband of
    38 years who was receiving chemo-dialysis. Since the accident, her mobility has
    been very limited.  She is no longer able to do housekeeping or participate in
    recreational activities. She is almost completely dependent on others for her
    most basic personal care needs.

[4]

In May 2005, Pastore applied to her insurer, the respondent Aviva, to
    have her injuries designated as causing a catastrophic impairment, which
    would qualify her for significantly enhanced
SABS
benefits.

[5]

She was first assessed for catastrophic impairment at a designated
    assessment centre (DAC) by a team that included a physiatrist, a psychologist,
    a psychiatrist and an occupational therapist. The DAC assessment found that the
    appellant had a catastrophic impairment consisting of a marked impairment in
    her activities of daily living due to mental or behavioural disorder under s.
    2(1.1)(g) of the
SABS
.

[6]

An assessment under s. 2(1.1)(g) is carried out by reference to the American
    Medical Associations
Guides to the Evaluation of Permanent Impairment
(the
Guides
). Chapter 14 of the
Guides
sets out a three-stage
    process for evaluating catastrophic impairment based on mental disorder using
    four categories of functional limitation and five levels of dysfunction. The
    first stage is diagnosis of any mental disorders, followed by the second stage
    where the impact on daily life is identified. The third stage is assessing the
    severity of limitations by assigning them into the four categories and determining
    their levels of impairment. The
Guides
direct the assessment in the
    following four categories of functional limitation:

(1)

Activities of daily living (ADL);

(2)

Social functioning;

(3)

Concentration, persistence and pace; and

(4)

Deterioration or decompensation in work or work-like settings.

[7]

These four categories are each assessed based on the following five
    levels of impairment: class 1: no impairment; class 2: mild impairment, which
    implies that any discerned impairment is compatible with most useful
    functioning; class 3: moderate impairment, which means that the identified
    impairments are compatible with some, but not all, useful functioning; class
    4: marked impairment, which is a level of impairment that significantly
    impedes useful functioning; and class 5: extreme impairment, which preclude(s)
    useful functioning.

[8]

The appellant was diagnosed with several disorders recognized in the
    DSM-IV-TR (American Psychiatric Association,
Diagnostic and Statistical
    Manual of Mental Disorders
, 4th Ed., Text Revision (Washington, D.C.: APA,
    2000)). Her disorders included Adjustment Disorder with Depressed Mood,
    Specific Phobia, and Pain Disorder with both Psychological Factors and a
    General Medical Condition. The DAC assessment concluded that the appellant had
    a class 4 impairment in the activities of daily living with an overall
    assessment of class 3 (moderate).  It was because of the one class 4 (marked
    impairment) that the DAC report concluded that the appellant qualified as
    catastrophically impaired in accordance with s. 2(1.1)(g).

[9]

The respondent insurer did not accept the DAC report. The parties then
    participated in mediation under s. 280 of the
Insurance Act
, which did
    not result in an agreement. Following the mediation, the appellant applied for
    arbitration under s. 282 of the Act.

[10]

The
    respondent raised before the arbitrator the two issues that are before this
    court on the appeal: 1) Does s. 2(1.1)(g) require an overall assessment of
    marked impairment in all four categories or can marked impairment in one
    category result in a finding of catastrophic impairment?; and 2) Was it an
    error for the DAC assessors to include physical pain in the assessment of
    mental disorder in order to comply with the
Guides
?

[11]

The
    arbitrator agreed with the decision of the DAC assessors. She was satisfied that
    one marked impairment was enough to comply with the
Guides
approach
    to catastrophic impairment. Also, she heard evidence on the question whether
    all physically based pain can and should be factored out of the assessment of impairment
    due to mental disorder, or whether physically and mentally based pain that are
    intertwined can be considered cumulatively in a mental disorder assessment. She
    concluded that it was not essential to try to factor out all physically based
    pain, and that in fact it would not be possible to do so. Rather, treating both
    pain sources cumulatively did not derogate from the directive of the
Guides
.

[12]

The
    respondent insurer exercised its right to appeal the decision of the arbitrator
    to the director of arbitrations on a question of law under s. 283 of the Act.
    The appeal was heard by a directors delegate (the delegate). He upheld the
    decisions of the arbitrator and of the DAC on the interpretation of s.
    2(1.1)(g) and whether one function at the marked impairment level was
    sufficient for qualification as catastrophic impairment. On the second question
    of how to assess the sources of pain that are due to a mental disorder, he
    concluded that the question of causation involved a finding of fact by the
    arbitrator on which he deferred.

[13]

Aviva
    then sought judicial review of the delegates decision to the Divisional Court.
    The Divisional Court reversed the decision of the delegate, the majority on
    both grounds, with the dissenting judge agreeing that the delegates decision
    was wrong on the second issue but not on the first issue.

[14]

On
    the first issue, the Divisional Court applied the correctness standard of
    review, although the majority said that they would have come to the same
    conclusion applying the reasonableness standard. On the second issue, the court
    found that the delegate acted outside the mandate of s. 2(1.1)(g) and thus
    outside his jurisdiction by including pain from physical conditions in the
    assessment of impairment due to mental disorder. The Divisional Court also
    found that the decision of the delegate on the second issue was an unreasonable
    one.

[15]

Leave
    to appeal to the Court of Appeal was granted. The appellant raises four issues
    before this court:

(1)

Did the Divisional Court apply the correct standard of review?

(2)

Was it reasonable to find that one impairment at the marked level (class
    4) is sufficient for a catastrophic impairment designation under s. 2(1.1)(g)?

(3)

Was it reasonable to include physically-based pain as due to a
    mental disorder in interpreting and applying s. 2(1.1)(g)?

(4)

If the delegates decision that physical pain can be considered
    under s. 2(1.1)(g) as due to a mental disorder is found to be unreasonable,
    does this amount to discrimination based on disability and a violation of the
    s. 15
Charter
rights of those who suffer chronic pain and are denied
SABS
benefits?

[16]

Two
    institutions were granted leave to intervene. The Ontario Trial Lawyers
    Association supports the appellant on the first issue, the proper
    interpretation of s. 2(1.1)(g) of the
SABS
, while the Insurance Bureau
    of Canada supports the respondent on that issue. The Attorney General of
    Ontario also intervened in response to the
Charter
issue, raised for
    the first time on the appeal.

C.

Analysis

Issue 1: Standard of review

[17]

The
    respondent concedes that the Divisional Court erred in requiring the delegate
    to be correct in his interpretation of the legislation and in finding that he
    acted beyond his jurisdiction by including physical pain as due to a mental disorder.
    The respondent agrees with the appellant that the Divisional Court was required
    to apply the reasonableness standard of review to both aspects of the decision
    of the delegate.

[18]

I
    agree that following the Supreme Court of Canada decision in
Dunsmuir v.
    New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, the correct standard of
    review in this case is the reasonableness standard. The delegate was engaged in
    the interpretation and application of his home statute, the
Insurance Act
,
    and the
SABS
regulations to that Act. Applying the first test in
Dunsmuir
,
    both the delegates authority to interpret the
SABS
and
Insurance
    Act
and to grant or deny
SABS
benefits has been recognized in
    previous jurisprudence as reviewable on a standard of reasonableness:
Owusu
    v. TD Home & Auto Insurance Co.
, 2010 ONSC 6627, 92 C.C.L.I. (4th) 197
    (Div. Ct.), at para. 1;
Wawanesa Mutual Insurance Co. v. Uribe
, 2010
    ONSC 5904, 271 O.A.C. 39 (Div. Ct.), at para. 9; and
Aviva Canada Inc. v.
    Murugappa
(2009), 251 O.A.C. 193 (Div. Ct.), at paras. 5-6.

[19]

In
    addition, applying the four factor test from
Dunsmuir
, at para. 64, it
    is evident that this is the type of decision and tribunal to which courts must
    accord deference. First, there is a clear privative clause contained in ss.
    20(1) and (2) of the
Insurance Act
, which sections provide:

20. (1)   This section
    applies with respect to proceedings under this Act before the Tribunal, the
    Superintendent and the Director and before an arbitrator.

(2)   A person referred
    to in subsection (1) has exclusive jurisdiction to exercise the powers
    conferred upon him or her under this Act and to determine all questions of fact
    or law that arise in any proceeding before him or her and, unless an appeal is
    provided under this Act, his or her decision thereon is final and conclusive
    for all purposes.

[20]

The
    Divisional Court discounted the effect of the privative clause on both issues.
    On the first issue, the court held that because the standard of review was
    correctness and the delegate had ignored the law in his decision, the privative
    clause had no effect. On the second issue, the Divisional Court found that the
    delegate had acted beyond his jurisdiction and therefore it was not necessary
    to consider the standard of review, and again, the privative clause would not
    affect that finding.

[21]

This
    finding regarding the effect of the privative clause does not accord with the
    modern approach on standard of review. The existence of a privative clause, one
    of the factors that is weighed in determining the applicable standard, weighs strongly
    in favour of the reasonableness standard.

[22]

The
    other three factors are: second, the purpose of the decision-maker; third, the
    nature of the question of law; and fourth, the expertise of the tribunal. Together,
    these factors support a deferential standard. The specialized adjudicative
    scheme for deciding issues of entitlement to
SABS
benefits, which includes
    interpreting the legislation, recognizes the expertise and experience of the director
    (and the delegates) and gives the director the authority to make the final
    determination, to which deference is typically afforded.

[23]

The
    Divisional Court also erred by finding that the delegate had exceeded his
    jurisdiction when he agreed that physical sources of pain could be considered
    as due to a mental disorder when applying s. 2(1.1)(g). In
Dunsmuir
,
    the Supreme Court defined questions of jurisdiction as follows: Jurisdiction
    is intended in the narrow sense of whether or not the tribunal had the
    authority to make the inquiry. In other words, true jurisdiction questions
    arise where the tribunal must explicitly determine whether its statutory grant
    of power gives it the authority to decide a particular matter (at para. 59).

[24]

The
    Supreme Court recently discussed the concept of excess of jurisdiction in
    administrative law in
Alberta (Information and Privacy Commissioner) v.
    Alberta Teachers Association
, 2011 SCC 61, [2011] 3 S.C.R. 654 and
    affirmed that true questions of jurisdiction will be exceptional. Rothstein
    J. for the majority stated, at para. 39:

What I propose is, I believe, a natural extension of the
    approach to simplification set out in
Dunsmuir
and follows directly
    from
Alliance
[
Smith v. Alliance Pipeline Ltd.
, 2011 SCC 7,
    [2011] 1 S.C.R. 160] (para. 26). True questions of jurisdiction are narrow and
    will be exceptional. When considering a decision of an administrative tribunal
    interpreting or applying its home statute, it should be presumed that the
    appropriate standard of review is reasonableness. As long as the true question
    of jurisdiction category remains, the party seeking to invoke it must be
    required to demonstrate why the court should not review a tribunals
    interpretation of its home statute on the deferential standard of
    reasonableness.

[25]

The
    Divisional Court majority viewed the delegates decision on the second issue as
    beyond his jurisdiction because he took into account physical pain which the
    court viewed as proscribed by the
Guides
. This was an error in law.
    The delegate was interpreting the legislation and the
Guides
and
    concluded that they allowed the DAC assessors and him to include as due to a
    mental disorder, inextricable pain that may be from physical causes. He was
    interpreting his home statute. This exercise was within his mandate and
    jurisdiction and should be judicially reviewed on the reasonableness standard.

[26]

Before
    addressing both issues by applying the reasonableness standard of judicial
    review, it is worth quoting here the articulation of that standard from
Dunsmuir
,
    at para. 47:

Reasonableness is a deferential standard animated by the
    principle that underlies the development of the two previous standards of reasonableness:
    certain questions that come before administrative tribunals do not lend
    themselves to one specific, particular result. Instead, they may give rise to a
    number of possible, reasonable conclusions. Tribunals have a margin of
    appreciation within the range of acceptable and rational solutions. A court
    conducting a review for reasonableness inquires into the qualities that make a
    decision reasonable, referring both to the process of articulating the reasons
    and to outcomes. In judicial review, reasonableness is concerned mostly with
    the existence of justification, transparency and intelligibility within the
    decision-making process. But it is also concerned with whether the decision
    falls within a range of possible, acceptable outcomes which are defensible in
    respect of the facts and law.

Issue 2: Was the delegates
    interpretation of s. 2(1.1)(g) of the
SABS
that one function at the
    marked impairment level (class 4) was sufficient for qualification as
    catastrophic impairment, a reasonable one?

(a)

The delegates
    reasons

[27]

A
    close review of the reasons for decision of the delegate demonstrates clear
    compliance with the reasonableness standard articulated by the Supreme Court of
    Canada. The reasons address the issue of the interpretation of s. 2(1.1)(g) clearly,
    setting out and dealing with each argument presented by Aviva, as the appellant
    at that stage, and arriving at an outcome that is one of a range of possible,
    acceptable  interpretations of s. 2(1.1)(g).

[28]

The
    role of the director under s. 283 of the
Insurance Act
is to determine
    whether the arbitrator made an error of law. To do that, the director (or the
    directors delegate) examines the reasoning and the process undertaken by the
    arbitrator, the conclusion she reached on the interpretation of the section and
    her application of the evidence to the provision as interpreted. The director
    determines whether the arbitrators decisions of law, including statutory
    interpretation, are correct. However, his decision need only be reasonable.

[29]

The
    delegate began by referring to the five-day hearing that was held by the
    arbitrator and to her decision. The arbitrator found that Pastores impairment
    did not qualify as a catastrophic impairment under s. 2(1.1)(f) of the
SABS
because her combination of impairments did not reach the required threshold of
    55 per cent impairment of the whole person in accordance with the
Guides
.
    However, the arbitrator found that Pastore had sustained catastrophic
    impairment under cl. (g) because she had a class 4, marked impairment, in one
    of the four aspects of functioning set out in the
Guides
.

(i)

Avivas arguments before the delegate

[30]

The
    first issue raised by Aviva was its position that the arbitrator erred in law
    by finding that to qualify as a catastrophic impairment due to a mental or behavioural
    disorder under cl. (g), only one of the four aspects of functioning needed to
    be a class 4, marked impairment, rather than all four.

[31]

The
    focus of the submission was the meaning of the word a in the clause, which I
    repeat here for ease of reference:

(1.1)

For the
    purpose of this Regulation, a catastrophic impairment caused by an accident
    that occurs before October 1, 2003 is,



(g)
        subject to subsections (2) and (3), an impairment that, in accordance with
    the American Medical Associations
Guides to the Evaluation of Permanent
    Impairment
, 4th edition, 1993, results in
a
class 4 impairment (marked impairment) or class 5 impairment (extreme
    impairment) due to mental or behavioural disorder. [Emphasis added.]

[32]

Aviva
    submitted that a class 4 or class 5 impairment due to mental disorder was
    unambiguous and meant an overall impairment in all four of the functions:
    activities of daily living, social functioning, concentration and adaptation.
    It argued that had the legislature intended only one area of marked functional
    impairment to be sufficient, it would have said so specifically.

[33]

Aviva
    also made the following five additional arguments about the proper
    interpretation of cl. (g), which the delegate set out: 1) Because Pastores
    physical impairments alone or combined with her psychological impairments were
    not catastrophic under other clauses, it was illogical that her psychological
    impairments alone could be catastrophic under cl. (g); 2) The example provided
    by the
Guides
at p. 14/302 looks at an overall mental impairment
    rather than the rating from a single function, and the
Guides
should
    govern the interpretation of the
SABS
; 3) Because the approach under
    cl. (f) of s. 2(1.1) is to combine physical and mental impairments using an
    overall psychological impairment rating, that dictated that there also had to
    be a combined rating over all four functions under cl. (g); 4) The expert
    evidence before the arbitrator from Dr. Leclair was that the
Guides
required
    an overall impairment rating; and 5) The arbitrator ignored the
CAT DAC
    Guidelines
, which were relevant external evidence that indicated that two
    functions at the marked impairment level were required under cl. (g), not just
    one.

(ii)

Pastores arguments before the delegate

[34]

The
    delegate then set out Pastores response to each of these submissions. Dealing
    first with the meaning of a, Pastore argued that its plain meaning was as the
    singular indefinite article, and in that meaning, it required only a single
    area of marked or extreme functional impairment to qualify as catastrophic.
    This was the meaning that had already been given in a number of arbitration
    decisions and in the decision of Speigel J. in
Desbiens v. Mordini
,
    2004 CanLII 41166 (although in that case, the point was conceded). Pastore
    submitted that this was consistent with the remedial approach and the consumer
    protection objective of automobile insurance, discussed by the Supreme Court of
    Canada in
Smith v. Co-operators General Insurance Co.
, 2002 SCC 30,
    [2002] 2 S.C.R. 129, at para. 11.

[35]

In
    response to the argument that there is a logical inconsistency with cl. (f),
    Pastore argued that each subsection is separate and should be considered
    independently.

[36]

On
    the issue of the direction from the
Guides
, Pastore pointed to the
    fact that the
Guides
do not say one must look at all four functions
    together, nor do they direct how to arrive at an overall rating. Material from
    the American Social Security Administration (SSA) regulations, 20 C.F.R. pt.
    404 subpt. P (1950), was used in the creation of the
Guides
. It was
    Dr. Leclairs evidence that, while two marked impairments are found in the SSA
    regime,
the
Guides
did
    not include the requirement for two marked impairments in the material taken
    from the SSA regulations.

[37]

Pastores
    position was that the
Guides
, as included in the
SABS
, have
    been interpreted by Ontario adjudicators and have developed their own meaning
    within that context. As a result, the experts who testified as to the meaning
    of the
Guides
are not authoritative on their interpretation in the
    Ontario context. In that regard, Dr. Leclair conceded that the CAT DAC
    assessors had a better understanding of the
SABS
than he did.
    Therefore, the arbitrator was correct to prefer the view of the CAT DAC
    assessors to that of Avivas experts. Also, Pastores expert doctors opinion
    was that one marked impairment was sufficient under cl. (g) for a finding of
    catastrophic impairment.

[38]

Finally,
    Pastore argued that the arbitrator correctly found that she was not bound by
    the
CAT DAC Guidelines
.

(iii)

The delegates conclusions

[39]

Having
    set out all of the positions of the parties, the delegate then proceeded to
    address each argument, the first and main one being the interpretation of the
    word a as used in cl. (g). The delegate approached the statutory
    interpretation function first by examining the intent of the legislature based
    on the word used, then by checking the conclusion by testing the meaning
    against the accepted remedial purpose of the legislation.

[40]

The
    delegate first went to the
Concise Oxford Dictionary
for its meaning
    of a. Using the dictionary meanings, he found: Consistent with these
    definitions, the word a in clause 2(1.1)(g) of the
Schedule
means
    any or one single marked or extreme impairment out of the four areas of
    functioning, each of these specific areas being addressed in accordance with
    the
Guides
. He observed that, even had the legislature used the
    phrase one single instead of a, one could still have argued that that meant
    one single overall marked impairment. He concluded that for that interpretation,
    the missing term was overall, and that had the legislature intended the
    marked impairment to be overall or across the board, it would have said so.

[41]

The
    delegate then checked this conclusion against the remedial purpose of the
    legislation as required by s. 64 of the
Legislation Act
, 2006, S.O. c.
    21,
[1]
and referred to a number of authorities including
Desbiens
. He
    concluded:

I am persuaded that narrowly interpreting the word a in
    clause 2(1.1)(g) of the
Schedule
to mean an overall rating from all
    four areas of functioning noted on page 14/301 in the
Guides
would
    result, contrary both to the intent and to the plain wording of the
Schedule
,
    in an unjust or unacceptable result of depriving much needed enhanced health
    care benefits to accident victims most likely in greatest need.

[42]

The
    delegate then proceeded to address each of Avivas specific arguments. He made
    the following findings:

(1)

Aviva conceded in oral argument that the statutory language was
    ambiguous and that the
Guides
do not state that they require an
    overall assessment of marked impairment for a catastrophic impairment
    designation under cl. (g).

(2)

The
Guides
give one example where an overall impairment
    rating is used. To the extent that the example is viewed as in conflict with
    the term a in cl. (g), the wording of the
Insurance Act
and of the
SABS
take precedence. As stated by Mackinnon J. in
Arts (Litigation Guardian of)
    v. State Farm Insurance Co.
(2008), 91 O.R. (3d) 394 (S.C.), at para. 12,
    [t]he Guides were clearly not designed by the AMA for the purpose directed by
    the Ontario Legislature.

(3)

The delegate rejected the argument that allowing a single, marked
    impairment to be catastrophic under cl. (g) would be inconsistent with cl. (f),
    which uses an overall impairment rating for the whole person. The argument
    ignores the disjunctive separation of the clauses by or and the fact that
    there is no statement that meeting the criteria of cl. (f) is a prerequisite to
    meeting any of the other definitions of catastrophic impairment. As an example,
    the delegate referred to a catastrophic impairment under subclause (e)(i),
    which is a brain impairment defined in terms of a specific Glasgow Coma Scale
    score on a test taken a reasonable time following the accident. The designation
    applies whether or not the person meets the requirements of cl. (f).

(4)

The delegate acknowledged that Pastore did not meet the 55 per cent
    whole person impairment level required in cl. (f) (it was 49 per cent, adding
    her physical injuries to her psychological impairment). He was not persuaded,
    however, that this was an inconsistency that required him to give a narrow
    interpretation to cl. (g).

(5)

In rejecting the notion of inconsistency between subsections, the
    delegate noted that cl. (f) calls for combining impairments while cl. (g) does
    not. Further, although cl. (g) requires that the impairment be due to a mental
    disorder, the language of the clause does not limit the manifestations of the
    impairment to psychological ones. The manifestations, such as the activities of
    daily living, can be multi-faceted.

(6)

The delegate found that experts in this case gave evidence before
    the arbitrator as to how to interpret the Act and the
SABS
which was
    beyond their expertise. Their job was not to usurp the function of the
    adjudicator.

(7)

Finally, the delegate noted that the
CAT DAC Guidelines
referred to in argument were a) not before him, and b) not the current ones as
    of the date of the accident. He also noted that the recommendation in the
CAT
    DAC Guidelines
requiring two functions at the marked level for a
    catastrophic impairment designation was in fact inconsistent with Avivas
    position that not just two, but an overall assessment of marked impairment was
    required. On those bases, the delegate rejected Avivas submission that the arbitrator
    erred in law by not deferring to the
CAT DAC Guidelines
.

(b)

The reasonableness of
    the delegates conclusions

[43]

I
    have described the delegates reasons for decision in some detail in order to
    demonstrate that they are thorough and address every issue raised by the
    parties. The decision is transparent and intelligible in its reasoning process.
    Finally, the conclusion that the word a in cl. (g) requires only a single
    function from the
Guides
to be at the marked impairment (class 4)
    level in order to qualify as catastrophic impairment, is certainly within the
    range of possible, acceptable interpretations.

[44]

In
    reaching the opposite conclusion, the Divisional Court did not have the benefit
    of this courts decision in
Kusnierz v. Economical Mutual Insurance Co.
,
    2011 ONCA 823, 108 O.R. (3d) 272, the majority relying instead on the trial
    judges decision which was reversed by this court. In that case, this court (at
    para. 25) approved the view expressed by Spiegel J. in
Desbiens
, that
    the definition of catastrophic impairment was intended by the legislature to
    be inclusive and not restrictive. In
Kusnierz
, the issue was whether
    psychological impairments could be quantified under cl. (g) and combined with
    physical impairments under cl. (f) to reach a 55 per cent whole person
    impairment. This court held that there was nothing preventing such a
    combination and that it would meet the intent of the
SABS
to do so.
    The court noted that counsel had advised that the number of extra cases from
    such combinations would be small.

[45]

The
    majority of the Divisional Court rejected the delegates conclusion on several
    bases by applying the correctness standard of review. They were also of the
    view that his decision was not reasonable, for the same reasons. The majority
    mainly relied on what it viewed as the dual purpose of the
SABS
: not
    only to help people severely hurt in car accidents, but at the same time, to
    limit the expenses and costs of providing benefits to injured people.

[46]

While
    the majority may be correct that the legislation is structured to give the
    enhanced compensation only to those whose injuries have had a catastrophic
    effect on their lives and to limit payments to others less severely affected,
    that is achieved by adhering to the words used in the legislation, properly
    interpreted in context, particularly by those administrative decision-makers
    who interpret their home statute with expertise and experience. Those
    administrative decision-makers and this court have stated that the intent of
    the legislature is to give the phrase and concept of catastrophic impairment an
    inclusive and not a restrictive meaning.

[47]

Much
    of the argument by the respondent is focused on its position that the
Guides
and the
CAT DAC Guidelines
require an overall class 4 impairment for a
    claimant to qualify as catastrophically impaired.

[48]

While
    the
Guides
are specifically referred to in the
SABS
, they are
    silent on the number of functions required at the marked impairment level for
    an overall assessment of marked impairment. The majority of the Divisional
    Court was concerned that the delegate did not give effect to an example in the
Guides
in which the evaluator found marked impairment overall. First, I note that in
    the example, only two of the four functions were at the marked impairment
    level, not all four. Second, because it is just an example, it does not
    preclude other examples where an overall finding of marked impairment could be
    based on only one function at the marked impairment level. The text of the
Guides
is silent on how many functions at class 4 are required to qualify an
    impairment as catastrophic.

[49]

As
    for the
CAT DAC Guidelines
, their stated purpose is for use by the DAC
    assessors. It is unclear to what extent they were intended to assist
    arbitrators and the director. In any event, in this case both the arbitrator
    and the delegate did consider the
CAT DAC Guidelines
, but concluded
    that they did not assist. It appears that the arbitrator was working with a
    version that was no longer applicable when the accident occurred, and that the
    applicable version does not state a minimum number of functional domains to be
    at the marked or extreme level to amount to a catastrophic impairment.
[2]

[50]

In
    my view, 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.

Issue 3: Was the decision of the delegate
    that it was not necessary to remove from consideration all physical sources of
    pain in conducting the assessment for the purposes of s. 2(1.1)(g), a
    reasonable one?

(a)

The delegates
    reasons

[51]

Again
    the delegate began his reasons by setting out the issue raised by Aviva: that a
    lot of the pain that Pastore suffered from the accident was a result of the
    physical injuries to her ankle and knee and should not be included as due to
    her mental disorder. The delegate referred to the
Guides
, which state
    that in determining whether pain is a symptom of a mental impairment, the
    assessors must consider whether all possible somatic causes of the pain have
    been eliminated by careful, comprehensive medical examinations. Aviva argued
    that Pastores limitations were not caused by her mental disorder but that it
    was the other way around: her depression and anxiety came from her limitations.

[52]

The
    delegate reviewed the evidence of the doctors at the hearing. Pastores
    psychiatrist found that she had an Adjustment Disorder with Depressed Mood and
    that psychological factors played a significant role in her chronic pain
    issues. He diagnosed Pain Disorder Associated with Psychological Factors.

[53]

Aviva
    argued that the pain from physical sources had already been counted in the
    assessment and could not be counted twice. The arbitrator had stated that she
    agreed with the CAT DAC assessor that it was not possible to factor out the
    impact of any such discrete physical impairments and associated pain
    limitations, and that any impairment rating should incorporate both on a
    cumulative basis. Aviva submitted that this was an error and that the
    arbitrator should have determined whether the rating would have been lower on
    activities of daily living if only the psychological impairments were
    considered.

(i)

The delegates conclusions

[54]

The
    delegate noted that cl. (g) does not refer to mental or behavioural
    impairment, but rather to impairment due to mental or behavioural disorder.
    In other words, it calls for a diagnosis of a mental disorder, then a causal
    analysis from the disorder to the impairments. Therefore, the issue was the
    meaning to be given to the phrase due to. Did it mean due solely to or as
    a contributing cause? The delegate referred to the Supreme Court of Canada
    decision in
Resurfice Corp. v. Hanke
, 2007 SCC 7, [2007] 1 S.C.R. 333,
    a negligence case in which causation was discussed and the but for test,
    rather than the material contribution test, was affirmed as the basic test
    for determining causation.
[3]

[55]

The
    delegate then turned to the decision of the Court of Appeal in
Liu

v.
    1226071 Ontario Inc.
, 2009 ONCA 571, 97 O.R. (3d) 95, a case that dealt
    with s. 2(1.1)(e)(i), the brain injury impairment. In that case, the court held
    that the statutory test was legal and not medical and involves the claimant
    meeting the statutory test, whether or not there are other indicia that may
    speak against catastrophic impairment in a non-statutory context.

[56]

The
    delegate concluded, applying that instruction, that there was no statutory
    requirement to dissect the mental disorder into constituent parts. Furthermore,
    a disorder is not an impairment, so that it is the disorder that must be mental,
    not the impairment.

[57]

The
    arbitrator had found that Pastore was diagnosed with a disorder recognized in
    the DSM-IV-TR: Pain Disorder Associated with both Psychological Factors and a
    General Medical Condition. The arbitrator drew the causal conclusion that it
    was the impact of Pastores emotional, behavioural and mental disorders that
    significantly impeded her daily living tasks and that the resulting impairment
    fell within class 4, marked impairment.

[58]

The
    delegate again referred to the
Concise Oxford Dictionary
for the
    definition of due to, which included because of, owing to. He found there
    was ample support in the record for the arbitrators causal conclusion. He then
    stated that based on the arbitrators factual finding of causation, Pastore met
    the statutory definition of catastrophic impairment.

(b)

The reasonableness of
    the delegates conclusion

[59]

Again,
    applying the
Dunsmuir
test for reasonableness, the delegate engaged in
    a full and logical analysis of the issue. He understood the problem, he addressed
    the arguments made, he referred to case law of this court and of the Supreme
    Court of Canada and he arrived at a conclusion. The Divisional Court found that
    his conclusion was beyond his jurisdiction and also that it was unreasonable:
    not within a range of possible acceptable outcomes.

[60]

As
    discussed above, the delegate did not act beyond his jurisdiction. The issue
    for this court is whether the conclusion reached by the delegate, upholding the
    arbitrator and the CAT DAC assessors, was an unreasonable one.

[61]

The
    Divisional Court again found that the Delegate did not follow the
Guides
on this issue and that because the
Guides
form part of the legislated
    assessment process, there is no option to deviate from them.

[62]

The
    portion of the
Guides
in question on this issue is found under the
    subheading Pain within the heading Special Impairment Categories. The issue
    discussed in this subsection is whether pain is a symptom of a mental disorder.
    It states the following:

Establishing that pain is or is not a symptom of a mental
    impairment may be a difficult and complex task. Pain that presents only as a
    symptom of a mental disorder is rare. The following guidelines may be useful in
    determining whether pain is a symptom of a mental impairment. (1) All possible
    somatic causes of the pain have been eliminated by careful, comprehensive
    medical examinations. (2) Some significant emotional stressor has occurred in
    the patients life that may have acted as a triggering agent, and the stressor
    and the pain have occurred in a reasonable sequence. (3) Evidence exists of a
    mental disorder other than a conversion-related one, and the pain may be a
    symptom of the former; for example, delusional pain may occur in a patient who
    has subtle paranoid disorder.

Assessing impairment related to pain is difficult, and the
    process is not as clearly and precisely defined as with some kinds of
    impairments. Therefore, determinations about difficult and borderline cases in
    this category should be made through a multidisciplinary, multispecialty
    approach, in which physicians who are knowledgeable about the different body
    systems are involved as needed.
[4]

[63]

This
    passage states that because it is rare for pain to be a symptom only of a
    mental disorder, such pain must be carefully assessed. In order to determine
    whether pain is a symptom of a mental disorder, the assessor needs to remove
    from consideration, to the extent possible, any physical causes. In difficult
    and borderline cases, the
Guides
direct that this should be done using
    a multi-disciplinary approach.

[64]

In
    fact, that appears to be exactly what occurred in this case. The DAC assessment
    was conducted by a multi-disciplinary team consisting of a physiatrist, a
    psychologist, an occupational therapist and a psychiatrist, who each conducted
    a clinical assessment of Pastore. In his part of the report, the psychologist
    stated  (at p. 66):

Given the extent of interaction between her recognized physical
    and behaviourally based pain disorder, it is not possible to
factor out
the impact
    of any such discrete physical impairments, and associated pain limitations for
    purposes here. As such, the rating below incorporates these factors on a
    cumulative basis consistent with the recognized Pain Disorder.

[65]

The
    arbitrator heard from Dr. Leclair, who directly challenged the conclusion of
    the DAC report, based on his view that the primary reason for Pastores
    functional limitations was related to her physical impairments. But the
    arbitrator did not accept Dr. Leclairs view. Her opinion was that the proper
    approach was to focus on how the mental part of an overall condition or
    impairment impacts the various spheres of function. The experience of pain and
    a diagnosis of Pain Disorder falls properly within this examination.

[66]

The
    arbitrator agreed with the DAC assessors that it was not possible to factor out
    the impact of discrete physical impairments and associated pain limitations.
    She also agreed that the impairment rating had to be cumulative. The arbitrator
    concluded that the impact of Pastores well-documented emotional, behavioural
    and mental difficulties on her daily functioning resulted in a marked
    impairment of those functions.

[67]

In
    my view, the assessors and adjudicators applied the
Guides
in their
    approach to determining whether Pastores functional impairments were due to
    her diagnosed mental disorder. The
Guides
acknowledge how difficult it
    is to separate out pain from physical causes and they suggest a
    multi-disciplinary approach. That approach was taken, but the assessors were
    not able to factor out physical causes of pain and therefore took a cumulative
    approach.

[68]

In
    his decision, the delegate approved that approach. In my view, his decision to
    do so was a reasonable one; it was within a range of reasonable, acceptable
    outcomes. The diagnosed mental disorder was Pain Disorder Associated with
    Psychological Factors and a General Medical Condition. Because the mental
    disorder itself involves pain and includes pain associated with a general
    medical condition, in this case it is certainly reasonable to include pain from
    the general medical condition to the extent that such pain is connected with
    the diagnosed mental disorder.

[69]

A
    further argument that was raised on this issue was that there could be double
    counting of the pain impairment under clauses (f) and (g) in certain cases
    because, following this courts decision in
Kusnierz
, the impairments
    under cl. (g) can be put together with physical impairments for a whole body
    impairment total under cl. (f). Since that did not occur in this case, the
    possibility of double counting under cl. (f) does not change the reasonableness
    of the delegates conclusion. In a case where that is a concern, the assessors
    and adjudicators may have to address the issue directly.

Issue 4: Section 15 of the
Charter

[70]

The
    appellant sought to raise an argument under s. 15 of the
Charter
if
    the court agreed with the Divisional Court on the issue of the treatment of
    pain from physical sources in analysing impairment due to a mental disorder. As
    I would allow the appeal from the Divisional Court on that issue, there is no
    need nor would it be appropriate to address the
Charter
issue.

D.

Result

[71]

In
    the result, I would allow the appeal, set aside the decision of the Divisional
    Court and reinstate the order made by the delegate. If the parties cannot agree
    on costs, brief written submissions may be provided.

K. Feldman J.A.

I agree M. Rosenberg J.A.

I agree K. Swinton J. (
ad hoc
)

Released: K.F. September 27, 2012





[1]
Subsection 64(1) of the
Legislation Act
reads: (1)
An
    Act shall be interpreted as being remedial and shall be given such fair, large
    and liberal interpretation as best ensures the attainment of its objects.
    Subsection 64(2) reads: Subsection (1) also applies to a regulation, in the
    context of the Act under which it is made and to the extent that the regulation
    is consistent with that Act.



[2]
The arbitrator found that the
CAT DAC Guidelines
required two marked
    impairments for a catastrophic determination. However, as the delegate noted,
    the
CAT DAC Guidelines
relied on by Aviva to support this position
    were out of date at the time of Pastores accident. The revised
CAT DAC
    Guidelines
that were in force at the time of the accident do not state a
    minimum number of functional domains that must be at the marked impairment
    level for a class 4 impairment to be found.



[3]
The Supreme Court of Canada recently further explained
Resurfice
in
Clements
    v. Clements
, 2012 SCC 32.



[4]
It appears, as noted by the delegate, that the
Guides
sometimes use
    the term impairment and the term disability or disorder interchangeably, which
    causes some confusion.


