Bike accident

Divisional Court: “Fairness and Inclusivity” at the Heart of Ontario’s Accident Benefits Law

Ms. Kellerman-Bernard’s (“NKB”) son was seriously injured in a bike accident. Although NKB did not witness the accident, it traumatized her, resulting in significant psychological and emotional impairments. NKB submitted to her own auto insurer an OCF-19: Application for Determination of Catastrophic Impairment (“OCF-19”)  NKB’s auto insurer disputed her right to submit the OCF-19 and the dispute was adjudicated before the Licence Appeals Tribunal (“LAT”). The LAT adjudicator found that NKB was not entitled to submit an OCF-19 because she was not directly involved in the accident. Following an unsuccessful reconsideration request by NKB to the LAT, she brought an application to the Divisional Court (the “Div Court”) for judicial review of the LAT’s decision. Div Court overturned the LAT and held that NKB is permitted to submit an OCF-19.

In Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423, the Div Court unanimously overturned the LAT, citing its flawed interpretation of the Statutory Accident Benefits Schedule (“SABS”). Writing for the three-judge panel, Justice Sachs examined the disputed scheme under the SABS and held that third parties to accidents, like NKB, are entitled to submit an OCF-19.

SABS Provisions at Issue

The amendments to the SABS that came into effect in 2016 were at issue.  NKB submitted her OCF-19 prior to the amendments.  In its original decision, the LAT relied upon following provisions under the SABS prior to 2016:

  • Definition of ‘insured person’ under s. 3(1); and
  • Qualifying criteria for the designation under s. 3(2) (now repealed).

Subsection 3(1) deems those “who are not actually involved in the accident, but who suffer psychological or mental injury as a result of the fact that their family member was involved” to be insured persons.[1] In light of this, there was no debating that NKB was an insured person under SABS.

Justice Sachs explains that the LAT’s interpretation of s. 3(2) went against the purpose of the SABS – to be “remedial and inclusive” and to “[foster] fairness for people with the most health needs”.[2]

SABS Properly Interpreted

The Supreme Court of Canada (“SCC”) has expressed multiple times that Elmer Driedger’s ‘Modern Rule’ is the proper way to interpret statutes. The Modern Rule demands “reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context” because, according to the SCC, this is the only way to understand legislative intent.[3] Indeed, the LAT reiterated this rule and attempted to follow it.  However, Justice Sachs rejects that attempt because the LAT ignored much of the relevant context surrounding s. 3(2).

The Divisional Court draws attention to s. 45(1) of SABS, which states: “An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.” Had the LAT looked at this straightforward, plainly worded subsection, it would have determined that NKB was eligible to submit an OCF-19; after all NKB 1) is an insured person, and 2) sustained an impairment as a result of her son’s accident.

The LAT was also overly restrictive in its interpretation of s. 3(2) “ …caused by an accident”.  The LAT contextualized this phrase within “the meaning of caselaw that has no application” to NKB’s situation.[4] In those cases, the applicant’s insured status as an insured person was not certain, whereas here, NKB clearly is an insured person. Reading s. 3(2) in its entirety would have given the LAT the necessary context; this section was a list of the kinds of impairments which qualify as catastrophic.  The causation element that the LAT focused on was immaterial.[5]


The interpretive failures amounted to a grave injustice. The LAT contravened the intent and purpose of SABS.  Its problematic statutory interpretation was so restrictive that it would have increased the suffering and economic hardship of applicants like NKB.[6]  For these reasons, the Div Court overturned the LAT and held that NKB is eligible to submit an OCF-19.

This post was co-authored by David Derfel and summer law student Rachel Weitz.


[1] Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423 at para 7 [Unica].

[2] Ibid at para 26.

[3] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 118 [Vavilov].

[4] Unica at para 21.

[5] Ibid at para 22.

[6] Ibid at para 26.