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Auto - Insurance - 'Insured Person'. Kellerman-Bernard v. Unica Insurance Company
In Kellerman-Bernard v. Unica Insurance Company (Div Court, 2023) the Divisional Court considered an interesting SABS appeal where the insured, whose son was injured in a bicycle accident, herself applied for 'catastrophic impairment' SABS coverage on the basis of emotional and psychological injuries. She was denied coverage both at the LAT appeal and a further LAT reconsideration on grounds that she was not categorically-eligible, but reversed at the Divisional Court on a statutory interpretation argument.
In these quotes the court considers the statutory definition of 'insured person':[4] For the reasons that follow I would allow the appeal. In summary, the interpretation adopted by the LAT ignores the plain and ordinary meaning of the legislation in question, focuses on one phrase in that legislation without considering the phrase in its full context and defeats rather than promotes the accepted purpose of the SABS.
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[5] This appeal involves the interplay between three provisions in the SABS- s. 3 (1), which defines who is an “insured person”; s. 45(1), which provides that an “insured person” is entitled to apply for a catastrophic impairment designation and s. 3(2) which sets out the criteria necessary to qualify for such a designation. The full text of these provisions is set out below.
Section 3(1)
[6] The relevant portions of section 3(1) provide as follows:“insured person” means, in respect of a particular motor vehicle liability policy,
(a) The named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of a named insured or of his or her spouse.
(i) If the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or
(ii) If the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant [7] Section 3(1) sets out two classes of people who are named in the policy who qualify as “insured persons” – named insureds who are actually involved in the accident and named insureds 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 in the accident. The Appellant falls within the second class of “insured persons”. She is named in the policy. She was not directly involved in the accident, but she suffered psychological or mental injury as a result of the fact that her son was directly involved in the accident.
[8] In Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789 at para. 25, the Court of Appeal states:It is well established that the definition of insured person in the [SABS] governs the entitlement to SABS. [9] As previously noted, it is not contested that the Appellant is an “insured person”.
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