When the Ontario Superior Court of Justice released the decision in Kusnierz v. The Economical Mutual, the Law Times described it as raising the "ire of plaintiffs’ bar." Justice Lauwers' holding directly contradicted the practice in place since Desbiens v. Mordini of allowing motor vehicle accident victims to combine physical and psychological ratings to get a Whole Person Impairment (WPI) rating of 55% or higher to achieve a catastrophic designation under s. 2(1.1)(f) of the Statutory Accidents Benefits Schedule (SABS).
Although some defence counsel were confident that the decision would be upheld on appeal, the Ontario Court of Appeal reversed the decision on Friday, which have some predicting shockwaves through the industry.
Both the trial judge and the Court of Appeal agreed that the heart of the issue was an exercise in statutory interpretation. Justice Lauwers employed a purposive analysis, relying on the Court of Appeal's holding in Bapoo v. Co-operators general insurance, which instructs courts to use a modern approach that looks at a legislative provision in its total context. He acknowledged that a legislative gap could result in unfairness in eligibility for catastrophic impairment benefits, but indicated a highly deferential approach that this was best addressed through the legislature.
However Justice MacPherson of the Court of Appeal took a different position,
 The trial judge noted that the SABS legislator could have, but did not, expressly provide for the combination of physical and psychiatric injuries. With respect, the opposite is also true. The legislator could have, but did not, expressly forbid the combination of physical and psychiatric injuries. Without qualification either way, the plain language of cl. 2(1.1)(f) seems to suggest that combination of both kinds of impairment is possible.
MacPherson J.A. rejected Justice Lauwers' use of the implied exclusion approach to statutory interpretation, or “expressio unius est exclusio alterius." Randal Graham in his book, Statutory Interpretation: Theory and Practice, explains some of the problems with this maxim,
…the phrase “expressio unius est exclusio alterius" finds its way into countless court decisions. Unfortunately, many judicial references to this particular legal gem come in the form of cryptic warnings counselling against the use of the maxim.
…where a statute fails to mention a specific case or item, we may have grounds to presume that the case or item was excluded on purpose rather than through the drafter's inadvertence.
…A well-founded application of the expressio unis maxim calls for some additional indication that the excluded case or item was omitted by the drafter on purpose.
Graham continues to explain in Theory and Practice why the expressio maxim is often flawed. It presumes that legislative drafters never use extraneous language, and presumes "consistent expression," namely that the same word in different parts of the statute necessarily expresses the same idea.
In his compendium text, Statutory Interpretation: Cases, Text and Materials, Graham explains some of the background behind the admissibility of parliamentary materials,
If "legislative intent" is truly the key to statutory interpretation, it seems sensible that any materials generated during the debating, and enacting process should be admissible for the purpose of establishing the meaning of a statute… Surprisingly, the "parliamentary history" of an enactment… has traditionally been considered inadmissible for the purpose of proving the lawmaker's intention… Regardless of the many policies weighing against the use of parliamentary history in statutory interpretation, the traditional rule (requiring the exclusion of such evidence) has now been abandoned in Canada.
[See Rizzo & Rizzo Shoes Ltd. (Re)]
And yet the Court of Appeal expressly refused to review fresh evidence of the appellants on the legislative purpose of the catastrophic definition. Justice MacPherson applied the test in Palmer v. The Queen:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial…
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Although transcripts of the hearings of the Standing Committee Report and the Legislative Assembly debates on Bill 59 were deemed credible by Justice MacPherson, they were not considered relevant, would not have affected the results, and could have been properly submitted at trial. Instead, he reviewed the use of impairment throughout the SABS and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) and rejected the use of expressio in this context by noting a number of exceptions where "consistent expression" could not be demonstrated,
 In my view, the Guides’ examples are illustrative, rather than exhaustive. In at least five places, the Guides recommend that physicians refer to Chapter 14 in assessing the total impairment of persons suffering from both physical and behavioural/mental impairments. These recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account. There is nothing in the text of the Guides to suggest that this principle should be limited to persons with mammary gland or disfigurement problems. Accordingly, it seems to me that combining physical and psychiatric impairments can be done “in accordance with” the Guides.
Given the significance of this decision we can expect to hear quite a bit more on it, and possibly see legislative changes clarifying some of the ambiguity in the SABS in the future. Here are some of the summaries and commentaries of the appellate decision to date:
- Oatley, Vigmond (interveners in the case, on behalf of the Ontario Trial Lawyers Association (OTLA))
- Smitiuch Injury Law
- Thomson Rogers
- Daniel Strigberger of Miller Thomson at the Ontario Insurance Litigation Blog
- Alexander Rozine of D'Angela, Fox, Vanounou LLP at Canadian Health Law (a new site I just launched)