Personal Injury Law: Pastore completes trilogy of cases protecting accident victims

By Darcy Merkur

Only one marked or extreme functional impairment due to a mental or behavioural disorder is necessary to qualify accident victims for enhanced catastrophic impairment benefits, the Ontario Court of Appeal ruled in a welcome decision last week in Pastore v. Aviva Canada Inc.


The Pastore case deals with the proper interpretation of the marked or extreme impairment test within the definition of catastrophic impairment under what had been s. 1.1(g) of the Ontario statutory accident benefits schedule (it’s currently s. 3(2)(f)).

The test requires the motor vehicle accident claimant to have suffered “a class four impairment (marked impairment) or class five impairment (extreme impairment) due to mental or behavioural disorder.”

In Pastore, a pedestrian hit by a car suffered a fractured ankle that did not heal properly, resulting in multiple surgeries and major life impacts. When Anna Pastore was assessed for a potential catastrophic impairment, she was diagnosed with various mental or behavioural disorders and consideration was given to the impact they had on the four categories of functional limitation.

The four categories of functional limitation are activities of daily living; social functioning; concentration, persistence, and pace; and deterioration or decompensation in work or work-like settings.

Using the required five-level scale to evaluate the extent of the impacts on these four categories of functional limitation, the assessors concluded that Pastore suffered from a marked impairment, one that “significantly impedes useful functioning,” in her activities of daily living. In the other three spheres, she qualified as having only a moderate impairment in that she had some, but not all, useful functioning.

The assessors concluded that this scenario, with one marked impairment, still qualified Pastore as having suffered a catastrophic impairment.

While the Ontario Divisional Court concluded that an overall impairment at the marked or extreme level was necessary and that one marked impairment was not usually enough, the Ontario Court of Appeal disagreed and concluded that an impairment in one of the four spheres would suffice.

Justice Kathryn Feldman, writing for the court, offered her thoughts when she stated: “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 behaviour disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision.”

The Ontario Court of Appeal also addressed the role of pain within the marked or extreme impairment test. The court concluded that a cumulative approach should be taken when it is not possible to factor out the impact of discrete physical impairment and associated pain limitations.

In other words, pain can be considered within the marked or extreme test in cases in which the pain is not clearly related to physical causes and may be related to a mental disorder.

As a result, the Ontario Court of Appeal set aside the decision of the Divisional Court and reinstated the original order made by the Financial Services Commission of Ontario arbitrator.

Plaintiffs’ personal injury lawyers throughout Ontario are applauding the well-reasoned and clear decision of the Ontario Court of Appeal. Insurers, meanwhile, are once again disappointed that their attempt to adopt an interpretation that would raise the catastrophic impairment threshold has been thwarted.

The Pastore decision is the third in a trilogy of key rulings by the Ontario Court of Appeal relating to the important definition of catastrophic impairment. All three reversed lower court decisions (see Kusnierz v. Economical Mutual Insurance Co., Liu v. 1226071 Ontario Inc., and now Pastore).

In Smith v. Co-operators General Insurance Co., the Supreme Court of Canada made it clear that consumer protection is a key goal of automobile insurance. The reasoning of the Ontario Court of Appeal in the trilogy of cases mentioned above strongly supports that important goal.

The trilogy of cases will go a long way to protect accident victims in Ontario, at least until the Ontario government makes its expected announcement regarding major changes to the definition of catastrophic impairment. Hopefully, any announced changes will support, rather than challenge, the decisive reasoning in the trilogy of cases.



Darcy Merkur is a partner at Thomson Rogers in Toronto who practises plaintiff-side personal injury litigation, including motor vehicle matters. He is a certified specialist in civil litigation and the creator of the personal injury damages calculator.