Accident Benefits and Catastrophic Brain Injury – a Judicial Review

In 2013, the Financial Services Commission of Ontario made some changes and clarifications with respect to motor vehicle accident benefits available under the province’s no fault legislation. Among other things, the legislation limits accident benefits to a specific maximum amount unless it can be shown that the injury is very serious and permanent.

When it comes to brain injuries, many times it is difficult to pinpoint or assign a specific level of injury or residual disability. In the case of someone in a coma, a specific test called the Glasgow coma scale is the standard for assessing the severity of a brain injury as specified in the legislation. In a case that recently came under judicial review in the Divisional Court, an insurance company attempted to discount the results of the Glasgow coma scale with respect to an Ontario accident victim, saying the test was inaccurate because:

• It was taken after the victim had received drug treatments that impaired his level of awareness
• The test was done more than 24 hours after the accident, which they claimed was beyond a reasonable amount of time

The reviewers disagreed. In the ruling issued by three justices, they wrote, “The legislature could not have intended that seriously injured individuals would fail to receive a catastrophic impairment designation simply because their [Glasgow coma] score was confounded by the severity of their other injuries or treatment.”

Legislation and Application

New legislation is always itself on trial in that – as this case illustrates – various parties to a legal action will attempt to interpret it to their advantage since there are no precedents to guide a judge. Even if something seems clear cut, there are always attempts to put matters into terms that favour one side or another. Judges, as in this case, are to be guided by what the intent of the law is, but that too can be open to interpretation.

You need someone in your corner. Contact Petrillo Law today by calling (905) 949-9433 for a free consultation with an experienced motor vehicle accident lawyer. We look forward to hearing from you.