Kaloczi v. Wawanesa Mutual Insurance Company, 2024 ONSC 5665 (CanLII) (Div. Ct)
Reading Time: 4.5 minutes (approx.)
By: Alexandre Doucet
This case stems from an MVA which occurred on October 30, 2016. Following the MVA, Mary Kaloczi, the Appellant, applied for no-fault accident benefits under her policy with Wawanesa Mutual Insurance, the Respondent. No fault accident benefits in Ontario cover medical and rehabilitation expenses, funeral and death benefits, as well as loss of income benefits.
Four years after the MVA, the Appellant applied to the Respondent for a declaration that her mental and behavioral impairments from her MVA met the definition for catastrophic impairment. This declaration would, in effect, significantly increase the benefits while also raising the total amount of funds (or cap) available to the Appellant.
The Respondent denied the Appellant’s catastrophic impairment application. The Appellant then applied to the License Appeal Tribunal (LAT) for a determination on the issue. The Adjudicator concluded the Appellant had failed to establish a catastrophic impairment due to (1) failing to prove she suffered a marked impairment, particularly a mental impairment and (2) failing to demonstrate that the MVA was a necessary cause bringing about her psychological or behavioral impairment.
The Appellant sought reconsideration of the Adjudicator’s decision but on August 25, 2023, the LAT denied her request. The Appellant then sought to have the appeal heard through divisional court, made possible through section 11(6) of the Licence Appeal Tribunal Act, 1999 S.O. 1999, c. 12, Sched. G, which allows an appeal from a decision of the Tribunal to be heard by the Superior Court on a question of law only.
Consequently, the Appellant was forced to adhere to questions of law only and contended that the Adjudicator misapplied the “but for” legal test for causation, committing an error of law. The Appellant alleged that the Adjudicator (1) failed to consider all the evidence presented to her, (2) failed to consider external factors, and (3) ignored the causation findings of two key assessors who opined that the MVA had caused her psychological and behavioral impairments.
The ”but for” test must show that on a balance of probabilities “but for” the defendant’s negligent act the injury would not have occurred (see Clements v. Clements, 2012 SCC 32 para 8). Justice McCarthy wrote on the appeal that there was simply no reason to disturb the Adjudicator’s decision. Her treatment of the evidence was “extensive” (para 17), and it was not an error in law for the Adjudicator to place weight on the absence of any reports of psychological/behavioral issues or the Appellant’s failure to seek treatment for the alleged impairments following the MVA (para 19). It was also not an error in law to consider what other intervening stressors and events might have played a part in the Appellant’s condition (para 20). Lastly, Justice McCarthy wrote that the Adjudicator was alive to the evidence of the two experts, and that she was not required to accept their opinion on causation (para 21). The causation test is a legal, not medical one. The appeal was therefore dismissed.
