In this blog, I’ll talk about one of the ways in which you can obtain a catastrophic impairment designation, where as a direct result of your motor vehicle accident the impairment you sustained results in amputation of your leg or arm, or the total and permanent loss of your arm, or a severe and permanent alteration of prior structure and function involving one or both your legs.

A catastrophic impairment designation places you – an auto accident victim – in the highest level of impairment category available under automobile insurance regulations. While not a benefit itself, a catastrophic impairment designation is the gateway or vehicle to access enhanced benefits, where your policy limits increase to $1 million. All other impairments fell under the non-catastrophic and minor injury category.

If you want to learn more about the companion accident benefits claim, and kickstarting the accident benefits application process, then please click the “link” to read my blog entitled “How to Get Your Accident Benefits Application Started”.

The June 1, 2016 amendments to the Ontario Regulation 34/10: Statutory Accident Benefits Schedule (SABS 34/10), issued under the Insurance Act, R.S.O. 1990, c. I.8, introduced a stricter definition of catastrophic impairment. Section 3.1 was added to the SABS 34/10, which provides a tightening of the criteria for determination of catastrophic impairment. 

One of the changes was the introduction into the SABS 34/10 of the Spinal Cord Independence Measure, Version III (SCIM III), for the determination of the functional ability to walk following a spinal cord injury, as it relates to a severe and permanent alteration of prior structure and function involving one or both legs. I will also discuss a severe impairment of ambulatory mobility as a result of a trans-tibial or higher amputation of a leg, as well as a severe impairment as a result of an amputation of an arm or another impairment that causes the total and permanent loss of the use of an arm.

1. Rudder, A. L. Catastrophic Impairment Law in Canada. 1st ed., LexisNexis Canada Inc., 2020.
2. O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1st, 2010.
3. Ibid.

The stricter definition of catastrophic impairment as it relates to amputation and permanent loss of function can be found subsection 3.1(1)2 of the SABS 34/10, as amended by Ontario Regulation 251/15, which reads as follows:

For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in…:

2. Severe impairment of ambulatory mobility or use of an arm, or amputation that meets the following criteria:
3. Trans-tibial or higher amputation of a leg.
4. Amputation of an arm or another impairment causing the total and permanent loss of use of an arm.

iii. Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 (Mobility Indoors), as published in Catz, A., Itzkovich, M., Tesio L. et al, A multicentre international study on the Spinal Cord Independence Measure, version III: Rasch psychometric validation, Spinal Cord (2007) 45, 275-291 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.   

4. O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1st, 2010, subs. 3.1(1)2
5. O. Reg. 251/15: Statutory Accident Benefits Schedule – Effective September 1st, 2010.
6. O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1st, 2010, subs. 3.1(1)2.
7. Ibid.

As was alluded to earlier, the aforementioned problems with res ipsa loquitur were finally laid to rest in the 1998 Supreme Court of Canada case entitled Fontaine v. Insurance Corporation of British Columbia [1998] 1 S.C.R. 424. This was a case where a widow claimed damages for the untimely death of her late husband, who died as a passenger in a motor vehicle accident during a hunting trip. The driver died in the accident too, plus there were no witnesses, the scintilla of direct or positive evidence had negligible persuasive value, and the circumstantial evidence was weak because the circumstances of the accident, such as the date, time and precise location, were all unknown. Once this case reached the Supreme Court of Canada, one of the primary issues that was addressed at the highest court in the country, was “When does res ipsa loquitur apply?”. 

The Supreme Court of Canada confirmed that res ipsa loquitur is a doctrine that’s no longer relied upon as a distinct and separate component in tort actions of negligence. It also confirmed that historically it was just used as a means to deal with circumstantial evidence, which can be better assessed by the trier-of-fact – a judge, if it’s a judge-alone trial, or the jury, if it’s a judge-and-jury trial – upon carefully weighing the direct or positive evidence with the circumstantial evidence. Furthermore, it confirmed that in any negligence case, even in cases that have traditionally invoked the doctrine of res ipsa loquitur, the burden of proof doesn’t shift to the defendant, but rather remains with the plaintiff, whom must first provide affirmative proof on a balance of probabilities that negligence on the part of the defendant caused his or her accident-related injuries and impairments. In the book entitled The Law of Evidence in Canada (1992) by John Sopinka et al. they described at pg. 81 the effect of the application of res ipsa loquitur, which was adopted by the Supreme Court of Canada in Fontaine v. Insurance Corporation of British Columbia supra, as follows: 

Res ipsa loquitur, correctly understood, means that circumstantial evidence constitutes reasonable evidence of negligence. Accordingly, the plaintiff is able to overcome a motion for a non-suit and the trial judge is required to instruct the jury on the issue of negligence. The jury may, but need not, find negligence: a permissible fact inference. If, at the conclusion of the case, it would be equally reasonable to infer negligence, the plaintiff will lose since he or she bears the legal burden on this issue. Under this construction, the maxim is superfluous. It can be treated simply as a case of circumstantial evidence.

Therefore, the Supreme Court of Canada has confirmed that all res ipsa loquitur means is that circumstantial evidence, even in the absence of direct or positive evidence, is admissible and can constitute reasonable evidence to support a cause of action for negligence against the defendant. Therefore, if you, as the plaintiff: 

• (1) don’t have any direct or positive evidence to establish affirmative proof that the accident, which severely injured you was caused by the defendant’s negligence;

• (2) the thing that caused the accident was under the management of the defendant, or his or her employees, and;

• (3) there is no other reasonable explanation of the cause of the accident,

then there isn’t an automatic prima facie presumption of negligence on the defendant, which shifts the legal burden of proof to the defendant to prove he or she wasn’t negligent. Rather, the effect of the modern application of res ipsa loquitur is that the burden of proof still remains with you, the plaintiff, where in the absence of direct or positive evidence, you’ll have to introduce circumstantial evidence, which, again, can constitute a reasonable evidentiary basis for establishing the defendant’s negligence. 

If, however, the defendant were to bring forth a non-suit motion on the basis that you don’t have a cause of action for negligence due to the absence of direct or positive evidence, then a judge in the Superior Court of Justice would have to determine whether a reasonable trier-of-fact would, from the circumstantial evidence you provided, be able to find an inference of the defendant’s negligence, or put in another way, it wouldn’t be an error in law for a trier-of-fact to find for you – the plaintiff – based on the circumstantial evidence you provided. If the trier-of-fact can find it, then the non-suit motion would be dismissed. So, the trial can proceed, as the matter of law, concerning whether an inference can be drawn from the circumstantial evidence, has been determined by a judge in the affirmative. However, the question of fact, concerning whether the inference of the defendant’s negligence should be drawn, will ultimately be determined by the trier-of-fact at the end of the trial, after all of the circumstantial evidence you provided is properly weighed. 

Therefore, the law in Canada as it relates to the modern application of the doctrine of res ipsa loquitur, is clear. In cases where an inference of negligence could potentially be drawn from the scintilla of evidence available to the the plaintiff, the burden of proof still rests with the plaintiff to present either the direct or circumstantial evidence, or both, to establish on a balance of probabilities that the accident occurred as a result of negligence attributable to the defendant.

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.