Top 5 Civil Appeals From The Court Of Appeal (October 2012)

1. Pastore v. Aviva Canada Inc ., 2012 ONCA 642 (Rosenberg and Feldman, JJ.A and Swinton, J. (ad hoc)), September 27, 2012

2. Doobay v. Diamond, 2012 ONCA 580 (Lang, Epstein and Hoy, JJ.A.), September 7, 2012

3. Aragona v. Aragona, 2012 ONCA 639 (Cronk, Epstein and Pepall, JJ.A.), September 26, 2012

4. Schembri v. Way, 2012 ONCA 620 (Feldman and Hoy, JJ.A and Spence J. (ad hoc)), September 20, 2012

5. Siena-Foods Limited v. Old Republic Insurance Company of Canada, 2012 ONCA 583 (Laskin, Sharpe and Epstein, JJ.A.), September 10, 2012

   1. Pastore v. Aviva Canada Inc., 2012 ONCA 642 (Rosenberg and Feldman, JJ.A and Swinton, J. (ad hoc)), September 27, 2012

   This case is an important one to the entire personal injury and insurance law bar, and to every Ontarian; it applies to anyone injured in an automobile accident, whether as a pedestrian, passenger, or driver.

   Ontario motorists carry automobile insurance under a mandatory private auto insurance regime, in which certain no-fault benefits are provided under a standard government pre-approved auto policy. Automobile accident victims are entitled to certain no-fault benefits, also known as "statutory accident benefits," regardless of fault. Individuals with the most serious of injuries are eligible to receive an enhanced level of accident benefits. The term used in the Statutory Accident Benefits Schedule ("SABS") to distinguish those who are eligible for the enhanced benefits, from other accident victims, is "catastrophic impairment". In Pastore, Feldman J.A. clarified one of the several tests that define who suffers a "catastrophic impairment".

   While there are several different ways that one can be found to suffer from a catastrophic impairment, Pastore deals with the test applicable for "mental or behavioural disorders". Ms. Pastore was a pedestrian who was hit by a car while crossing the street. An assessment of her accident-related mental or behavioural disorders was carried out by reference to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition, as mandated by the SABS. The Guides direct the assessment of functioning in four categories of functional limitation:

   Activities of daily living; Social functioning; Concentration, persistence, and pace; and Deterioration or decompensation in work or work-like settings. Ms. Pastore's initial application for a catastrophic impairment designation was denied by Aviva Canada. The dispute was heard before an arbitrator of the Financial Services Commission of Ontario. Her application was accepted by the arbitrator.

   One of the issues raised by Aviva Canada at arbitration was whether the test required an overall assessment of "marked impairment" or "extreme impairment" in all four of the categories described above, or whether a marked/extreme impairment in a single category alone was sufficient. The arbitrator was satisfied that one marked impairment alone was enough to comply with the Guides' approach to catastrophic impairment.

   On appeal, the Court of Appeal addressed the appropriate standard...