Below we list examples of Ontario case law that deal with the terms “serious disorder” and “seriously impair”.

(Be sure to read further information regarding these terms, here).

When reading these examples, it is important to remember that to fulfill the description of the controlled act, the client’s ‘serious disorder’ does not actually have to ‘seriously impair’ anything – it is only required that it ‘may’ do so.

The excerpts below are  taken from Ontario Coalition of Mental Health Professionals March 2007 document entitled “EXERCISE: What is the Controlled Act of psychotherapy and who should be authorized to perform it?”

Ontario Cases:

“1.  In Meyer (Meyer v. Bright (1993), 110 D.L.R. (4th) 354. Leave to appeal to the SCC dismissed: [1993] S.C.C.A. N0. 540.), the Ontario Court of Appeal set the test for “serious impairment” under the Insurance Act  as:

  • Impairment which causes substantial interference with the ability of the injured person to perform his or her daily activities or to continue his or her regular employment.
  • This definition has been applied repeatedly in other cases and is the leading test case for determining whether the threshold of “serious impairment” has been met under the Insurance Act.

Other Ontario cases that have relied on Meyer illustrate that the threshold for “serious impairment” is significantly lower than the standard for “mental disorder” in Alberta. For example:

2.  In Sasso (Sasso v. Copeland , 2005 CanLII 45205 (ON S.C.) ), the injured person suffered from shoulder pain, personality changes, increased anxiety, irritability and moodiness, insomnia, and difficulty relating to others as a result of the motor vehicle accident. The Court found that these symptoms were unlikely to subside and had a significant effect on Sasso’s work and personal life and that he was “seriously impaired”.

3.  In Jones (Jones v. Mazzola, 2005 CanLII 47599 (ON C.A.)), the injured person suffered neck and back pain, headaches, and sleeplessness after the motor vehicle accident. While Jones’s job performance had not suffered, her injuries impacted on her ability to do household chores, share activities with her children and enjoy a social life and she was found to be “seriously impaired”. On appeal, the Court of Appeal reaffirmed that where a person’s symptoms allow her to perform her daily routines, but make it so difficult or unpleasant, the “serious impairment” threshold is met.

4.  In May (May v. Casola [1998] O.J. No. 2475 (C.A.)), the injured person had permanent symptoms such as sleep disorder, severe neck pain and headaches, dizziness and nausea. Even though she was able to perform all her daily activities, she was found to have a “serious impairment”.

5.  In Hartwick (Hartwick v. Simser, 2004 CanLII 34512 (ON S.C.)), the Ontario Supreme Court summarized the “serious impairment” test under the Insurance Act  as follows:

  • Those who can carry on daily activities but are subject to permanent symptoms such as sleep disorders, severe pain, headaches, that have a significant effect on the enjoyment of life as a result of a motor vehicle accident.
  • What is serious to some will not be serious to others, thus, what is serious must be resolved on a case by case basis.
  • Those who have resumed full-time employment, albeit in a reduced capacity or in a new area from that performed by the injured person pre-accident.
  • Those who are unable to socialize in any meaningful way with friends and former customers or business associates, provided that such activity amounted to something more than trivial importance to the injured person.
  • Substantial interference in the ability to carry on usual functions in a pain-free manner, including household functions; inability to maintain intimacy with a partner or spouse; inability to enjoy usual family relationships; and inability to sleep through the night without interference from pain.

It is clear that the “serious impairment” test under Ontario’s Insurance Act, to determine whether a person injured in a motor vehicle accident is permitted to sue for damages, is significantly lower than the “mental disorder” test under Alberta’s Mental Health Act.  None of the Ontario cases involved serious issues of self-harm, suicidal intent, paranoid delusions, or other substantial mental health issues that were required to meet the Alberta test.

While serious issues such as substance abuse and antisocial personality disorder failed to meet the Alberta test, the Ontario test is met where the patient is unable to perform household chores or sleep through the night. This is clearly a lower threshold.

In addition, other cases under Ontario statutes have defined the threshold for “serious disorder:

6.  In a child protection case (Catholic Children’s Aid Society of Hamilton v. S. M., 2003 CanLII 2295 (ON S.C.), the Court accepted a medical diagnosis of post-traumatic stress disorder as indicative of a “serious disorder”.

7.  In a professional misconduct trial for damages (P. D. v. Allen [2004] O.J. No.3042), the Court accepted a psychiatrist’s description of alcohol dependence disorder as a “serious disorder”.

8.  In sentencing an accused in a fraud case (R. v. Dinardo [201] O.J. N0. 2839), the Court accepted the diagnosis by a forensic psychiatrist of “pathological gambling” as comparable to alcohol and substance abuse and addiction in its character and disabling effect. The Court found that it was a significant mitigating factor which led to a non-incarcery sentence for theft.

In summary, the Ontario “serious disorder” threshold is significantly lower than the Alberta “mental disorder” threshold. Addiction to alcohol, drugs, and gambling meet the Ontario threshold but did note meet the threshold in the Alberta cases.”

The following excerpt is taken from Ontario Coalition of Mental Health Professionals March 28th, 2007 document entitled “Response to Bill 171, Schedule Q Psychotherapy Act, 2006.”

“Counsel reviewed Ontario case law where the Courts interpreted the word “serious” with respect to another statute, the Insurance Act. In defining what constitutes “serious impairment” in insurance claims to determine who can sue for damages after a motor vehicle accident, the Ontario Courts have set a significantly lower threshold than in Alberta. The test was met where the person is: unable to sleep through the night, perform household chores, socialize in a meaningful way, and perform pre-injury job (though fully employed again).

The Ontario case law pertaining to the Insurance Act is significant in light of the legal presumption of consistent expression across statutes. How the Courts have interpreted “serious impairment” in the context of the right to sue in insurance claims is relevant to how it may interpret “serious disorder” that “seriously impairs” in the context of the proposed Psychotherapy Act, 2006.

Additionally, here is the definition of “serious mental illness” as provided to the US Congress:

“Adults with a serious mental illness are persons: (1) age 18 and over, (2) who currently or at any time during the past year, (3) have a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet diagnostic criteria specified within the Diagnostic and Statistical Manual of Mental Disorders (DSM)-III-R, (4) that has resulted in functional impairment which substantially interferes with or limits one or more major life activities…  All of these disorders have episodic, recurrent, or persistent features; however, they vary in terms of severity and disabling effects.”
(Federal Register Volume 58 No. 96 published Thursday May 20, 1993, pages 29422-29425)

And, psychiatrists can use the unscientific DSM to come up with at least one diagnosis for virtually everyone on the planet.  Therefore, a prosecutor could easily find an expert witness willing to state that any client had, within the last year, a “diagnosable disorder“.


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