Case dealt with rules around attendant care benefits
In a recent personal injury case, the Ontario Court of Appeal clarified two “very important” issues concerning the Statutory Accident Benefits Schedule, says Nick de Koning, a personal injury lawyer at Deutschmann Law in Waterloo, Ontario.
Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602 dealt with whether the injured appellant was required to demonstrate he was paying a professional for attendant care services to receive attendant care benefits from the insurance company. The case also concerned whether the prescribed form assessing the need for attendant care benefits could apply retroactively from the time it was submitted without overcoming an onerous test.
“This appeal requires the interpretation of dense and difficult text in a changing and complex statutory scheme,” said Court of Appeal Justice Katherine van Rensburg, who wrote the reasons for the three-judge panel.
As a result of the Court of Appeal’s decision, people with catastrophic impairment who were injured before 2010 are entitled to attendant care “based on a valid need for the assistance,” says de Koning. “They do not need to actually prove that they are paying a professional housekeeper or personal support worker at arm's length.”
The appeal court also found that the test for retroactive applicability endorsed by the lower courts had no basis in the legislation. A person can submit the form at any time; it is retroactive in nature, and it can correct the previous form, he says.
Attendant care services provide non-medical assistance to injured or disabled people, such as bathing, dressing, meal preparation, and other household tasks the person is unable to perform themselves.
The accident at issue in the case occurred in 2000. A new version of the SABS, which are regulations under the Insurance Act, came into force in 2010.
Under s. 3(7)(e) of the SABS, an attendant care expense is not “incurred” by an insured person unless they have received the services, paid, promised to pay, or are legally obligated to pay for the services. The person who provided the service also must have done so in the course of their job at which they would ordinarily have been engaged, but for the accident, or they must have sustained an economic loss from providing the services.
“Under the 2010 legislation, the person is bound by this incurred definition, which, in essence, requires the person to pay a third-party professional service provider for the services in question,” says de Koning. Before 2010, the regulations were “a lot more flexible,” he says. The leading case on the issue was the 2007 Ontario Divisional Court’s decision in Belair Insurance Co. v. McMichael. The effect of that ruling was that if the insured person could show that they had a valid need for the service, they were not required to show that they were paying anyone for it.
“Insurance companies hated that,” says de Koning. He says they viewed it as a “windfall” for the insured person, who may not need the money for a professional because they have a family member helping them without requiring compensation.
Although the appellant’s accident occurred in 2000, the License Appeal Tribunal found that the 2010 regulations bound him. The Divisional Court agreed.
To calculate attendant care benefits, an occupational therapist fills out a document called “Form 1,” which lists the number of minutes per day the injured person requires assistance. But under both the pre-and post-2010 SABS, the hourly rates for attendant care are frozen at their level from the time of the accident, says de Koning, which was $7 per hour in 2000.
Imposing this definition of “incurred” on an injured person results in a “huge injustice,” says de Koning, because it means the benefit will not be available. “There's nobody that will provide this kind of assistance for $7 an hour.”
The case’s other issue surrounded the prescribed Form 1. The Licence Appeal Tribunal and, on appeal, the Divisional Court had decided that an injured person must show that it is urgent and that it was impossible and impractical to submit the form sooner for it to be applied retroactively.
“The Court of Appeal said that this ‘urgency’ and ‘impossibility’ and ‘practicability’ test has no basis in the legislation,” says de Koning. “That's not what the legislation says… A person can submit a Form 1 at any time. It is retroactive in nature.
“This issue, just in terms of the number of people impacted by it, is certainly even more significant than the first issue because it potentially affects any accident benefits claim.”
