Ontario Court of Appeal overturns prior rulings in catastrophic injury case

The Ontario Court of Appeal has ruled in favour of a man who suffered catastrophic injuries in a motor vehicle accident in a matter involving the interpretation of statutory accident benefits under the province’s Insurance Act, 1990.

The appeal court overturned the previous decisions of the Licence Appeal Tribunal (LAT) and the Divisional Court. This ruling explored key aspects of the Statutory Accident Benefits Schedule, particularly regarding retroactive claims and the definition of “incurred” expenses.

Background of the case

Since the appellant’s injury in 2000, he has received attendant care benefits (ACBs) under the no-fault statutory accident benefits scheme of the Insurance Act.

In April 2018, the appellant applied for increased benefits to cover additional care expenses incurred beginning in October 2015. The insurer denied this claim, which sparked a dispute that eventually reached the Ontario Court of Appeal.

The legal dispute

The case revolved around two main issues: the appellant’s entitlement to retroactive ACBs and the applicability of the definition of “incurred” expenses under O. Reg. 34/10, Statutory Accident Benefits Schedule – Accidents on or After September 1, 2010 (2010 Schedule).

The appellant argued that the LAT’s adjudicator and the Divisional Court erred in interpreting s. 42(5) of the 2010 Schedule as requiring him to meet a test of “urgency, impossibility, or impracticability” before submitting the relevant form for retroactive ACBs.

The appellant also challenged the conclusion that the definition of “incurred” in the 2010 Schedule required him to substantiate attendant care expenses.

The appeal court’s ruling

In Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602, the Ontario Court of Appeal allowed the appeal.

It found the appellant entitled to a retroactive monthly allowance of $451.50 from October 2015, subject to the parties’ agreement on the reasonableness and necessity of the increased ACBs for the relevant period.

Interpretation of s. 42(5)

The appeal court held that the LAT and the Divisional Court both erred in interpreting and applying the statutory provisions.

Specifically, the appeal court disagreed with the lower courts’ interpretation of s. 42(5) of the 2010 Schedule and clarified that the provision addressed the timing of payment rather than eligibility for benefits.

Definition of “incurred” expenses

The appeal court ruled that the appellant did not need to substantiate that he “incurred” attendant care expenses under s. 3(7)(e) of the 2010 Schedule because that provision did not apply to his claim.

The definition of “incurred” expenses under the 2010 Schedule was inapplicable to claims arising from accidents that occurred before September 2010, including the appellant’s claim, the appeal court said.

The appellant’s accident occurred under O. Reg. 403/96, Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 (1996 Schedule), the appeal court explained. The 1996 Schedule contained no criteria for an expense to be considered “incurred”, the appeal court noted.