January 22, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Davis v. Wawanesa Mutual Insurance Company
Superior Court of Justice
Heard Before: Justice Quinlan
Date of Hearing: October 27, 2015
Ms. Davis sought clarification before trial of whether the capping of attendant care benefits at the amount of their economic loss for services rendered by a family member applies in this case where the car accident happened before the regulation came into effect, but the claim made after the provision came into force.
Justice Quinlan ruled no, that attendant care benefits are a contractual right to which an injured person is entitled. The regulation interferes with her substantive rights. The presumption against retrospectivity was not rebutted and therefore applied.
In an Agreed Statement of Facts Ms. Davis was injured in a car accident on November 15, 2013. She was deemed to have met the criteria for CAT injury pursuant to the SABS 2010 by virtue of her Glasgow Coma Scale score at the time of the accident. She applied for and has been receiving SABs from Wawanesa. An OT assessment submitted as a Form 1 in January 2014 concluded Ms. Davis needs 24 hour attendant care payable at $7,790.15 upon coming home from the hospital. This amount exceeds the maximum payable under the SABS of $6000 per month.
On discharge she moved in with her son and daughter-in-law Ms. L. Ms. L left her job as a financial analyst to assume full time attendant care giver duties.
Justice Quinlan reviewed O. Reg 347/13 and determined that
“if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.”
Justice Quinlan noted the Regulation is silent on whether this applies to claims predating Feb 1, 2014. A Form 1 assessment provided for attendant care in the amount of $7,790.15. Wawnesa offered to pay the maximum benefit of $6000 monthly to a professional service provider or an amount equal to the economic loss of a family member providing attendant care services. Wawanesa argued that Ms. L was not providing the attendant care service as part of her regular employment, and that as the accident predated the new regulation Ms. L is therefore entitled to the lost wages that she would be receiving otherwise.
Ms. Davis takes the position that changes made by O. Reg. 347/13 are a major change in law that interfere with vested rights and restricts the attendant care benefit in a way that makes it very difficult for the most seriously injured people to pay for 24-hour care. As such, it interferes with substantive rights and should only be applied prospectively. She maintains that the regulation is silent on the issue of whether it applies retroactively and thus argues that the law that applies is the one in force at the time of the accident.
Wawnesa maintains that O. Reg. 347/13 did not alter the criteria for entitlement to attendant care benefits but rather clarified the formula for calculating benefits to be paid, and that it is an amendment flowing from earlier amendments. As it is a procedural amendment it should be applied retrospectively. Wawnesa argues that finding otherwise places an unfair burden on rate-payers across Ontario.
Justice Quinlan reviewed the law, the SABS, and the FSCO 2009 Report on automobile insurance, and Regulations and determined that for a law to be considered procedural it must be exclusively procedural and not interfere with substantive rights or liabilities of the parties or produce an unjust result. It is presumed that the legislature does not intend to confer a power on subordinate authorities to make regulations or orders that are retroactive, retrospective or interfere with vested rights. On further review of the legislation the Justice determined that legislators considered the law was being changed and not clarified in this case. On this basis Justice Quinlan found that the Ms. Davis has a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident and that O. Reg. 347/13 does not apply to this case.