Carlie Jeanette Flynn

The applicant, catastrophically injured in a motor vehicle accident, sought determination of the amount of attendant care benefits payable under the Statutory Accident Benefits Schedule, O. Reg. 34/10.

The insurer limited payments based on the number of hours of economic loss sustained by the family member providing care, rather than the full amount assessed in the Form 1.

The court interpreted the definition of “incurred” expense under s. 3(7)(e) of the SABS and held that proof of economic loss is only a threshold requirement to establish that the expense was incurred.

Once that threshold is met and the insured is obligated to pay the caregiver, the insurer must pay the reasonable and necessary attendant care expenses up to the statutory maximum.

The insurer’s proportional calculation based on lost hours was rejected.

The defendant insurer brought a motion to strike the plaintiff’s statement of claim seeking a declaration that she met the disability test for income replacement benefits under the Statutory Accident Benefits Schedule.

The insurer had already accepted the plaintiff’s disability and was paying benefits, and no mediation had been sought under the Insurance Act dispute resolution scheme.

The court held that declaratory relief could not be used to bypass the mandatory mediation provisions governing disputes over statutory accident benefits.

As there was no existing dispute and the claim sought pre‑emptive relief, the action was premature and disclosed no reasonable cause of action.

The statement of claim was struck.