Nicholaus de Koning

This appeal concerns the interpretation of Ontario's Statutory Accident Benefits Schedules regarding attendant care benefits (ACBs) for a catastrophically injured individual.

The key issues were whether an applicant for ACBs must demonstrate "urgency, impossibility, or impracticability" to claim retroactive benefits under s. 42(5) of the 2010 Schedule, and whether the definition of "incurred" from s. 3(7)(e) of the 2010 Schedule applies to claims arising from accidents predating its enactment (specifically, the 1996 Schedule).

The Court of Appeal found that s. 42(5) relates to the timing of payment, not eligibility, and does not impose a "urgency" test for retroactive claims.

It further held that the definition of "incurred" in the 2010 Schedule does not apply to claims governed by the 1996 Schedule, based on a careful reading of the transitional provisions.

The appeal was allowed, entitling the applicant to retroactive ACBs without substantiation under the 2010 Schedule's "incurred" definition.

The moving party insurer brought a motion to dismiss the plaintiff's action, arguing that the Personal Excess Liability Policy Endorsement in the deceased's homeowner's policy did not provide coverage for the motor vehicle accident.

The plaintiff's common-law spouse was killed in a collision with a motorist who had $1,000,000 in liability coverage, which equalled the limits of the plaintiff's OPCF 44R family protection coverage.

The court held that the undefined term 'inadequately insured motorist' in the excess endorsement adopted the definition from the underlying auto policy.

Because the third-party motorist's limits were not less than the plaintiff's OPCF 44R limits, the motorist was not inadequately insured, and the excess endorsement was not triggered.

The action against the insurer was dismissed.

Appeal from an arbitral decision concerning a priority dispute between insurers over statutory accident benefits.

The issue was when the respondent insurer received a “completed application” triggering the 90‑day notice period under s. 3(1) of O. Reg. 283/95 (Disputes Between Insurers).

The arbitrator held that the application became functionally complete when full spousal insurance details were received months later.

The court held that the application became functionally adequate earlier, once the insurer obtained sufficient information to begin reasonable investigations into potential priority insurers.

Because notice was given more than 90 days after that point and the savings provision in s. 3(2) did not apply, the appeal was allowed and the arbitration award set aside.