Monachino v. Liberty Mutual Fire Insurance Company et al. [Indexed as: Monachino v. Liberty Mutual Fire Insurance Co.]

47 O.R. (3d) 481

[2000] O.J. No. 865

No. C28179

Court of Appeal for Ontario

Finlayson, Weiler and Moldaver JJ.A.

March 22, 2000

Insurance -- Agents -- Dishonest insurance broker accepting application for automobile insurance and causing fake pink liability certificate to be issued -- Broker never submitting applications to insurer -- Broker pocketing insurance premium moneys -- No policy ever issued in respect of vehicle -- Broker not actual agent of insurer -- No action on part of insurer justified applicant for insurance in believing that broker had authority to issue coverage -- Insurer not liable to pay accident benefits.

Insurance -- Automobile insurance -- No-fault benefits -- Caregiver benefits -- Insured not entitled to caregiver benefits where care provided without fee by members of his family rather than by professional caregivers -- Insured not entitled to declaration regarding his entitlement to care in accordance with plan for future care prepared by psychologist.

The plaintiff was severely injured in a motor vehicle accident. He sustained significant brain damage and was left with cognitive deficits. He would never be able to lead an independent life. In the plaintiff's action against the automobile insurers L Co. and A Co., the trial judge held that there was no question that the plaintiff was totally and permanently disabled and was entitled to benefits under the Statutory Accident Benefits Schedule -- Accidents before January 1, 1994, R.R.O. 1990, Reg. 672 of the Insurance Act, R.S.O. 1990, c. I.8. However, as the plaintiff had no professional caregivers and care services were provided without fee by family members, the trial judge dismissed the claim for caregiver benefits. The plaintiff appealed from that decision. He also appealed from the dismissal of his claim for a declaration that he was entitled to care in accordance with a plan for future care provided by a psychologist who specialized in future care plans for brain injured persons.

Before the accident, the plaintiff's father had approached an independent insurance broker because the automobile insurance on his three vehicles was about to expire. The broker had the plaintiff's father fill out generic application forms. The applications were prepared in such a way that they indicated they would be addressed to A Co. The broker issued generic temporary 30-day pink liability certificates in respect of all three vehicles, one of which was the vehicle involved in the accident. Several weeks later, he caused pink liability certificates to be prepared in respect of all three vehicles and sent to the plaintiff's father. The broker was dishonest and committed a fraud on the plaintiff's father and others. He had no authority to bind cover in respect of the automobile in question because of its special category for insurance purposes. He never submitted any of the applications for insurance to A Co. at any time prior to the accident. The pink liability certificates that were issued in the name of A Co. contained fraudulent policy numbers and were issued without authority. The broker apparently pocketed the insurance premium moneys. No policy was ever issued by A Co. on the car in question. The trial judge found that A Co. was not responsible to pay any accident benefits to which the plaintiff was entitled, and that the insurer L Co. was entirely responsible for the payment of such benefits. L Co. cross-appealed from that finding.

Held, the appeal and the cross-appeal should be dismissed.

Per Finlayson J.A. (Moldaver J.A. concurring): The language of s. 7(1)(a) of the Statutory Accident Benefits Schedule is clear and unambiguous. There are three conditions to entitlement to caregiver benefits: a cost must be incurred; it must be reasonable and it must be for a professional caregiver. The plaintiff was not entitled to caregiver benefits where the care was not provided by a professional caregiver.

It would be premature to impose obligations upon the defendants arising from the psychologist's plan for future care. That plan was submitted in conjunction with the plaintiff's tort action against the at-fault motorist and had yet to win judicial recognition as a concrete and practical scheme for assisting the plaintiff. The evidence before the trial judge led him to doubt whether the plaintiff and his family were genuinely committed to implementing the plan.

The broker was not the actual agent of A Co. and A Co. did not hold the broker out as its agent with respect to the transaction in question. The broker's authority was limited by his agency's contract with A Co. to writing up applications for coverage and submitting them to A Co. for approval. Any suggestion that the broker had authority to issue a policy or binder, even on a temporary basis, emanated from the broker or was implicit in his actions in writing the name A Co. on the blank forms used for both the applications and the temporary and final binders. There was no record of any representation of any kind having been made by A Co. to anyone that there was any relationship between it and the broker, even the limited one that did exist.

Per Weiler J.A. (dissenting in part): Finlayson J.A.'s disposition of the cross-appeal is agreed with.

The words "the reasonable cost of a professional caregiver" in s. 7(1)(a) of the Statutory Accident Benefits Schedule should be interpreted as referring to the amount of money that would have to be paid to retain the services of a professional caregiver. Care benefits under s. 7(1)(a) are payable to an injured person for care received from family members.

In light of that conclusion, the declaration which the plaintiff sought that he was entitled to receive weekly care benefits was not hypothetical. The plaintiff was entitled to the declaration sought.

APPEAL and CROSS-APPEAL from a judgment of Keenan J. (1997), 1997 26915 (ON CJ), 49 C.C.L.I. (2d) 105 (Gen. Div.) in an action for no-fault benefits.

Solosky v. R., 1979 9 (SCC), [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745, 30 N.R. 380, 50 C.C.C. (2d) 495, 16 C.R. (3d) 294, consd MacDonald v. Travelers Indemnity Co. of Canada (1987), 1987 4062 (ON SC), 60 O.R. (2d) 385, 42 D.L.R. (4th) 204, [1987] I.L.R. 1-2220 (H.C.J.); Placken v. Canadian Surety Co. (1990), 47 C.C.L.I. 268 (Ont. Dist. Ct.), distd Other cases referred to Bapoo v. Co-operators General Insurance Co. (1997), 1997 6320 (ON CA), 36 O.R. (3d) 616, 154 D.L.R. (4th) 385, [1998] I.L.R. 1-3512, 33 M.V.R. (3d) 135 (C.A.) [leave to appeal to S.C.C. refused (1998), 227 N.R. 398n]; Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 2 Q.B. 480, [1964] 1 All E.R. 630, [1964] 2 W.L.R. 618, 108 Sol. Jo. 96 (C.A.); Keddie v. Canada Life Assurance Co. (1999), 1999 BCCA 541, 179 D.L.R. (4th) 1, [1999] B.C.J. No. 2165 (C.A.); Kirkness Estate v. Imperial Life Assurance Co. of Canada (1993), 1993 8522 (ON CA), 12 O.R. (3d) 285, 99 D.L.R. (4th) 391, [1993] I.L.R. 1-2923 (C.A.) (sub nom. Seitz v. Laurentian Imperial Co.); Maida v. State Farm Mut. Auto. Ins. Co., 66 App.Div.2d 852, 411 N.Y.2d 386 (2nd Dept. 1978); Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354, 48 M.V.R. (2d) 1 (C.A.) [leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi, 172 N.R. 160n]; Migliore v. Co-operators Insurance Assn. (1987), 1987 4158 (ON SC), 61 O.R. (2d) 452, 42 D.L.R. (4th) 633, 26 C.C.L.I. 231, [1987] I.L.R. 1-2236, 7 M.V.R. (2d) 259 (H.C.J.); R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, 171 D.L.R. (4th) 1, 237 N.R. 157, 61 C.R.R. (2d) 244, 133 C.C.C. (3d) 129, 24 C.R. (5th) 971; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438, [1921] All E.R. Rep. 329, 90 L.J.K.B. 1089, 126 L.T. 35, 37 T.L.R. 919, 65 Sol. Jo. 733 (H.L.); Stante v. Boudreau (1980), 1980 1875 (ON CA), 29 O.R. (2d) 1, 112 D.L.R. (3d) 172, [1980] I.L.R. 1-1250 (C.A.); Travelers Canada v. MacDonald (1984), 1984 1840 (ON CA), 48 O.R. (2d) 714, 7 O.A.C. 280, 14 D.L.R. (4th) 88, [1985] I.L.R. 1-1878, 39 M.V.R. 191 (C.A.); Van Marter v. American Fidelity Fire Insurance, 318 N.W.2d 679 (Mich. App. 1982); Visconti v. Detroit Auto Insurance Exchange, 90 Mich.App. 477, 282 N.W.2d 360 (1979); Whitney v. Co-operators General Insurance Co., Financial Services Commission of Ontario, Doc. A-001005, March 31, 1993 Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, ss. 61(2)(d), 63 Insurance Act, R.S.O. 1990, c. I.8, ss. 267(1)(a), 268 Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Uniform Vehicle Accident Reparations Act (U.S.) Rules and regulations referred to Statutory Accident Benefits Schedule -- Accidents before January 1, 1994, R.R.O. 1990, Reg. 672 (Insurance Act), ss. 6(1)(f), (2), 7, 22, 24(8), 25 Statutory Accident Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/ 93, ss. 40(5), 47(1)(a), (2) Authorities referred to American Jurisprudence, 2nd ed., Vol. 7A (1997), title 513, at p. 333 Black's Law Dictionary, "expense" Concise Oxford Dictionary, "expense" Couch on Insurance, 3rd ed., title 171:63, p. 171-86 Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), pp. 457-58 Flaherty and Zingg, Financial Services Commission of Ontario (Motor Vehicle Insurance) Law and Practice (Aurora: Canada Law Book, 1999), vol. 2, p. 3:0202 Report of Inquiry into Motor Vehicle Accident Compensation in Ontario (1988) (Osborne Report), p. 573 Report of the Ontario Automobile Insurance Board (1989) Report of the Ontario Task Force on Insurance (1986) Reynolds, Bowstead on Agency, 16th ed. (London: Sweet & Maxwell, 1996), pp. 103-04, 366

Hillel David, for appellant. William J.A. Hobson, Q.C., for respondent, Liberty Mutual Fire Insurance Company. Geoffrey Adair, for respondents, Axa Home Insurance Company.

[1] FINLAYSON J.A. (MOLDAVER J.A. concurring): -- This is an appeal by Sylvio Monachino from the judgment of the Honourable Mr. Justice Keenan dated September 5, 1997 dismissing his claim for care benefits under ss. 7 and 6(1)(f) of the No-Fault Schedule in Reg. 672, R.R.O. 1990 of the Insurance Act, R.S.O. 1990, c. I.8 and dismissing the claim for a declaration regarding entitlement to care in accordance with a plan for future care prepared by Jane Staub. The appellant does not appeal those parts of the judgment regarding the claims for no- fault income benefits and a special award.

[2] The respondent Liberty Mutual Fire Insurance Company cross-appeals from that part of the judgment in which Keenan J. absolved the respondent Axa Home Insurance Company of any liability to pay no-fault benefits to the appellant arising from the appellant's accident. The appellant does not expressly appeal from that part of the judgment which held the respondent Liberty Mutual, and not the respondent Axa Home, liable to pay no-fault benefits to the appellant, but if the appeal by Liberty Mutual from this part of the judgment succeeds, then the appellant seeks an order making the respondent Axa Home liable to make those payments.

Facts as They Relate to the Appeal of the Appellant

[3] The appellant was severely injured in a motor vehicle accident on November 12, 1991. At the time, he was a third-year student at the University of Toronto. The tort action against the driver of the vehicle was settled prior to the trial of this action, but no details of that settlement were disclosed in evidence other than that the tortfeasor's policy limits were paid.

[4] Following the accident, the appellant was in a coma for four days and was hospitalized for six weeks. The undisputed medical evidence was that he had sustained significant brain damage and was left with cognitive deficits and would never be able to lead an independent life.

[5] There was a large area of haemorrhage in both frontal lobes of his brain and, subsequently, there was scarring and atrophy of the lower frontal areas of the brain on both sides. His period of post-traumatic amnesia was estimated to be two to three weeks, itself indicating a severe brain injury. He presented with all the classic signs of such an injury, behaviourally, socially and emotionally.

[6] The prognosis for persons with bilateral frontal brain damage is generally very poor over the long term and that prognosis applies to the appellant. His condition will likely deteriorate, rather than improve, over time.

[7] The trial judge held that there was no question that the appellant was totally and permanently disabled and was entitled to benefits under the No-Fault Schedule. However, there were no professional caregivers in this case. The care services that were provided were reasonable and necessary but they were provided without fee by members of the appellant's family, particularly his mother.

Issues on Appeal

1. Did the trial judge properly interpret s. 7(1)(a) of the No- Fault Schedule by finding that the entitlement to the caregiver benefits is conditional on the costs of a professional caregiver having been incurred?

2. Should the appellant be granted a declaration regarding his entitlement to care in accordance with a plan for future care prepared by Jane Staub?

Analysis

[8] Issue 1. The primary position of the appellant was that the trial judge misinterpreted s. 7(1)(a) of the No-Fault Schedule. The section reads as follows:

7(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person,

(a) the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

[9] The appellant submits that the trial judge erred in finding that entitlement to caregiver benefits under that provision is conditional on the cost of a professional caregiver having first been incurred. He submits that the correct interpretation is that there is entitlement to caregiver benefits when care has been provided by any person, whether or not that person is a professional caregiver, the only condition being that the care was necessary. The reasonable cost of a professional caregiver is the measure of the benefit provided. The appellant submits that not only does that interpretation accord with the plain meaning of the language of s. 7(1)(a), but it also promotes the intent of the no-fault scheme, which is to ensure the prompt availability of first-party no-fault benefits in exchange for the limitation on the right to sue in tort. It avoids both the penalization of insured persons who do not have the financial means to take the risk of incurring professional care costs before making what might well be problematic claims for reimbursement from the insurer, and the unfair discrimination that would otherwise result as between income-earning and non-income-earning family caregivers.

[10] I cannot accept the argument of the appellant. It appears to me that the language of the no-fault schedule is clear and unambiguous. There are three pre-conditions to entitlement: a cost must be incurred, it must be reasonable and it must be for a professional caregiver. To accept the appellant's interpretation would be to re-write the statute as opposed to applying its clear language. The trial judge correctly interpreted this provision and his conclusion was sound.

[11] The appellant advanced as a supplemental argument that he could rely upon s. 7(1)(b), reproduced above, and s. 6(1) (f), the relevant language of which is as follows:

6(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident . . . for,

(f) other goods and services, whether medical or non- medical in nature, which the insured person requires because of the accident.

[12] The appellant stresses that the key word in both ss. 6(1)(f) and 7(1)(b) is "expenses" and that this means "cost incurred". He submits that the appellant can be said to have incurred the cost of care giving services as a result of the provision of those services by his family, particularly his mother. I do not agree. Care giving services by members of a loving family are not an expense or a cost in the contemplation of this statutory framework. They can sometimes be compensated for in other areas, such as under the Family Law Act, R.S.O. 1990, c. F.3 in a proper case, but they do not fit within the language of the sections of the no-fault schedule we are dealing with.

[13] Furthermore, there is a problem of the sufficiency of the record in this case. The trial judge found:

Furthermore, the state of the record is such that I cannot make any reasonably reliable determination of the amount of time claimed that could be compensable. . . . Similarly, the record does not permit any reliable calculation of the amount of care given at home as a percentage of the grossly exaggerated total claimed. I, therefore, must decline to attempt any such calculation, not simply because of the difficulty involved, but because the state of the record does not permit it.

[14] Essentially, the position of the appellant is that we should not give these sections of the No-Fault Schedule close scrutiny and should interpret them liberally in order to give relief in a meritorious case. In other words, we should read in language to prevent what the appellant described as discrimination between parents who are not employed or who do not have incomes which they sacrifice by remaining at home to provide care and those parents who get the benefit of the income replacement provisions of s. 7(1)(a). To this end, the court had the benefit of an extended discussion about the significance of the requirement of a professional caregiver to a family that prefers to provide the care itself or is unable or unwilling to incur the costs of retaining a professional caregiver when recovery of the expense is not assured. These concerns do not appear to have arisen in this case. Moreover, the discussion appeared to proceed on the premise that the parents were facing an either or scenario; choose professional care givers or look after the child yourself. The reality is that the Monachinos are entitled to do both. They could opt to be the primary caregivers and bring in professional caregivers to spell them off or provide specialized services without in any way being supplanted in their roles as parents by these surrogates. They could manage their son's care with the assistance of the professionals, and still can if they choose to do so.

[15] In any event, I would be reluctant to second-guess the framers of this no-fault scheme with respect to this item in isolation. We are not aware of the social and economic considerations that went into the decisions to provide the various benefits in the program. It would be a mistake for this or any other court to engage in what would amount to no more than tinkering with the regulation where we have no evidence of the cost significance of what is being put forward by the appellant. This position is consistent, I think, with what this court said about no-fault insurance in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 at p. 134, 110 D.L.R. (4th) 354:

In our view, the Ontario legislature enacted s. 266 and other related amendments to the Act for the purpose of significantly limiting the right of the victim of a motor vehicle accident to maintain a tort action against the tortfeasor. The scheme of compensation provides for an exchange of rights wherein the accident victim loses the right to sue unless coming within the statutory exemptions, but receives more generous first-party benefits, regardless of fault, from his or her own insurer. The legislation appears designed to control the cost of automobile insurance premiums to the consumer by eliminating some tort claims.

[16] Issue 2. Jane Staub, a psychologist who specializes in future care plans for brain injured persons, prepared a long- term care program as part of the appellant's tort action against the motorist at fault. The plan, dated December 30, 1994, was not put forward initially as part of the claim for no-fault benefits. The report was directed to replacing the present dependence of the appellant on his family with a plan whereby the appellant would be provided with separate living quarters, a case manager and a life skills coach. The plan also provided for continuing psychotherapy, social skills retraining and day-to-day issues such as medication, house cleaning, vacations and financial management. Ms. Staub testified that the plan was reasonable and necessary and that it must be implemented in its entirety. It has not been implemented to date and there is no indication of when it will be implemented.

[17] The appellant in his factum asks for a declaration that the appellant is and shall continue to be entitled to receive both weekly income benefits and care benefits under the No- Fault Schedule to the same extent as heretofore provided in the judgment until such time as the limits set out in the schedule are exhausted or until a court orders otherwise. In argument, he expanded his claim to argue that he was entitled to a declaration that the appellant was entitled to implement the Staub report.

[18] I agree with the respondents that it would be premature to impose obligations upon the respondents arising from Ms. Staub's plan for future care. Her plan was submitted in conjunction with the appellant's tort action against the at- fault motorist and it has yet to win judicial recognition as a concrete and practical scheme for assisting the appellant. To the contrary, the trial judge wrote:

The evidence that Sylvio or the Monachino family intend to implement the Staub plan is not convincing. There is real doubt that Sylvio wants or would accept a case manager and life skills coach or someone accompanying him on his social outings. There is no evidence that his parents want to have the Staub plan implemented in its entirety, including separate accommodation.

[19] Lord Dunedin's judgment in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 (H.L.), furnishes a classic statement of the criteria a court should consult when deciding to grant declaratory relief. He affirmed at p. 448:

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.

[20] In Solosky v. R., 1979 9 (SCC), [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745, Dickson J., writing for the majority of the Supreme Court of Canada, developed the statement of the criteria for declaratory relief that Lord Dunedin advanced in Russian Commercial and Industrial Bank. Dickson J. proposed two criteria at pp. 832-33: the case before the court must be genuine, not moot or hypothetical; and the declaration must be capable of having some practical effect in resolving the issues the case raises.

[21] There have been circumstances where Ontario courts have granted declaratory judgments entitling an insured to recover under an insurance policy. In MacDonald v. Travelers Indemnity Co. of Canada (1987), 1987 4062 (ON SC), 60 O.R. (2d) 385, 42 D.L.R. (4th) 204 (H.C.J.), Osler J. stated at p. 436:

There will be a declaration that products, services and accommodations of the kind described and approved in this judgment are reasonably necessary for the care, recovery and rehabilitation of Lynne MacDonald and that expenses on the scale approved herein constitute reasonable charges.

[22] Similarly, in Placken v. Canadian Surety Co. (1990), 47 C.C.L.I. 268 (Ont. Dist. Ct.), Kurisko D.C.J. stated at p. 273:

A declaratory judgment will therefore issue ordering the defendant to pay all expenses for repairs and replacement of the plaintiff's prosthesis after June 23, 1987, subject to the limit of $25,000 in s. B.

[23] The instant case is distinguishable from MacDonald and Placken and is outside the criteria for declaratory relief that Dickson J. proposed in Solosky. In both MacDonald and Placken, the declaratory judgment addressed the object of a genuine dispute. In contrast, the evidence before the trial judge in the case in appeal led him to doubt whether the appellant or the appellant's family are genuinely committed to implementing the Staub plan. Any attempt to make the Staub plan a basis for the appellant's future treatment must accordingly qualify as hypothetical. Moreover, in both MacDonald and Placken, the declaratory judgment did resolve practical issues disputed by the parties. In the instant case, by contrast, it is unlikely that this court can resolve effectively and realistically the dispute by granting a declaration about the appellant's entitlement to care under a plan to which he and his family have been found to lack strong com mitment.

[24] Accordingly, it is inappropriate to make a declaration with respect to the Staub report. Further, I would not make any declaration with respect to entitlement to future no-fault benefits where as here there is no evidence that the benefits that the trial court and this court have found to be appropriate have not in fact been paid without the intervention of the court. Despite the issue between the two respondent insurers as to which was liable for the payments, they co- operated with each other and the appellant to ensure that all no-fault benefits were paid, saving only the ones in issue in this appeal which the trial judge disallowed. These respondents have not refused to accept Ms. Staub's plan for future care as re-presented in the no-fault venue, they have simply stated that they will respond to whatever future care plan is agreed to by the family. Their reluctance to buy a "pig in a poke" is quite understandable. By dismissing the action as framed by the appellant, the trial judgment does not fore close future entitlement to reasonable costs of this appellant. As explicitly stated by the trial judge, the injured party has the right to present specific proposals for intended treatment and services for consideration and approval by the insurer and those claims will be paid as the costs are incurred and the services are provided.

[25] However, it is conceded that the formal judgment of the court does raise a potential problem. It states:

5. THIS COURT ORDERS AND ADJUDGES that the plaintiff's claim for a declaration that he is totally and permanently disabled and is entitled to receive weekly income and supplementary medical, rehabilitation and care benefits for the balance and duration of his disability is dismissed.

[26] This is not accurate in that it suggests that the trial judge's finding was that the appellant was not permanently disabled and will not be entitled to no-fault benefits. In addition, paras. 3 and 6 dismiss portions of the plaintiff's claim for no-fault benefits including a "special award". I think it would be simpler if paras. 4, 5 and 6 were deleted and replaced with a single paragraph reading:

4. THIS COURT ORDERS AND ADJUDGES that the balance of the plaintiff's claim is dismissed.

[27] Other than this adjustment, I would dismiss the appellant's appeal.

Facts as They Relate to Cross-appeal

[28] Section 268(1) of the Insurance Act mandates that every motor vehicle liability policy shall be deemed to provide for certain statutory accident benefits as set out in the then No- Fault Benefits Schedule (now called Statutory Accident Benefits Schedule -- Accidents before January 1, 1994). Section 268(2) of the Insurance Act combined with s. 268(4) and (5) establish certain priority rules for the payment of accident benefits. It is common ground that the application of these priority rules to the instant case is such that the cross- appellant Liberty Mutual as insurer of the at-fault motor vehicle is responsible to pay accident benefits to Sylvio Monachino unless the cross-appellant Liberty Mutual can establish priority to pay on the part of the respondent Axa Home. The cross-appellant Liberty Mutual rested its case in this regard upon the evidence relating to the efforts of Salvatore Monachino to arrange insurance on the vehicle in question through William Dusome.

[29] On June 18, 1991 (five months prior to the accident), Salvatore Monachino, the father of the appellant, attended upon his insurance agent of several years, William Dusome, because the automobile insurance upon his three motor vehicles with Commercial Union was about to expire. Dusome was an independent insurance broker having agency relationships with several different insurers. He could have placed Salvatore Monachino's business with any of those several insurers.

[30] Dusome had Salvatore Monachino fill out two separate generic application forms for insurance. One application was in respect of Salvatore Monachino's BMW and the other application was in respect of both his Volkswagen and the Pontiac Firebird motor vehicle involved in the accident. These applications were prepared in such a way that indicated they would be addressed to Axa Home Insurance Company. Dusome, on June 18, 1991, issued generic temporary 30-day binder pink liability certificates in respect of all three vehicles. Several weeks thereafter, Dusome caused pink liability certificates for the prospective policy period of June 18 to December 18, 1991 to be prepared in respect of all three vehicles and sent by mail to Salvatore Monachino. Salvatore Monachino issued a cheque payable to William P. Dusome Insurance Broker for the insurance.

[31] It was common ground at trial that Dusome was dishonest and committed a fraud upon Salvatore Monachino and others. He had no authority to bind cover in respect of the Pontiac Firebird to be operated by Sylvio Monachino because of its special category for insurance purposes. He never submitted any of the applications for insurance to Axa Insurance Company at any time prior to the accident. The pink liability certificates that were issued in the name of Axa Home Insurance Company contained fraudulent policy numbers and were issued without authority. Dusome apparently pocketed the insurance premium moneys and hoped that no insurance claim would be advanced. No policy was ever issued on the 1988 Pontiac Firebird by Axa Home Insurance Company or any other insurer covering the relevant timeframe from June 18 to December 18, 1991.

Issue on Cross-appeal

The sole issue on cross-appeal is whether or not these actions on the part of Dusome are sufficient to fix the respondent Axa Home with the responsibility to pay any accident benefits to which the appellant is entitled.

Analysis of Cross-appeal

[32] The issue as a matter of law falls to be decided on basic principles of agency. Was Dusome the agent of the respondent Axa Home such that Axa Home would be bound by his actions? The trial judge found that Dusome was not the agent of the respondent Axa Home and this finding is consistent with the evidence and the case law. Accepting, as I think we must, that Dusome was not the actual agent of the respondent Axa Home, the question still remains as to whether the respondent Axa Home held Dusome out as its agent with respect to the transaction that is material to this action. To put it another way, was there some action on the part of the respondent Axa Home which would justify Salvatore Monachino in believing that Dusome had authority from the respondent Axa Home to issue the coverage that he purported to issue?

[33] Various authors use different terminology in describing what authority other than actual authority can bind a principal to the conduct of its agent. It is referred to as apparent authority or ostensible authority. F.M.B. Reynolds, in Bowstead on Agency, 16th ed. (London: Sweet & Maxwell, 1996) makes the following distinction at p. 103:

The authority of an agent may be

(a) actual (express or implied) where it results from a manifestation of consent that he should represent or act for the principal expressly or impliedly made by the principal to the agent himself; or

(b) apparent, where it results from such a manifestation made by the principal to third parties.

[34] The author defines actual authority at pp. 103-04:

Actual authority is the authority which the principal has given the agent wholly or in part by means of words or writing (called here express authority) or is regarded by the law as having given him because of the interpretation put by the law on the relationship and dealings of the two parties (called here implied authority). "An 'actual' authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties . . ." [Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 2 Q.B. 480, 502, per Diplock L.J.]

[35] The author defines the nature of apparent authority at p. 366:

Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority.

[36] Apparent or ostensible authority has also been defined by Diplock L.J. in the leading case of Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 2 Q.B. 480 at p. 503, [1964] 2 All E.R. 630:

An "apparent" or "ostensible" authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted on by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed on him by such contract.

[37] The latest authority on this subject is the decision of the British Columbia Court of Appeal in Keddie v. Canada Life Assurance Co., 1999 BCCA 541, [1999] B.C.J. No. 2165 (Q.L.), 179 D.L.R. (4th) 1, wherein the court upheld the trial judge who found, on facts more helpful to the victim than in this case, that there was no conduct or representation on the part of Canada Life to suggest to the outside world that the fraudulent agent was its agent. The following statement of Rowles J.A., at para. 37 of Keddie is particularly relevant:

The appellant appears to have been taken in by [the agent] personally rather than to have acted on the strength of, or in reliance on, his association with Canada Life or any other organization.

[38] The authority of Dusome was limited by his agency's contract with the respondent Axa Home to writing up applications for coverage and submitting them to the respondent Axa Home for approval. Any suggestion that Dusome had authority to issue a policy or binder, even on a temporary basis, on the motor vehicle involved in this accident, emanated from Dusome or was implicit in his actions in writing the name Axa Home Insurance Company on the blank forms used for both the applications and the temporary and final binders. There is no record of any representation of any kind having been made by the respondent Axa Home to anyone, much less to the father of the appellant, that there was any relationship between Dusome and the respondent Axa Home, even the limited one that did exist. Dusome might just as well have written in the name of Lloyd's London, England as insurer for all the legal effect his actions had in binding whomever he represented as his principal.

[39] Accordingly, there is no basis for the cross-appeal. I would dismiss it.

Costs

[40] This court heard two largely unrelated appeals. The one was by the appellant against Liberty Mutual, assuming, as transpired, that Liberty Mutual did not succeed in its cross- appeal against Axa Home. Therefore, the appellant should pay one set of costs of his appeal to Liberty Mutual. The other appeal was the cross-appeal of Liberty Mutual against Axa Home with the appellant taking no position. Liberty Mutual should therefore pay the costs of the cross-appeal to Axa Home. It will be up to the Assessment Officer to determine the respective amounts on assessment.

[41] WEILER J.A. (dissenting in part): -- The primary issue on this appeal is whether the no-fault benefits, payable under a standard automobile insurance policy in force in 1991, include payment for the care provided to the injured appellant, Sylvio Monachino ("Sylvio"), by his homemaker mother and self- employed father. If so, the appellant seeks an order that one of the respondent insurance companies pay no-fault care benefits up to the date of trial to the maximum amount allowable under the Statutory Accident Benefits Schedule, R.R.O. 1990, Reg. 672 ("the Schedule") plus prejudgment interest. Secondly, the appellant seeks a declaration that he is entitled to continue to receive care benefits until such time as the limits in the Schedule are exhausted.

[42] Section 7(1) of the Schedule relating to accidents after 1990 and before January 1, 1994 ("the 1990 Schedule") provides:

7(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person,

(a) the reasonable cost of a professional care-giver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting for the accident in caring for the insured person after the accident.

[43] Under s. 7(1), the insurer is obligated to pay for the care required by an insured person provided that the requirements of either cls. (a) or (b) are met. The maximum amount payable per month in each case is $3,000 to a total of $500,000. [See Note 1 at end of document]

[44] The respondents concede that Sylvio suffered severe head injuries and cognitive impairment, that he is incapable of independent living, and that he is entitled to payment of benefits in accordance with the Schedule provided that the requirements of s. 7 are met. With respect to the first issue, Keenan J., whose reasons are reported at (1997), 1997 26915 (ON CJ), 49 C.C.L.I. (2d) 105, dismissed the appellant's claim for payment of care benefits on the basis that the care provided by his parents did not fall within the meaning of s. 7. The trial judge held that, even if family members were entitled to claim for the value of services under s. 7, he would not have made any award because notice of the claim was not provided until after the two-year limitation period for making a claim had expired. With respect to the second issue, the trial judge held that, although there was no issue that Sylvio is totally and permanently disabled, it would be "contrary to the principles found in the no-fault insurance scheme" to grant declar atory relief. The trial judge's conclusion is primarily based on his finding that there is little evidence that a proposed plan of care, developed by the expert Ms. Jane Staub, would be implemented. Consequently, the trial judge was not satisfied that the proposed costs of care envisaged under the plan would be implemented. As a result, he dismissed the claim for a declaration.

[45] I have had the benefit of reading the reasons of Finlayson J.A. Like the trial judge, he has concluded that s. 7(1) does not provide for payment for the care provided by Sylvio's parents. Finlayson J.A. is also of the opinion that it would be premature to grant the declaration sought. As a result, he would dismiss the appeal.

[46] For the reasons that follow, I respectfully disagree with the conclusion that the appeal should be dismissed. Instead, I would hold, based on a purposive and contextual approach to s. 7, that the appellant is entitled to claim under s. 7 for the care he has been receiving from his parents. I would also make a declaration in favour of the appellant with respect to future care benefits.

The interpretation of s. 7

Section 7(1)(a)

[47] Section 7(1)(a) provides for payment of the "cost" to the appellant of care benefits when that care is provided by a "professional caregiver". In addition, if a parent who works outside the home gives up employment to care for the insured person, the parent is entitled to reimbursement for the loss of gross income. The appellant's parents, Mr. and Mrs. Monachino, do not hold any certificates evidencing completion of health care training. Mr. Monachino operates his own small business and, while he takes time from his work to supervise Sylvio and to take him to doctors' appointments, he has not given up employment per se or lost gross income. Mrs. Monachino was, and continues to be, a homemaker.

[48] The term "professional caregiver" is not defined in the Schedule. The evidence of Ms. Staub, the expert who testified with respect to a proposed plan of care for Sylvio, was that Sylvio's parents have become trained caregivers. Ms. Staub stated that Sylvio "requires support and encouragement even with small changes". Consequently, it is important that he receive care from "somebody with a degree of training and understanding". She stated, "It's not just ordinary support and encouragement, it's knowing the kind of support and when to give the encouragement". Ms. Staub also stated that an important aspect of caring for Sylvio is training and encouraging him to apply what he has learned in one situation to a different one. She expressed the opinion that ". . . given the supports from trained people such as his parents really have become, then learning to adapt to change can come about even though it is slow, over a long period of time" (emphasis added).

[49] Similarly, Dr. Cancelliere, a neuropsychologist who had treated the appellant for two years prior to trial, testified:

They [the plaintiff's parents] were also involved, I know, in terms of structuring his time, giving him tasks and activities to engage in. They were also very, very concerned about, you know, they kept coming to me with questions like, 'How should we handle an angry outburst?' 'What should we do with this particular problem or that particular problem?' So, to some degree, they had become an extension of the work that I was trying to do with him, the strategies that I was trying to instill in him.

[50] The appellant submits that the words "the reasonable cost of a professional caregiver" in s. 7(1)(a) should be interpreted as referring to the amount of money that would have to be paid to retain the services of a professional caregiver. I would agree. Just as the law has recognized that an expert need not hold a professional degree but may become an expert based on experience and practical training, so, too, it seems to me, a family member may become a professional caregiver based on experience and practical training. The evidence I have referred to supports the conclusion that, on the particular facts of this case, Sylvio's parents have become professional caregivers. I would, therefore, hold that, under s. 7(1)(a), Sylvio is entitled to payment for the equivalent cost of their services as a care benefit.

Section 7(1)(b)

[51] I now turn to the interpretation of s. 7(1)(b) which provides for payment of "all reasonable expenses resulting from the accident in caring for the insured person after the accident".

[52] The trial judge considered the Concise Oxford Dictionary definition of the word "expense" and held, at p. 122, that "the plain and ordinary meaning of the word 'expense' has to do with the expenditure of money or financial costs". He noted that Black's Law Dictionary defines the word "expense" as including the expenditure of "time, labour, resources and thought" and rejected this definition.

[53] Before deciding which interpretation of the word "expense" was appropriate, the trial judge was required to adopt a contextual approach and to ascertain the purpose of the provisions as a whole. In R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652 at p. 669, 171 D.L.R. (4th) 1, Iacobucci J., on behalf of the court, stated:

While reference to common parlance and standard dictionary definitions are often of assistance in interpreting legislative provisions, regard must be had not only to the ordinary and natural meaning of the words, but also to the context in which they are used and the purpose of the provisions as a whole: R. v. Lewis, 1996 243 (SCC), [1996] 1 S.C.R. 921. The most significant element of this analysis is the determination of legislative intent.

And, at p. 670:

As this court reiterated in Lewis, a legislative phrase should be given a meaning consonant with the purpose of the statutory provision unless the contrary is indicated, provided of course, that such an interpretation is consistent with constitutional limitations and conventional rules of interpretation.

[54] The interpretation to be given to an insurance statute is no different. In Bapoo v. Co-operators General Insurance Co. (1997), 1997 6320 (ON CA), 36 O.R. (3d) 616, 154 D.L.R. (4th) 385, Laskin J.A., on behalf of the majority, stated at pp. 620-21:

The modern approach to statutory interpretation calls on courts to interpret a legislative provision in its total context. The court's interpretation should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning. Professor Sullivan described the modern approach in the following passage in Dreidger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at p. 131 . . .

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of the proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[55] In order to ascertain the purpose of the legislation during the period with which we are concerned, namely 1990-1994, it is of assistance to consider how the legislation in force both before and after this period has been interpreted. If the legislation in force both before and after the period in question enables family members to be compensated for their services to the insured person, then the question is whether any change or hiatus was intended between 1990 and 1994. Legislative evolution is a tool that may be used as an aid in construing a statute, albeit with caution: Dreidger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at pp. 457-58.

The pre-1990 accident benefits schedule

[56] In Migliore v. Co-operators Insurance Assn. (1987), 1987 4158 (ON SC), 61 O.R. (2d) 452, 7 M.V.R. (2d) 259 (H.C.J.), the parents of a severely-injured child made a claim for payment under a standard automobile insurance policy in force in 1981. At that time, the applicable Schedule ("the pre-1990 Schedule") [No- Fault Benefits Schedule, O. Reg. 273/90] provided for payment of:

All reasonable expenses . . . as a result of such injury for necessary medical, . . . professional nursing and ambulance service and for any other service within the meaning of insured services under the Health Insurance Act and for such other services and supplies which are in the opinion of the physician of the insured person's choice and that of the insured's medical advisor essential for the treatment occupational retraining or rehabilitation of said person. [See Note 2 at end of document]

[57] O'Brien J. held that the pre-1990 Schedule should be given a large and liberal interpretation as the legislation was remedial. He interpreted the words "such other services", which modifies the word "expenses", as including compensation to family members.

[58] The trial judge in the current appeal distinguished the Migliore decision, at p. 121 of his reasons, on the basis that there was evidence that the services provided by the parents were essential for the rehabilitation of the child, and on the basis that the defence had made such a concession. Here, the respondents have conceded that Sylvio is permanently disabled and requires care. The only persons providing that care on a regular basis are his mother and his father. The respondents have conceded that if Sylvio's parents were not providing the care he is presently receiving from his parents, he would have to purchase that care because he is incapable of caring for himself. The defence has, therefore, conceded that the services provided by Sylvio's parents are necessary for his care. Migliore, supra, cannot be distinguished on the basis set forth by the trial judge.

[59] The trial judge also noted that in Migliore the insurer's submission that the claim should properly have been made under the Family Law Reform Act was not dealt with. The case law suggests, however, that it is inappropriate for a trial judge to consider the issue of double recovery unless the insurer, who has the onus of establishing that a payment would amount to double recovery, has adduced the requisite facts in support of the submission. A bald allegation of double recovery will not suffice: see Stante v. Boudreau (1980), 1980 1875 (ON CA), 29 O.R. (2d) 1 at p. 4, 112 D.L.R. (3d) 172 (C.A.).

[60] Based on the Migliore decision, the accident benefits schedule that existed prior to 1990 was interpreted in a manner that permitted an injured person to receive payment for the caregiving services provided by his parents.

The post-1994 accident benefits schedule

[61] The Schedule in force on or after January 1, 1994 [Statutory Accident Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93] ("the post-1994 Schedule") provides for supplementary medical benefits to be paid by the insurer for "all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for . . . other . . . services that the insured person requires". This phrase is found in s. 40(5), which deals with rehabilitation payments. Similarly, in relation to care benefits, the insured is entitled in s. 47(1) (a) to "all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for . . . services provided by an aide or attendant" (emphasis added).

[62] Section 47(2) provides:

47(2) For the purposes of clause (1)(a), an aide or attendant may be any person who is capable of providing the services, including a family member or the insured person, even if the aide or attendant does not possess any special qualifications.

(Emphasis added)

[63] The wording in s. 47(2) indicates that, after the period in issue in this appeal, the word "expense" is interpreted by the legislature as including the expenditure of time and labour by a family member in caring for the injured insured, and not just the expenditure of money.

[64] When the legislation was considered in the Standing Committee on Finance and Economic Affairs of the Ontario Legislature on January 26, 1993, the principal features of the Bill were described for the committee members by the deputy minister. In relation to the care benefits he stated, at F-428:

Long-term care, or attendant care as it is referred to in the draft regulation, will no longer be subject to a $500,000 life-time cap, and the maximum monthly benefit of $3,000 will now be indexed . . .

Entitlement to attendant care benefits has been clarified by describing attendant care as the services provided to assist the insured person in performing the activities of daily living . . .

(Emphasis added)

[65] The legislation with respect to benefits after 1994, therefore, makes it clear that an insured person is entitled to be compensated for the care provided by his parents even if the parent does not possess any special qualifications. Furthermore, based on the prepared presentation of the deputy minister at the time, the intention of the legislature was not to extend a new benefit. Rather, the purpose of the stated change in wording was to clarify an existing benefit.

[66] Thus, both before and after the period 1990-1994, an injured person is entitled to be paid for the care provided by his or her parents.

The accident benefits schedule in force in 1991

[67] Was any change intended during the period in question here? One of the major research reports prepared in anticipation of the creation of the 1990 Schedule with which we are concerned was the Report of Inquiry into Motor Vehicle Accident Compensation in Ontario (1988) (the Osborne Report). [See Note 3 at end of document] At p. 573, the report addresses the issue of compensation to family members for long-term care to an injured insured as follows:

The family of the injured person should not be excluded from long-term care compensation entitlement. Reasonable family participation in long-term care should not be discouraged, but rather encouraged. The long-term care benefits should be paid to the injured person so as to permit the injured person as much freedom of movement as can be built into the system.

[68] The authors of the text Financial Services Commission of Ontario (Motor Vehicle Insurance) Law and Practice, vol. 2, James M. Flaherty and Catherine Zingg (Aurora: Canada Law Book, 1999), comment as follows, at p. 3:0202, concerning the care benefits provisions in s. 7 of the 1990 Schedule:

The care must be "required" by the insured person (s. 7(1)) which imposes a standard of need, and the costs must be "reasonable" (s. 7 (1)(a) and (b)) . . . .

The other care benefits coverage is broadly defined as "all reasonable expenses resulting from the accident in caring for the insured person after the accident" (s. 7(1)(b)). This may be read with the supplementary medical and rehabilitation benefits provided in s. 6(1)(f), "Other Goods and Services Whether Medical or Non-Medical in Nature", and s. 6(2) relating to expenses incurred by family members visiting the insured person during his or her treatment and recovery. The care benefits coverage in s. 7(1)(b) is not confined to family members and presumably would cover the transportation and other visiting expenses incurred by non-family members "in caring for the insured person after the accident."

[69] The quotation illustrates the authors' view that care benefits under s. 7(1)(b) are payable to an injured person for care received from family members. Their conclusion appears to be based on a number of awards and decisions that are mentioned at pp. 3/40-3/42. The first is MacAulay (CC/07000), in which the applicant was awarded payment for cooking and cleaning performed by her husband. Also mentioned is Ferreyra (CC/ 00430), where the insured persons were entitled to be reimbursed for certain services performed by their 19-year-old son. The services included housekeeping, meal preparation, laundry and shopping activities. An allowance was also made to the son for assisting his parents to attend medical appointments and for acting as an interpreter. In Bush (CC/ 01790), the applicant's spouse provided home care services and the Ontario Insurance Commission awarded her compensation for her services. In McNutt, the applicant requested and was awarded compensation for her spouse driving her to and from medical attendances. In these cases, reimbursement was calculated at the minimum wage rate for adults during the relevant time period. Reimbursement was not contingent on demonstrating lost wages of the caregiver.

[70] The trial judge referred to the decision by the Commission in Bush and simply stated that he did not agree with it. He preferred the reasoning in another decision by the Commission, Whitney v. Co-operators General Insurance Co. (March 31, 1993), Doc. A-001005, which held that, "Care provided by relatives or friends, for which no loss is incurred or payments made is not compensable under section 7". The weight of authority appears, however, to support the interpretation that family members are entitled to be compensated under s. 7(1)(b). These decisions accord with the Osborne Report's comments.

Other similar provisions

[71] The trial judge compared the wording respecting rehabilitation benefits contained in s. 6(2) of the Schedule with wording respecting care benefits in s. 7 of the 1990 Schedule and noted that they were similar. Section 6(2) provides:

6(2) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident an allowance that is reasonable having regard to all of the circumstances for expenses actually incurred by a spouse, child, grandchild, parent, grandparent, brother or sister of the insured person in visiting the insured person during his or her treatment or recovery.

(Emphasis added)

[72] The trial judge stated that it was clear that both ss. 6(2) and 7 were "intended to indemnify a person who has suffered a loss of income or has incurred an out-of-pocket expense". [See Note 4 at end of document] The trial judge cited no authority for the interpretation he gave to the word "incurred" in s. 6(2).

[73] Comparing the language of ss. 6(2) and 7(b) is helpful in determining the scope of s. 7(b). Section 6(2), which has nothing directly to do with this case, applies to a restricted group of family members who "actually incur" expenses when visiting the insured injured person during his treatment or recovery. By contrast, the language in s. 7(b) is more general. It does not refer to expenses actually incurred but to expenses "resulting from the accident in caring" for the injured insured. In my opinion, had the legislature intended that the schedule require that expenses in s. 7(b) be "actually incurred", the language in s. 7(b) would have clearly said so in the same terms as the language used in s. 6(2). The words "resulting from the accident" are words that are broader in scope and the emphasis is on caring. The trial judge did not take account of the broader language of s. 7(b).

[74] Even if s. 7(b) were to be read as if the words "expenses incurred" were present, payment to family members would not necessarily be excluded. To refer to a U.S. example that is very much on-point, in Van Marter v. American Fidelity Fire Insurance, 318 N.W.2d 679 (Mich. App. 1982), the Court of Appeals of Michigan dealt with the interpretation of insurance benefits under similar legislation that provided payment for:

Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care recovery or rehabilitation.

(Emphasis added)

[75] The court held that the phrase should be interpreted so as to provide for payment to the appellant's stepmother for the care of her injured adult stepson. She served him meals in bed, bathed him, escorted him to the doctor's office, exercised him in conformity with the doctor's instructions, assisted in formulating his diet, administered medication, and assisted him with speech and associational problems and exercises. The court concluded that the legislature could not have intended the insurance company to receive a windfall by reason of the fact that the claimant's stepmother performed these services. Noting that the insurer would be liable for the services if they were performed by non-relatives, the court concluded at p. 683:

If we were to accept defendants' reading of . . . [the legislation], we would penalize both the injured insured and his family for providing care which would otherwise be performed by a less personalized health care industry.

I would make the same observation in the case at hand.

[76] The decision in Van Marter, supra, is not unique. [See Note 5 at end of document] The terms of the Uniform Motor Vehicle Accident Reparations Act (UMVARA) provide for reimbursement for an "allowable expense". The commentary on the Act in American Jurisprudence, 2nd ed., Vol. 7A (1997) at title 513, at p. 333, states:

Payments may be made to a family member as well as to a treatment center.

[77] Similarly, Couch on Insurance, 3rd ed., at title 171:63, at p. 171-86, comments:

Stated otherwise, nothing in a no-fault statute suggests that a product or service must be provided by a licensed health- care provider in order to constitute an allowable expense: rather the focus of the statute is on whether a product or service is reasonably necessary for the injured person's care, recovery, or rehabilitation.

[78] Where, as here, there is a paucity of Canadian authority to deal with a question involving insurance law, American authorities are entitled to the highest consideration based on their discussion of the issues involved: Kirkness Estate v. Imperial Life Assurance Co. of Canada (1993), 1993 8522 (ON CA), 12 O.R. (3d) 285 at p. 289, 99 D.L.R. (4th) 391 (C.A.).

[79] The Van Marter decision was applied in MacDonald v. Travelers Indemnity Co. of Canada (1987), 1987 4062 (ON SC), 60 O.R. (2d) 385, 42 D.L.R. (4th) 204 (H.C.J.), a case in which an Ontario resident was severely injured in an automobile accident in Michigan. The facts in MacDonald gave rise to initial litigation concerning whether the law of Michigan or the law of Ontario should apply. This court held, in Travelers Canada v. MacDonald (1984), 1984 1840 (ON CA), 48 O.R. (2d) 714, 14 D.L.R. (4th) 88 (C.A.), that Travelers, by the terms of its contract, had agreed to be governed by Michigan law in the determination of its liability for no-fault benefits and that no-fault benefits were payable.

[80] Following this decision, Osler J. was required to determine whether home care, as opposed to institutional care, was "reasonably necessary" for the injured insured, the products, services and accommodations reasonably necessary for the insured's care, what charges were reasonable, and, finally, the meaning to be given to the word "incurred" in s. 3107 of the Michigan Insurance Code.

[81] On the authority of Van Marter, supra, counsel for the insurer agreed that the law of Michigan acknowledged that the services of a relative could properly be compensated provided that the services came within the provisions of s. 3107 of the Michigan statute.

[82] The insurer resisted the claims, however, on the basis that it had not been established that they had been "incurred" at the time the claims were made. Before us, the respondent insurers make the same argument, particularly in relation to the question of whether there should be a declaration that Sylvio is entitled to care benefits, an issue with which I will deal later.

[83] Osler J. noted that one of the definitions of the word "incur" in the Shorter Oxford Dictionary was "to render oneself liable to". He concluded, at p. 434 of his reasons, that, in the context of the legislation, the word did not require a legal obligation to make payment to another before expenses could be said to have been incurred. He held that, if a reasonable necessity for the item claimed was established and the cost of obtaining the service or product was shown, the expense could be said to have been incurred and the insurer was obliged to make payment.

[84] In the case at hand, even if s. 7(b) is read as having the word "incurred" in it, I agree with Osler J. that it is sufficient to show what the equivalent cost of providing the service is in order to trigger the obligation of the insurer to pay. As stated by Osler J. at p. 434 in relation to the injured insured girl:

Suppose, for example, Lynne MacDonald had not had the support of her family and had been destitute. She could never have made payments with respect to her care or rehabilitation and thus made herself entitled to be reimbursed. It seems to me that if a reasonable necessity for the item claimed is established and the cost of obtaining the service or product is shown, the expense may be said to have been incurred and the obligation to pay within 30 days must then be assumed by the defendant.

[85] The further submission of the respondents is that no expense is "incurred" because there is no likelihood that Sylvio will receive a bill from his parents. This is a reversion to the submission that a family member is not entitled to compensation, a submission with which I have already dealt. One further comment is warranted in this regard, however. Prior to 1990, the Schedule placed heavy stress on medical and related services and supplies, and payment was conditional upon the opinion of the insured person's physician and that of the insurer's medical adviser. At the date of Sylvio's accident, the Schedule had been amended to place the emphasis on the insured's "care" in a broader and much more flexible framework. As such, the legislation concerning care benefits in the period in question was broadened, not narrowed. Having regard to the broader approach to the provision of benefits and to the Osborne Report, it seems unlikely that the legislature intended to remove the ability of family members to be compensated for care provided to an insured person that had been judicially recognized in Migliore.

The purposes of the Schedule

[86] Interpreting the 1990 Schedule so as to enable payment to family members for the care that they provide also accords with the purposes of the 1990 Schedule. One of the purposes of the no-fault accident benefits in the 1990 Schedule is to benefit the injured insured person by ensuring that he or she receives needed care. In other words, the injured insured is entitled to reasonable and fair compensation. By providing that the insured receive the payment, as opposed to those providing the care, the legislature intended to give the insured the maximum choice as to who would provide necessary care. It is clear that the legislature intended that choice to include a parent, in as much as a parent who gives up employment outside the home is entitled to be reimbursed for lost gross income. The respondent's interpretation of the 1990 Schedule would lead to inequality between parents who are employed outside the home and those who have chosen to be homemakers or to be otherwise self-employed. There is no disce rnible policy reason to adopt an interpretation that promotes such inequality.

[87] A second purpose of the 1990 Schedule is to protect policy holders from escalating insurance premiums by limiting the amounts that injured persons are entitled to recover to what is reasonable, in order to avoid unreasonable overcompensation. At the same time, however, the legislature could not have intended that the insured person should be undercompensated and that the insurance company receive a windfall whenever a close relative reasonably cares for the injured insured. The respondent does not suggest that Sylvio would receive better care if his parents did not care for him. I fully subscribe to the view that to force the injured insured to forgo care provided by a loved one who knows the injured person intimately, in favour of a less personal health care provider who does not have this background knowledge is to unduly penalize the injured insured. To interpret the legislation in the way suggested by the respondent would lead to a conflict between the legislation's purpose of providing fair compen sation to an injured insured, and its purpose of providing reasonable compensation in order to keep insurance premiums down. On the other hand, if the legislation is interpreted so as to include payment to the insured for the necessary and reasonable care provided by a family member, both purposes of the legislation may be harmonized. The trial judge does not appear to have given sufficient appreciation to the need to harmonize these dual legislative purposes.

[88] When s. 7 is read as a whole, it becomes obvious that a third purpose of the section is an evidentiary one aimed at protecting insurers against fraudulent claims. To allow the evidentiary requirements of the section respecting a claim for care benefits to dictate a narrow interpretation of its overall provisions, however, is not appropriate, especially bearing in mind the purpose of the section to provide fair compensation to the injured insured.

[89] Given the concession that Sylvio is permanently disabled and requires long-term care, there can be no suggestion that Sylvio's claim, on behalf of his parents, is fraudulent. It may be, as the trial judge found, that the overall extent or monetary value of the care provided has been exaggerated. That factual finding would affect the quantum of care benefits; it would not, however, lead to the conclusion that the entitlement to claim for care benefits is negated outright. All of the evidence supports the conclusion that Sylvio's parents are providing much-needed physical and psychological care to him. Indeed, it is worth repeating that the respondents concede that Sylvio's parents are providing the care he needs.

[90] Finally, in deciding whether to apply a restrictive or liberal interpretation of the words in the section, I would simply mention that s. 10 of the Interpretation Act, R.S.O. 1990, c. I.11 supports a liberal construction of remedial legislation. In addition, the word "care" in a policy of insurance was given a liberal, non-literal interpretation by this court in Kirkness Estate, supra. The court held that the requirement in the insurance policy that the insured be under the regular care of a psychiatrist in order to receive benefits should not be read literally. The purpose of the requirement was an evidentiary one intended to protect insurers from fraudulent claims. Because the insured was permanently disabled, the requirement that the insured be under the care of a psychiatrist was futile. The court held that to insist on compliance with this requirement would defeat the purpose of the policy, which was to provide indemnity in the case of permanent disability. It would be somewhat anomalous for this court to take a broader, non-literal approach to the interpretation of a private contract of insurance than to the interpretation of remedial legislation aimed at providing fair benefits to injured persons.

Conclusion regarding s. 7(1)(b)

[91] Both before and after the relevant time period, the word "expense" in the legislation was interpreted inclusively as allowing a permanently disabled insured person to claim for the expenditure of time and effort by members of his family. There is no suggestion that the legislature intended a different result in the period in question here. The usage of the same word, "expense", the recommendations contained in the Osborne Report, and the broader phraseology with respect to care all suggest the opposite conclusion. Courts in the United States have also interpreted similarly worded and structured no-fault provisions respecting expenses for the care of the insured to include payment for services rendered by family members. Interpreting the word "expense" so as to permit payment to the appellant for the care being provided by his mother does not offend the legislative text and is in harmony with all of the purposes of the legislation.

[92] Accordingly, I would hold that the appellant is also entitled to claim for the care provided by his parents under s. 7(1)(b).

Section 6(1)(f)

Section 6(1)(f) of the 1990 Schedule provides:

6(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(f) other goods and services, whether medical or non- medical in nature, which the insured person requires because of the accident.

[93] The reasoning with respect to s. 7(1)(b) above is equally applicable to s. 6(1)(f). Accordingly, I would hold that the appellant is entitled to claim for care provided by his parents under this section as well. I note that the limitations on payment contained in s. 6(3) as applied to this case are the same as those respecting s. 7.

The Request for a Variation of the Trial Judge's Order and the Request for an Order for Payment of Care Benefits

The limitation period

[94] In as much as the appellant requests an order varying the trial judgment by ordering that one of the respondent insurance companies pay the maximum amount to the date of trial, it is necessary for me to deal with the trial judge's comment at p. 124 of his reasons:

Even if family members were entitled to claim for the value of services under the No Fault Schedule, the claim in this case would fail. The first notice of a claim for care benefits was the letter from Thomson Rogers to Liberty Mutual dated August 8, 1994. There are no details given in those documents in support of the claim. The issue of care benefits was not resolved by mediation November 15, 1994. The mediation report referred to the Interim Agreement of August 25, 1992 and the issue whether it was still in effect and whether it could be enforced.

As such, I will review in some detail the relevant provisions in the 1990 Schedule, as well as the relevant facts that were before the trial judge.

[95] The relevant notice provision is contained in s. 22 of the 1990 Schedule. It provides:

22(1) The insured person or the person otherwise entitled to make a claim shall,

(a) give initial notice of a claim to the insurer, in writing, within thirty days from the date of the accident or as soon as practicable thereafter; and

(b) furnish to the insurer within ninety days of the giving of the notice under clause (a) a completed application for statutory accident benefits respecting the accident and the resulting loss.

(2) A failure to comply with a time limit set out in subsection (1) does not invalidate a claim if the claimant has a reasonable excuse and so long as there is compliance within two years of the accident.

24(8) If the insurer refuses to pay an amount claimed in an application for statutory accident benefits, the insurer will forthwith give written notice to the insured person giving the reasons for the refusal.

Section 25 states:

25. No person may commence a mediation proceeding under section 280 of the Insurance Act in respect of benefits under this Regulation unless the requirements of section 22 have been satisfied and the insured person has made himself or herself reasonably available for any examination required under section 23.

[96] The automobile accident occurred on November 12, 1991. In early December, 1991, the appellant's father notified Axa Insurance, whom he believed to be his automobile insurer, that a claim would be made under his Axa policy. An undated application for accident benefits was submitted to the respondent Axa on behalf of Sylvio Monachino in or about January 1992. Due to a dispute between Axa and Liberty Mutual as to who was responsible for payment of the appellant's no- fault benefits, he was initially left without benefits.

[97] On February 24, 1992, the appellant's counsel wrote to counsel for Liberty Mutual requesting payment for benefits to cover cognitive rehabilitation for the appellant with Dr. Cancelliere, a psychologist. The trial judge found that these payments were made on a timely basis.

[98] On May 12, 1992, mediation failed to resolve the issue of Axa's denial of coverage. Finally, on August 25, 1992, an interim agreement was reached between the appellant, Axa and Liberty Mutual to each pay 50 per cent of the benefits owing to the appellant. The agreement states that "all outstanding medical and rehabilitation claims will be paid promptly". It was to remain in force until May 31, 1993 and arbitration on the issue of Axa's liability was to take place by February 28, 1993. Liberty Mutual was to be the lead insurer under the agreement. The trial judge found that, for some reason never explained, the arbitration did not take place.

[99] In July 1994, the appellant's counsel applied for a mediator on an Ontario Automobile Insurance Application Form 6.

[100] At the request of the appellant's counsel, Dr. Franks examined the appellant and produced a report dated August 4, 1994. The 11-page report discusses the accident, the physical injuries to the appellant, the impact of these injuries on the appellant's behaviour and personality, the appellant's treatment since the accident, the role of the appellant's parents in providing care and prospects for the appellant's future care.

[101] Upon receipt of this report, the appellant's counsel promptly wrote to Liberty Mutual on August 8, 1994 and stated: "Please take notice that a claim for care benefits in the amount of $3,000 per month is being made". Attached to the letter was a list of care duties provided by the appellant's mother. The trial judge found that, "[t]here was no response from Liberty Mutual at that time to the demand for care benefits".

[102] On October 11, 1994, the appellant's counsel again wrote to Liberty Mutual again enclosing Dr. Franks' report, as well as copies of three reports prepared by Dr. Cancelliere, and copies of the appellant's medical records from the Mississauga Hospital.

[103] On October 24, 1994, Liberty Mutual denied the appellant's claim for care benefits with this statement:

The applicant has not submitted any claim which represents an expense incurred in respect of the reasonable cost of a professional caregiver nor has the applicant submitted a claim representing an amount of gross income reasonably lost by a person in caring for the applicant.

[104] On November 15, 1994, the mediator completed a report which noted a dispute between the parties over whether the interim agreement of August 25, 1992 was still in force. According to the trial judge: "[t]he issue of Axa or Liberty Mutual liability remained unresolved" and "the issue of care benefits was stalemated."

[105] Section 22 of the 1990 Schedule requires that a "claim" be made within certain time periods. The 1990 Schedule does not state that a claim must be made for all specific types of benefits being claimed. In this case, a claim was made by the appellant approximately one month after the accident.

[106] Section 24 requires that the insurer give written notice of the reason for refusing to make payment on a claim. In its 1994 response to the appellant's notification that he was claiming care benefits, the respondent insurer did not state, as a reason for refusing payment, the fact that the benefits claimed were in addition to rehabilitation benefits that had previously been paid.

[107] The interim agreement between counsel states that its purpose is to fund no-fault accident benefits. Section 25 stipulates that no mediation in respect of benefits can take place unless the requirements of s. 22 have been satisfied, including, therefore, the requirement respecting timely notification of the claim. In as much as mediation did take place, it would appear that the respondents were satisfied that there had been sufficient compliance by the appellant with the requirements respecting notice of the claim. Further, the statements of defence do not raise a defence based on the limitation period, and neither of the respondents' facta filed on this appeal contain the submission that the claim is out of time. Thus, the limitation period was not in issue at the trial before Keenan J. and it is not in issue on this appeal.

[108] In any event, I would conclude that such an argument is untenable, having regard to the particular facts of this case. In as much as the accident occurred on November 12, 1991, the application for no-fault accident benefits that was submitted in or about January 1992 was sufficient and timely notice to the insurers, within the two-year period, that benefits were being claimed. As such, this claim acted as an umbrella for the subsequent care benefit claim which was advanced after the permanence and gravity of Sylvio's injuries were outlined in Dr. Franks' report of August 1994. The claim for care benefits was made in a timely manner following this report. The respondent is therefore entitled to an order varying the trial judgment and ordering payment of care benefits.

The appropriate quantum for care

[109] I now turn to the question of the monetary amount that should be ordered with respect to the claim for care benefits.

The trial judge's comments concerning quantum

[110] The trial judge stated at p. 124:

Even if it could be found that the 24 hour family watch at the hospital was an "expense" on the part of the family members, it would be extremely difficult to classify it as "reasonable" entitling the family to claim compensation for the full amount of that time when Sylvio was under the active care of the hospital staff including doctors, nurses, technicians and other staff. For the most part, the care giving was provided by the hospital staff and the attendance by Monachino family members was largely redundant.

[111] With respect to the day-to-day care that Sylvio presently receives from his family, the trial judge observed at p. 125:

While there is no doubt that Sylvio is today very much dependent upon his mother for his care, it is difficult to accept the sharpness of the contrast that was sought to be drawn between the present condition and the pre-accident condition. Clearly the evidence on this issue was exaggerated.

Exaggeration invites skepticism. It calls into question both the motives and the reliability of the witness. There can be no doubt that today Sylvio's mother devotes her time to selflessly and lovingly, with great personal sacrifice and anguish, to the care of her injured son. It would be unthinkable for her not to respond in that way. She summed it up quite eloquently with the simple statement "I'm his mother". The suggestion that all that care is provided always at times independent of regular household activities is simply inconsistent with reality. The assertion that this loving, caring, traditional mother did not provide any of those services to her son before the accident is incredible. The only reasonable conclusion to be drawn is that the sharp contrast between the care before and after the accident was created to maximize the number of hours of care resulting from the accident. It is highly unlikely that this tactic was conceived by Sylvio's mother. It appears, rather, to be part of an overall doll ar-driven plan to obtain maximum recovery under the No Fault Schedule.

[112] The trial judge then digressed to indicate that s. 61(2)(d) of the Family Law Act, R.S.O. 1990, c. F.3, provided for an award of damages for services provided by a family member in a tort action and that the tort action had been settled for the limits of the policy although the details of the settlement were not disclosed. He was concerned about the possibility of double recovery, and explained that, in the event that he was found to be wrong in excluding recovery under s. 7(1)(b) of the 1990 Schedule, any evaluation he put on the family's services would meet with the same problem of possible double recovery. The trial judge concluded:

Furthermore the state of the record is such that I cannot make any reasonably reliable determination of the amount of the time claimed that could be compensable. As noted, the claim for the 1008 hours for care and services while Sylvio was in the hospital takes no account of the fact that Sylvio was being attended by doctors, nurses and other hospital staff. Similarly, the record does not permit any reliable calculation of the amount of care given at home as a percentage of the grossly exaggerated total claimed. I, therefore, must decline to attempt any such calculation, not simply because of the difficulty involved, but because the state of the record does not permit it.

Discussion respecting quantum

[113] It is beyond dispute that the care provided to patients in a hospital is less than optimal in many cases. That family members can and do provide reasonably necessary care to an injured insured while in the hospital was recognized in MacDonald, supra. Osler J. concluded at p. 425 that, even during the period of hospitalization, the insured's parents provided valuable services to her and that in the circumstances these services were "reasonably necessary for her care and rehabilitation". While Osler J. was satisfied that the insured's parents devoted substantial time to her rehabilitation, he also found that much of the time at the hospital represented visiting and nothing more. Osler J. accepted the approach of the defendant which acknowledged an average of two hours per day devoted by each parent to their daughter's care while in hospital.

[114] Here, Sylvio was in the hospital for about six weeks. His parents testified that, during this time, they engaged in specific rehabilitation and care activities. Examples are accompanying and supervising the appellant on walks outside of his room, reminding him about his past and introducing him to friends and family whom he did not remember, and helping him to cope with his depression. In addition, his parents helped to coordinate his care with the various doctors. Bearing in mind, however, the trial judge's comments that the care of family members while Sylvio was in the hospital was largely redundant, I would allocate an arbitrary figure of just over two hours per day or 100 hours as "reasonably necessary for care and rehabilitation" of Sylvio during this time period.

[115] The trial judge also reasoned that, because Sylvio's mother did his laundry and cooked his meals prior to the accident, she should not be compensated for performing these tasks after the accident. Parents typically look after children throughout childhood and often into their years of post- secondary education in one fashion or another. So long as Sylvio would have been expected to stay in school to complete his education, it may be that the respondents could make a case for paying a reduced amount for Sylvio's post-accident care.

[116] I am not aware of any evidence that suggests that, prior to his accident, Sylvio planned to live at home and have these tasks performed by his mother for the rest of his life. On the contrary, Ms. Staub testified that, prior to the accident, the appellant was "totally self sufficient, relative to someone else his age". In the normal course of events, most children separate from their parents and become completely independent. But for the accident, there appears to be no reason to think that Sylvio would not have done the same.

[117] The undisputed medical evidence is that Sylvio has been left with cognitive deficits and that he will never regain the self-sufficiency he had and will never be able to live independently away from home. His condition will deteriorate, rather than improve, over time. Because of Sylvio's head injuries, the nature and extent of the domestic tasks performed by Sylvio's mother has also changed as a result of the accident. Dr. Cancelliere testified that Sylvio is now quite forgetful and would be at risk of forgetting something on the stove if left alone in the kitchen. A normal adult does not require supervision, for safety reasons, while heating up a prepared meal.

[118] Because Sylvio is permanently disabled, he will not be able to leave home and live independently in the same way as most other people at his stage in life. Whether or not he continues to live with his family, he will continue to require supervision. The trial judge erred in his assumption that Sylvio's mother was obliged to go on providing unpaid care services for her son, out of natural love and affection, for the rest of her or Sylvio's life, merely because she did so prior to the accident.

[119] The trial judge emphasized that some of the care provided by Sylvio's parents -- and in particular his mother -- included household chores such as cooking meals and doing laundry. The unfortunate effect of this emphasis was to downplay the necessity of the care that the parents have provided, in the context of the appellant's injuries. Among the extensive expert evidence ignored by the trial judge, for example, was Ms. Staub's testimony that Sylvio's parents, since the accident, "are helping him, cueing him to make executive function decisions that otherwise his own non-impaired frontal brain would be able to make". Further, in structuring his day for him, the appellant's parents were "for the most part . . . doing what he needs to have done".

[120] Similarly, Dr. Franks testified that, since the accident, Sylvio's parents have provided care to meet his need for daily supervision and assistance. It was "necessary" for them to do so, he testified, "they, in essence, really didn't have any choice". I referred earlier to some of the relevant portions of Dr. Cancelliere's testimony, but worth repeating is his testimony that Sylvio's parents, in providing him with care, "had become an extension of the work that I was trying to do with him". None of this expert evidence concerning the necessity of the care provided by the parents was contradicted at trial.

[121] In order to make Sylvio independent of his parents in the future, Ms. Staub recommended that he be provided with a life skills coach for 30 hours a week during the first year, and for 20 hours a week thereafter, at an estimated rate of $21 per hour, for 50 weeks a year. Ms. Staub recommended an additional $52 per month to pay for the life skills coach to accompany the appellant on outings. Also, Dr. Cancelliere testified that he could see an individual working with Sylvio two to four hours a day to help him manage the tasks of daily living, structuring his time, accompanying him on outings, and assisting him with social integration.

[122] In addition to the life skills coach, Ms. Staub recommended a case manager be provided for three hours a week during the first year, and two hours a week thereafter, at an estimated cost of $90 per hour, as well as a housekeeper to perform heavy cleaning for the appellant in his own home once a month, at an estimated cost of $60 per month.

[123] Ms. Staub testified that most of the duties that would be performed by a care manager and life skills coach are currently provided by Sylvio's parents. I am of the opinion that the evidence of Ms. Staub and Dr. Cancelliere provides a sufficient basis in the record on which to assess the approximate number of hours of care per week that the appellant is receiving from his parents. Aside from housekeeping and the preparation of meals, that total amounts to roughly 33 hours per week the first year following Sylvio's discharge from hospital and 22 hours per week thereafter.

[124] Ms. Staub testified that, in circumstances such as the present, she would normally apply a non-professional rate of $15 per hour for care services. In decisions such as O'Brien, supra, non-professional family members have been compensated for care provided to an injured insured persons at the hourly rate of the adult minimum wage rate. Based on a review of all of the expert evidence at trial, I do not think that the minimum wage adequately reflects the level of responsibility assumed by Sylvio's parents for his care. In the circumstances of this case, and particularly in consideration of Ms. Staub's testimony, I am of the opinion that an hourly rate of $12 per hour is appropriate up to the date of trial. I would apply this rate for 52 weeks per year, rather than 50, since Sylvio's parents cared for him on a full-time basis. Applying these figures, the appellant's parents are entitled to recover the following for care services provided:

Year One: 1,716 hours (33 hours per week times 52 weeks) times $12 per hour for a total of $20,592.

Year Two and subsequent years to the date of trial: 1,144 hours (22 hours per week times 52 weeks) times $12 per hour for a total of $13,728 per year.

I would apply the same rate of $12 per hour to the 100 hours of care I have allocated was given to Sylvio by his parents during his stay in the hospital.

Concerns regarding double recovery

[125] Before ending the discussion, I must deal with the spectre of double recovery raised by the trial judge. As I have indicated earlier, it was not appropriate for the trial judge to consider double recovery in as much as the onus is on the insurers to establish that double recovery would result, and they failed to do so in this case: see Stante v. Boudreau, supra.

[126] Furthermore, it is questionable whether the no-fault benefits received by the appellant would be deductible having regard to s. 63 of the Family Law Act. That section states:

63. In assessing damages in an action brought under this Part, the court shall not take into account any sum paid or payable as a result of the death or injury under a contract of insurance.

[127] In addition, the persons entitled to maintain an action under s. 61 of the Family Law Act are the appellant's parents. Section 267(1)(a) of the Insurance Act, R.S.O. 1990, c. I.8, amended S.O. 1990, c. 2, provides that damages awarded to a person from the use of an automobile are to be reduced by the no-fault benefits received by that person. The person in s. 267(1)(a) is the appellant, and not his parents.

The Claim for a Declaration

[128] The appellant seeks a declaration that he is and shall continue to be entitled to receive weekly care benefits under the no-fault schedule until such time as the limits set out in the 1990 Schedule are exhausted. Having found that Sylvio is entitled to weekly care benefits under the 1990 Schedule, on the basis that they are reasonable and necessary, I would order that he receive these benefits until such time as the limits set out in the 1990 Schedule are exhausted, or until it is established that such benefits are no longer reasonable and necessary.

[129] In light of my earlier conclusion, such a declaration is not hypothetical and it involves the resolution of a very real and significant dispute between the parties.

[130] In the event that Sylvio's parents are unable, whether due to age, infirmity or just plain burnout, to continue to care for him, it may be that the question of the level of care benefits will need to be revisited so that it more accurately reflects the market costs of substitute professional care.

The Cross-Appeal

[131] I agree with Finlayson J.A.'s disposition of the cross- appeal.

Costs

[132] I would order that the appellant is entitled to his costs of the appeal and of trial. I agree with Finlayson J.A. that, as the appellant took no position on the cross-appeal, no costs on the cross-appeal should be awarded to the appellant and that Liberty Mutual should pay the costs of the cross- appeal to Axa Home.

Appeal and cross-appeal dismissed.

Notes

Note 1: Section 7(2) and (3) of the Schedule.

Note 2: At that time the legislation did not make a distinction between services for care and services for rehabilitation.

Note 3: The other major research reports prepared in anticipation of the creation of the 1990 schedule were the Final Report of the Ontario Task Force on Insurance (1986); and the Report of the Ontario Automobile Insurance Board (1989). Only the Osborne Report specifically addressed the question of compensation of family members for care.

Note 4: Section 6(2) reads: "The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident an allowance that is reasonable having regard to all of the circumstances for expenses actually incurred by a spouse, child, grandchildren, parent, grandparent, brother or sister of the insured person in visiting the insured person during his or her treatment or recovery".

Note 5: See also, to the same effect, Visconti v. Detroit Auto Insurance Exchange, 90 Mich.App. 477, 282 N.W.2d 360 (1979); Maida v. State Farm Mut. Auto. Ins. Co., 66 App.Div.2d 852; 411 N.Y.2d 386 (2nd Dept. 1978).