Daly v. ING Halifax Insurance Co.

85 O.R. (3d) 70

Court of Appeal for Ontario,

Juriansz, MacFarland and LaForme JJ.A.

December 21, 2006

Insurance -- Automobile insurance -- Statutory accident benefits -- Attendant care benefits -- Hourly rate for attendant care mandated by law and not subject to discretion -- Statutory Accident Benefits Schedule -- Accidents After December 31, 1993 and Before November 1, 1996, O. Reg. 776/93, ss. 47(1), 47(9), 50(12).

The insured suffered a severe brain injury in a motor vehicle accident and required attendant care 24 hours per day, seven days per week. The insurer paid attendant care benefits to the insured based on Part II or minimum wage hourly rates as set out in Form 1 and s. 50(10) of the Statutory Accident Benefits Schedule -- Accidents After December 31, 1993 and Before November 1, 1996 ("SABS"). It took the position that the hourly rate for attendant care to be applied was mandated by law and was not subject to discretion. The insurer submitted that although s. 47(1) of the SABS provides that the insured is entitled to "reasonable expenses incurred" for "services provided by an aide or an attendant", s. 47(9) stipulates that the benefits paid under the section "...shall be determined in accordance with Form 1 and s. 50(10)". The insurer brought a motion pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order dismissing the insured's claim for increased hourly rates for attendant care. The motion was dismissed. The motion judge found that the insured was entitled to pursue her claim for increased hourly rates. The insurer appealed.

Held, the appeal should be allowed.

To dispute that an insured person may dispute the hourly rates set out in s. 50(10) ignores the mandatory language of the section. In that subsection the legislation uses the mandatory term "shall" twice -- "the determination under clause (9)(b) shall be made in accordance with Form 1 and shall be based on the following hourly rates for service. . .". The reasonable meaning to be given to s. 50(12) (which states"Subject to the determination of a dispute relating to the amount to be paid by the insurer for the provision of services referred to in section 47 to the insured person in accordance with sections 279 to section 283 of the Insurance Act, a determination under clause (9)(b) is binding on the insured person and the insurer") is that an insured person is free to dispute the number of hours of care that the assessor has found she or he is entitled to, or the level into which the particular service has been allocated. Subsection 50(12) preserves the insured's right to argue for more hours of care or that the required care should be within a higher paying category, but an insured person cannot dispute the hourly rate for the services set out in s. 50(10) or the use of Form 1.

APPEAL from an order of Jenkins J. of the Superior Court of Justice, dated February 9, 2006, dismissing a motion for an order dismissing the plaintiff's claim for attendant care benefits.

Cases referred to Alverez v. Liberty Mutual Insurance Co., [2001] O.F.S.C.I.D. 112; Rizzo and Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. Â210-006, apld Other cases referred to Faerber-MacMillan and Allstate Insurance Company (27 November 2000), FSCO A99-000201 Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, ss. 279-283 Rules and regulations referred to O. Reg. 26/06 (insurance Act), ss. 21, 23 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (a) Statutory Accident Benefits Schedule -- Accidents After December 31, 1993 and Before November 1, 1996, O. Reg. 776/ 93, ss. 47(1), (7), (9) [as am.], 50(6), (8), (10), (12), 80(1), Form 1 Authorities referred to Driedger, Elmer, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Report of the Task Force on Rehabilitation and Long-Term Care Benefits to the Honourable Brian Charlton Minister Responsible for the Automobile Insurance Review (1993) Sullivan, Ruth, Sullivan and Dreidger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002)

Thomas J. McEwen, for appellant. Stephen R. Schenke, for respondent.

The judgment of the court was delivered by

[1] MACFARLAND J.A.: -- The issue raised by this appeal is the interpretation of those provisions of the Statutory Accident Benefits Schedule -- Accidents After December 31, 1993 and Before November 1, 1996, O. Reg. 776/93 (the "SABS") that relate to the hourly rates to be used for the calculation of attendant care benefits.

Overview

[2] The appellant appeals from the order of Jenkins J. made February 9, 2006. That order dismissed the appellant's motion brought pursuant to rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order dismissing the respondent's claim for attendant care benefits.

[3] The motion judge concluded that the respondent was entitled to pursue her claim for increased hourly rates for attendant care. The appellant argues that the motion judge's conclusion deprives it of the ability to argue at trial that the wording of the legislation precludes the respondent from disputing the hourly rates specifically set out in the legislation.

[4] For the reasons that follow, I would allow the appeal.

The Facts

[5] The respondent was seriously injured in a motor vehicle accident on January 28, 1994. She was 16 years old at the time. She suffered a severe brain injury, which entitled her to attendant care services pursuant to the SABS.

[6] The appellant now concedes that the respondent requires attendant care 24 hours per day, seven days per week and that she meets the definition set out in s. 47(7) of the SABS:

47(7) If as a result of the accident, the insured person suffers severe brain injuries that cause violent behaviour that may result in physical harm to insured person or other persons, the maximum amount payable under this section in respect of the insured person is $10,020 per month.

Issues

[7] The appellant currently pays the respondent attendant care benefits in the sum of $5,606.45 per month.

[8] The appellant argues that the hourly rate for attendant care to be applied is mandated by law and is not subject to discretion. It has paid, and continues to pay attendant care benefits to the respondent based on Part II or minimum wage hourly rates as set out in Form 1 and s. 50(10) of the SABS.

[9] The respondent's position is that she is entitled to be paid for necessary services at hourly rates higher than those prescribed in s. 50(10) up to the maximum permitted under the statute which she agrees is $10,020 per month. The respondent argues that the rates set out in s. 50(6) merely preserve the status quo pending the determination of a dispute in relation to those rates under s. 50(12).

Analysis

[10] In its factum the appellant states the issue as whether the motion judge erred "in finding that the respondent should be permitted to litigate the issue of a reasonable hourly rate for attendant care benefits when the hourly rate is governed by regulation".

[11] The respondent states the issue somewhat differently, as whether "the respondent can dispute the hourly rate at which attendant care benefits are paid".

[12] The appellant submits that although s. 47(1) of the SABS provides that the respondent is entitled to "reasonable expenses incurred" for "services provided by an aide or an attendant", s. 47(9) stipulates that the benefits paid under the section ". . . shall be determined in accordance with Form 1 and subsection 50(10)".

[13] Form 1 is a worksheet mandated by statute that is used to calculate attendant care benefits. There are three categories of care, levels 1, 2 and 3. Level 1 care is paid at the rate of $8.75 per hour, Level 2 at the current minimum hourly wage and Level 3 at $14.00 per hour. Section 80(1) provides for indexation of every monetary amount payable. The appellant submits therefore the hourly rates are clearly set out in s. 50(10) and there is no ambiguity in the language used in respect of those rates.

[14] In the alternative, the appellant argues that if this court finds there is ambiguity between ss. 47(1) and 47(9), then it should apply the rule of statutory interpretation that provides that the specific prevails over the general, as set out in Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002): "Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one."

[15] The respondent argues that the motions judge correctly interpreted the legislation when he concluded:

The fact of the matter is that an injured person such as the plaintiff who suffers severe brain damage and qualifies under s. 47(7) for the maximum monthly amount for an Attendant Care Benefits of $10,020 can never reach that maximum when the rates to be paid for Attendant Care Benefits are calculated in accordance with Form 1.

I am satisfied that $5000 a month is not adequate for the Attendant Care Benefits for the plaintiff. In fact, the cost of appropriate attendant care for the plaintiff probably exceeds $10,020 per month. As a result, I accept the plaintiff's argument that she is entitled to dispute the rates to be paid by the defendant insurer for Attendant Care Benefits in accordance with s. 50(12) of the legislation.

[16] Alternatively, if the legislation is capable of the interpretation the appellant advances, it is equally capable of the interpretation advanced by respondent, and in the circumstances we should adopt the interpretation most beneficial to the insured.

[17] The respondent argues that if she is confined to the hourly rates set out in s. 50(10) she can never reach the maximum for her category under [s.] 47(7) of $10,020 per month. Given that she requires attendant care 24 hours per day, seven days per week, the maximum benefit is illusory.

Analysis

[18] The relevant provisions [See Note 1 below] of the SABS provide:

47(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) services provided by an aide or attendant; or . . . . .

(7) If, as a result of the accident, the insured person suffers severe brain injuries that cause violent behaviour that may result in physical harm to the insured person or other persons, the maximum amount payable under this section in respect of the insured person is $10,000 per week. . . . . .

(9) The benefits payable to an insured person under this section shall be determined in accordance with Form 1 and subsection 50(10).

[19] Section 50 sets out the procedure whereby a person who claims benefits for attendant care undergoes an assessment at a designated assessment centre.

50(8) After conducting the assessment, the person or persons who conducted the assessment shall prepare a report in Form 1 and provide a copy of the report to,

(a) the insurer;

(b) the insured person; and

(c) the insured person's health practitioner.

(9) The report shall include,

(a) recommendations relating to the future provision of services referred to in section 47 to the insured person; and

(b) a determination of the amount to be paid by the insurer for the future provision of services referred to in section 47 to the insured person.

(10) The determination under clause (9)(b) shall be made in accordance with Form 1 and shall be based on the following hourly rates for services:

1. For care described in Part I of Form 1, $8.77 per hour.

2. For care described in Part II of Form 1, the minimum hourly wage established by paragraph 4 of subsection 10(1) of Regulation 325 of the Revised Regulations on Ontario, 1990.

3. For care described in Part III of Form 1, $14.03 per hour . . . . .

(12) Subject to the determination of a dispute relating to the amount to be paid by the insurer for the provision of services referred to in section 47 to the insured person in accordance with sections 279 to section 283 of the Insurance Act, a determination under clause (9)(b) is binding on the insured person and the insurer.

[20] Sections 279 through 283 [of the Insurance Act, R.S.O. 1990, c. I.8] set out the procedure whereby any disputes in relation to entitlement to or the amount of no-fault benefits to which an insured person is entitled are resolved.

[21] In my view, the interpretation placed on the legislation by the appellant must prevail.

[22] The cardinal rule of statutory interpretation is that set out by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87, and adopted by the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[23] To suggest that an insured person may dispute the hourly rates set out in s. 50(10) ignores the mandatory language of the section. In that subsection the legislation uses the mandatory term "shall" twice -- "the determination under clause (9)(b) shall be made in accordance with Form 1 and shall be based on the following hourly rates for service . . .".

[24] In my view, the reasonable meaning to be given to s. 50(12) is that which the insurer concedes, that an insured person is free to dispute the number of hours of care that the assessor has found she or he is entitled to, or the level into which the particular service has been allocated. In other words, s. 50(12) preserves the insured's right to argue for more hours of care or that the required care should be within a higher paying category. An insured cannot, however, dispute the hourly rate for the services set out in [s.] 50(10) nor the use of Form 1.

[25] This interpretation respects the language used in the regulation and accords with the recommendations made to the government in April 1993 by the Task Force on Rehabilitation and Long-Term Care Benefits. The Task Force was created to develop regulatory standards sensitive to concerns about both costs of and the need for appropriate rehabilitation services. Recommendation 54 made by the Task Force specifically recommended that the hourly rates, now embodied in s. 50(10) of the Regulation "should" be the ones used by Assessors [See Note 2 below] when considering claims for attendant care cost.

[26] A case very similar to this came before the Ontario Financial Services Commission: Alvarez v. Liberty Mutual Insurance Co., [2001] O.F.S.C.I.D. No. 112, affd at [2002] O.F.S.C.I.D. No. 54.

[27] In June 1995, Ms. Alvarez was struck by a motor vehicle and sustained a serious brain injury as well as other injuries as a result. Following an assessment in January 1999, her monthly attendant care benefit was assessed in the following amounts:

Level 1 care $ 536.94

Level 2 care 4,020.61

Level 3 care 970.63

TOTAL: $ 5,528.18

[28] In March 2001, Ms. Alvarez' treating psychologist recommended that she be provided with the round-the-clock presence of skilled supervisory attendant care professionals with training in the management of aggressive behaviours. Like the respondent, Ms. Alvarez was able to establish entitlement to attendant care benefits under s. 47(7) which provides for a maximum monthly available of $10,000 plus indexation. The need for skilled supervisory attendant care arose because of the "unpredictable nature of her aggressive outbursts and tendencies for self-injurious behaviours".

[29] After noting that s. 47(9) requires that benefits payable to an insured person shall be determined in accordance with Form 1 and s. 50(10), the arbitrator continued [at paras. 15-19]:

Most of Ms. Alvarez' care has been slotted into Level II attendant care. Level II care relates to basic supervisory functions and does not mention the highly skilled supervisory care which is required by Ms. Alvarez. However, there is a category in Level II for severe brain injuries which is defined as "client lacks ability to respond to an emergency or needs custodial care due to changes in behaviour."

Although Liberty Mutual submits that Level III care is restricted to complex health care and hygiene functions, Ms. Alvarez submits that skilled supervisory care should have been a separate heading under Level III attendant care in Part 3 of Form 1 and was omitted through oversight or error.

In Monachino and Liberty Mutual and AXA Home Insurance the Court of Appeal dealt with whether parents of a son who was severely injured in a motor vehicle accident in 1991 could obtain payment for attendant care provided by them to their son. This was a difficult decision but the court found that it must apply the statutory language in the Schedule which specified that the expenses must be incurred for a professional caregiver. The court ruled: "It appears to me that the language of the no-fault schedule is clear and unambiguous . . . To accept the appellant's interpretation would be to rewrite the statute as opposed to applying its clear language." This gap in the Schedule was remedied subsequently by amendments to the Insurance Act effective January 1, 1994.

I acknowledge that there is a gap in the legislation and it appears to be a serious oversight that Level III care in Form 1 includes only complex physical/health care needs with no category for psychological needs. However, as with the court in Monachino, I am charged with interpreting the legislation and not with amending it.

It would be preferable for the safety of Ms. Alvarez and others if the 24-hour skilled supervisory care recommended by Dr. Alyman could be provided and compensated at the rates for Level III care. However, that is not possible due to the manner in which the legislation is drafted. There is no room for flexibility when filling out the Form 1.

(Footnotes omitted)

[30] After concluding that Ms. Alvarez did not qualify for access funding under either Level I or Level III for the qualified skilled supervisory care she required, arbitrator Killoran considered the question raised here as to how one in Ms. Alvarez' position could ever obtain the $10,000 amount available under the legislation. This is the same illusory benefit argument raised by the respondent in this case. Arbitrator Killoran held [at para. 21]:

Ms. Alvarez queried whether it would be possible to have more than one attendant providing care and in that fashion "stack" benefits available under Level II. I find that Ms. Alvarez may require additional and separate care services due to the nature of her disability. It is possible to "stack" attendant care services under the legislation. For example in Ms. Alvarez' case, under Level II of Form 1, it is possible that two attendants may be compensated simultaneously for her care, due to the nature of her disability.

[31] In the same decision, the arbitrator was called upon to consider, as we are, whether the hourly rates set out in s. 50(10) are to be used as fixed rates for the calculation of benefits for attendant care on Form 1, or whether they represent minimum rates which the assessor may increase up to the relevant cap amount. The arbitrator determined, following the reasoning of another arbitrator in a different case, [See Note 3 below] that the hourly rates set out in [s.] 50(10) are fixed rates and there is no discretion for an assessor to increase or reduce those rates. He concluded at para. 29:

It is accurate that if one were to multiply the rates set out in subsection 50(10) by the number of hours in a week, in the case of 24-hour care, the amount payable by the insurer would not be the maximum available under subsection 47(5) or 47(7). However, if one were to multiply the rates by the number and kinds of specialized care that could be offered by more than one attendant, as contemplated in the "stacking" scenario, it would be possible to attain the maximum available.

[32] I find the reasoning of Arbitrator Killoran persuasive and it accords with the interpretation that, in my view, the legislation bears.

[33] In the result the appeal is allowed. The disposition of the motion judge is set aside and in its place an order will issue declaring that the plaintiff is prohibited from contesting the hourly rates payable for services under s. 50(10) of the SABS.

[34] Costs to the appellant fixed in the sum of $5,000 inclusive of disbursements and GST.

Appeal allowed.

Notes

Note 1: The SABS was amended effective March 1, 2006 by O. Reg. 26/06. Section 50 was revoked and replaced, and a corresponding amendment was made to s. 47(9). A transitional provision was also included in the amendments, however, which provides that s. 50 continues to apply as it read on February 28, 2006 in respect of a claim for payment of an expense under s. 47 if, as in this case, notice was given by either party before March 1, 2006 that the insured would be assessed under s. 50. I have therefore set out the provisions of the SABS as they apply to this case -- that is, as they were on February 28, 2006.

Note 2: See Report of the Task Force on Rehabilitation and Long-Term Care Benefits to the Honourable Brian Charlton Minister Responsible for the Automobile Insurance Review at p. 47.

Note 3: Faerber-MacMillan and Allstate Insurance Company (27 November 2000), FSCO A99-000201.