Ontario Insurance Commission
Neutral Citation: 1992 ONICDRG 40
File Nos. A-001436 and A-001437
Between:
Palma Fanuzzi Applicant
and
Zurich Indemnity Company of Canada Insurer
Decision
Issues:
The Applicant, Palma Fanuzzi, was injured in motor vehicle accidents on July 23, 1990 and March 18, 1991. She was insured under an automobile owner's standard policy issued by the Insurer. Every motor vehicle liability policy provides the no-fault benefits payable under Ontario Regulation 273/90, the No-Fault Benefits Schedule (the "Schedule"), and enacted under the Insurance Act, R.S.O. 1990, c. I.8.
The Applicant applied for and received weekly income benefits under the policy since the date of the first accident. At the time of the first accident, the Applicant lived with her elderly mother, Rosina Serafino. The Applicant had cared for her mother since shortly after she suffered a stroke in 1987 or 1988. On March 8, 1991, Rosina Serafino suffered a further stroke, as a result of which she was hospitalized. Since that time, Rosina Serafino has been cared for either in hospital or in a nursing home. She has not returned to live with her daughter.
The Insurer paid to the Applicant the sum of $100.00 per week from July 23, 1990 until the week ending March 23, 1991, pursuant to the provisions of section 13(4) of the Schedule. The Applicant disputed the termination of this benefit and applied for mediation of this issue. The mediation was unsuccessful in resolving the disagreement between the parties and the Applicant applied for arbitration.
The issue to be determined in this arbitration is:
Is the Applicant entitled to receive a benefit pursuant to section 13(4) of the Schedule for the period March 24, 1991 forward?
Result:
The Insurer will pay to the Applicant caregiver benefits under section 13(4) of the Schedule from March 24, 1991 and continuing, together with interest as provided under section 24.
The Applicant will have her costs of this arbitration.
Hearing:
A hearing was held on this issue at North York, Ontario, on September 9, 1992, before me, K. Julaine Palmer, arbitrator.
Present at the hearing were:
Applicant: Palma Fanuzzi
Applicant's Representative: Altor Shields, Barrister & Solicitor
Insurer: Represented by Wenda McEachern, Supervisor, Accident Benefits Unit
Insurer's Representative: James D. Tomlinson, Barrister & Solicitor
Palma Fanuzzi gave evidence under solemn affirmation at the hearing.
Exhibits:
The following documents were marked as exhibits to the hearing:
Exhibit 1: Statement of Agreed Facts, dated September 9, 1992
Exhibit 2: Copies of cheques payable to nursing homes
Exhibit 3: Report of Dr. John Zeldin, Orthopaedic Surgeon, dated November 6, 1991
Cases and Authorities considered:
Driedger, Elmer A. Construction of Statutes (Second Edition) Toronto: Butterworths, 1983.
Ireland v. Royal Insurance Canada et al, [1992] I.L.R. & 1-2837 Ontario Court (General Division)
Turgeon v. Dominion Bk., 1929 CanLII 47 (SCC), [1929] 4 D.L.R. 1028 (S.C.C.)
Evidence:
The Applicant is 68 years old and her mother, Rosina Serafino, is now aged 94. The Applicant testified that since her mother had a stroke in 1987 or 1988, she has lived with her to care for her. She did not bathe her mother, but she prepared her meals, fed her, dressed her and provided other personal care.
On March 8, 1991, Rosina Serafino suffered a second stroke and was hospitalized for a period of three months. Thereafter, she became a resident of first one, then subsequently a second nursing home. In April 1992, Mrs. Serafino spent a further ten days in hospital. At the present time, she is confined to a wheelchair and suffers paralysis in her left arm. However, she is regaining the use of her lower limbs. The Applicant described her mother as a very determined and mentally alert woman.
The Applicant, herself, has been the unfortunate victim of injuries in four motor vehicle collisions from July 1988 until March 1991. She described her injuries as being whiplash to her neck. She stated that she continues to have difficulties with her normal activities and is still under medical care. The Applicant remains in receipt of weekly income benefits pursuant to section 13(1) of the Schedule.
The Applicant testified that, even if she were herself physically well, she does not feel that she could cope with her mother at home any longer. She believes that her mother now requires 24-hour care which she could not provide at home.
The Applicant provides financially for her mother on an ongoing basis. She testified that her mother's monthly income is insufficient to pay the entire account of the nursing home and she, herself, supplements her mother's income to pay the entire monthly account. She estimated that she contributes between $200 to $300 per month to her mother's maintenance.
The Applicant testified that she continues to visit with her mother every day. She also goes regularly to her mother's house to ensure its security. The parties agree that the Applicant received $100.00 per week in caregiver benefits under section 13(4) of the Schedule from July 23, 1990 until March 23, 1991.
Submissions:
The Applicant's counsel submitted that this case involves the interpretation of section 13(4) and (6) of the Schedule. The Applicant's counsel submitted that, in order to receive caregiver benefits under section 13(4), three conditions precedent must be satisfied:
The person must be entitled to benefits under section 13(1) of the Schedule;
The person for whom the care is provided must be residing with the insured person;
The person who requires care must require it because of physical or mental incapacity.
The Applicant's solicitor submitted that the Applicant and her mother meet all three tests.
Section 13(6) sets out a complete code with respect to the termination of the benefits, the Applicant's counsel submitted.
Section 13(6) states as follows:
(6) A weekly benefit under subsection (4) ceases,
(a) when the person cared for attains age sixteen, unless he or she is incapacitated.
(b) when the incapacity of the person cared for ceases; or
(c) when the insured person ceases to be eligible for a benefit under subsection (1) or when the insured person would cease to be eligible had he or she not been disqualified under section 17.
The Applicant's counsel submitted that none of the termination conditions of section 13(6) is applicable because Rosina Serafino is indeed incapacitated; her incapacity has not ceased; and Palma Fanuzzi has not ceased to be qualified under section 13(1) of the Schedule.
If none of the termination features of section 13(6) apply, then the Insurer must continue to pay the caregiver benefits. The Schedule does not provide that the person who is cared for must continue to reside with the caregiver. The point in time which must be looked at is the date of the accident.
By analogy, the solicitor for the Applicant argued that, in a case where a mother with one or two young children was hospitalized for six months as a result of injuries received in an accident, an insurer would still be under an obligation to pay the care benefits, even though the mother was no longer residing in the house with the children. The wording is straightforward, he submitted, and there should be no subjective input with respect to the outcome of this application.
The Insurer's counsel submitted that the interpretation key is the one of "residency" with respect to section 13(4). He submitted that there was no doubt at the date of the accident that the Applicant and her mother were residing together and that Palma Fanuzzi was the primary caregiver. However, since March of 1991, two changes have taken place:
Rosina Serafino is no longer residing with the Applicant.
The Applicant ceased to be her mother's primary caregiver.
The Insurer's counsel submitted that section 13(6) does not purport to provide an exhaustive code of all circumstances when an insurer can cease paying benefits. He submitted a hypothetical example of a case where, two weeks after the motor vehicle accident, the Applicant ceased to be the primary caregiver of her mother and her sister began to be the primary caregiver. The Insurer's counsel submitted that surely in that case the applicant should not continue to receive the care benefit. He stated in his submission this is not spelled out in section 13(6) because it is purely a matter of common sense.
Similarly, after March 1991, Rosina Serafino no longer resided with the Applicant. On a common-sense interpretation, because of the changing circumstances, the Applicant should only continue to receive a caregiver benefit if the incapacitated person continues to "reside with" insured person. He submitted that it is not a one-time type test, but can evolve and change with the circumstances.
Findings:
Section 13(4) and (6) of the Schedule are clear in their language.
(4) The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), or who but for section 17 would be entitled to the weekly benefit, a benefit of $50 per week if Optional Benefit 3 has not been purchased, or $100 per week if it has been purchased, for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.
(6) A weekly benefit under subsection (4) ceases,
(a) when the person cared for attains age sixteen, unless he or she is incapacitated.
(b) when the incapacity of the person cared for ceases; or
(c) when the insured person ceases to be eligible for a benefit under subsection (1) or when the insured person would cease to be eligible had he or she not been disqualified under section 17.
Under the plain meaning rule of statutory interpretation, the Applicant should continue to receive a caregiver benefit of $100.00 per week in this case.
E.A. Driedger in his text, Construction of Statutes, (2nd ed., p. 48), quotes a passage written by Lord Wensleydale in the 1858 case Abbott v. Middleton:
the rule is to read it in the ordinary and grammatical sense of the words, unless some obvious absurdity, or some repugnance or inconsistency with the declared intentions of the writer, to be extracted from the whole instrument, should follow from so reading it. Then the sense may be modified, extended or abridged, so as to avoid those consequences, but no farther.
The Insurer submitted that, in this particular case, where the Applicant would in all likelihood no longer be caring for her mother, even had she received no injuries in the automobile accident in question, it makes little sense to continue to pay caregiver benefits. However, the plain language of the Schedule is clear. It is not my role as an arbitrator to re-write the language of the Schedule when its meaning is clear.
As Lord Reid stated in the Westminster Bank Ltd. v. Zang case quoted by Mr. Driedger at p.86 of his work, cited above,
But no principle of interpretation of statutes is more firmly settled than the rule that the court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous--if they are reasonably capable of more than one meaning--or if the provision in question is contradicted by or is incompatible with any other provision in the Act, then the court may depart from the natural meaning of the words in question. But beyond that we cannot go.
Mr. Driedger adds: "If the meaning is clear, the consequences of the application of the words to specific facts are immaterial."
The eventuality which took place in this case was, perhaps, not foreseen by the drafters of the present Schedule; however, as long as the incapacity of both the Applicant and her mother continue, caregiver benefits should also continue. To find thus does not give great offence to the intention of section 13 of the Schedule. As Senior Arbitrator Rotter stated in the case Michael Morin v. The Personal Insurance Company of Canada (O.I.C. File No. A-000468):
Weekly benefits under section 13 are normally payable to individuals who are not employed or regularly connected to the workforce. Thus, section 13 benefits are not designed or meant to compensate for loss of income they are rather meant to compensate for an individual's loss of function."
The incapacity of both the Applicant and Rosina Serafino continues. The Applicant continues to be a caregiver to Rosina Serafino, even though she and her mother are no longer able to reside together. Although the Applicant sincerely professes the belief that she would not be caring for her mother at home at this time, even if she herself were in better health, this question is clearly hypothetical given the Applicant's present medical condition.
Order:
The Insurer will pay to the Applicant caregiver benefits under section 13(4) of the Schedule from March 24, 1991 and continuing, together with interest as provided under section 24.
The Applicant will have her costs of this arbitration.
October 7, 1992
K. Julaine Palmer Arbitrator