Neutral Citation: 2000 ONFSCDRS 82

FSCO A99-000772

BETWEEN:

JOHN PIERRE MOONS

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Leitch

Heard: By written submissions received from the Applicant on February 15, 2000 and from the Insurer on February 22, 2000

Appearances: Maia L. Bent for Mr. Moons Philippa G. Samworth for Co-operators General Insurance Company

Issue:

The Applicant, John Pierre Moons, was injured in a motor vehicle accident on March 6, 1999 and hospitalized until May 6, 1999. His mother, Mona Moons, stopped working during this period in order to visit her son on a daily basis. The issue is whether Ms. Moons is entitled to recover her lost wages under section 21 the Schedule¹. The parties were unable to resolve their dispute through mediation and an application for arbitration was made at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is the Applicant's mother, Mona Moons, entitled to recover her lost wages under section 21 the Schedule for the period from March 7 to May 5, 1999 when she stopped working in order to visit her son on a daily basis in the various hospitals where he received treatment for his accident-related injuries?

Result:

The Applicant's mother, Mona Moons, is entitled to recover her lost wages under section 21 the Schedule for the period from March 7 to May 5, 1999 when she stopped working in order to visit her son on a daily basis in the various hospitals where he received treatment for his accident-related injuries.

Introduction:

The parties submitted an Agreed Statement of Facts which confirms the following. John Pierre Moons was injured in a motor vehicle accident on March 6, 1999. He received treatment at a series of hospitals until May 6, 1999 when he was discharged to his parents' home. Following the accident, Mona Moons, John Pierre's mother, stopped working in order to spend most of every day with her son in the various hospitals. Since she was not entitled to sick leave, Ms. Moons received no pay during the period March 7 to May 5, 1999. She entered a claim for gross lost wages in the amount of $3, 966.43. This claim was advanced under section 21 of the Schedule dealing with the expenses of visitors, not under section 16 of the Schedule dealing with attendant care.

The Insurer acknowledges that Ms. Moons visited her son in the hospital and does not dispute that Ms. Moons' visits were reasonable and necessary. It denies, however, that a visitor is entitled to recover his/her lost income under section 21 of the Schedule. Section 21 of the Schedule reads as follows:

Expenses of Visitors

(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable and necessary expenses incurred by the following persons as a result of the accident in visiting the insured person during his or her treatment or recovery:

The spouse, children, grandchildren, parents, grandparents, brothers and sisters of the insured person.

An individual who was living with the insured person at the time of the accident.

An individual who has demonstrated a settled intention to treat the insured person as a child of the individual's family.

An individual whom the insured person has demonstrated a settled intention to treat as a child of the insured person's family.

(2) No payment is required under this section for expenses incurred more than 104 weeks after the accident.

(3) Subsection (2) does not apply if the insured person sustained a catastrophic impairment as a result of the accident.

Submissions:

In their written submissions, counsel referred to cases and dictionaries in which the words "expenses" and "incurred" are discussed and defined. The Insurer cites, in particular, the case of Monachino v. Liberty Mutual Fire Insurance Company² in which the visitor expenses section of an earlier Schedule³ was the subject of comment. That section reads as follows:

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.

While the trial judge acknowledged that no claim had been advanced under this section, he nevertheless offered the following opinion about its interpretation at paragraph 39: "... the expenditure must be one that is actually made or actually to be made. It is not one for which the claimant has a right to receive payment and an option to forego the expenditure." The Insurer argues that this opinion recognizes a distinction between expenses and losses, the latter being "something you do not receive which you would otherwise have been entitled to."⁴ Applying this distinction to the visitor expense section in the present case, the Insurer urges me to conclude that Ms. Moons' wage loss is not a recoverable visitor's expense.

The Insurer further submits that recognizing Ms. Moons' wage loss as a recoverable visitor's expense would lead to anomalies. It observes that the wage loss claims of persons actually injured in accidents has always been limited under the Schedules to percentages of pre-accident earnings calculated in accordance with detailed formulae. Likewise, the Insurer notes that while, under section 7(1)(a) of the earlier Schedule, an injured person could claim "the gross income reasonably lost" by a relative who provided care, such claims were subject to a limit of $3,000 per month and were treated separately from other "reasonable expenses" recoverable under section 7(1)(b). The Insurer states that the earlier Schedule thus distinguished between lost income and other expenses. The Insurer also contrasts the existence, under all the Schedules, of methods for, and limits on, the calculation of wage loss claims, with the absence of such methods and limits in the calculation of wage loss claims of visitors. Referring specifically to the Schedule applicable in this case, the Insurer argues: "......it would be inherently unfair that the insured person who sustains the injury can only recover a maximum of $400.00 per week (80% of net) while, if one accepts the Applicant's interpretation, a person simply visiting the injured person could recover 100% of his or her gross wage loss."⁵

The Applicant, on the other hand, cites the Black's Law Dictionary definition of the word "expense" which is as follows:

That which is expended, laid out or consumed. An outlay; charge; cost; price. The expenditure of money, time, labor, resources, and thought. That which is expended in order to secure benefit or bring about a result.

The Applicant also cites the case of Smith (Committee of) v. Wawanesa Mutual Insurance Company⁶ in which the words "expenses incurred within four years from the date of the accident" fell to be interpreted under the Ontario Standard Automobile Policy S.P.F. No. 1. After reviewing the case law interpreting the word "incurred," the Divisional Court concluded that "unfairness would result from a narrow interpretation [which...] penalizes the insured who lacks the money or the credit to pay or to become legally obliged to pay for the insured services" within the four-year time limit. Noting that the court avoided this unfairness by adopting "a purposive and remedial interpretation" of the legislation, the Applicant exhorts me to do likewise in order to avoid the unfairness inherent in the Insurer's interpretation, that unfairness being that "only those parents who could afford to be without their normal income would be able to visit their injured children in the hospital."⁷

Analysis and Conclusion:

I find that Ms. Moons' wage loss was the financial cost of her daily attendances at the various hospitals to visit her son. In my view, interpreting the words "expenses incurred" to cover this loss accords with the "modern approach to statutory interpretation" which, as described by Mr. Justice Laskin in Bapoo v. Co-operators General Insurance Company, "should comply with the legislative text, promote the legislative purpose and produce a reasonable and just meaning."⁸

I am not persuaded that the Insurer correctly interprets the trial judge's obiter and unelaborated comment in Monachino. At paragraph 49 of his decision, the trial judge also states: "the plain and ordinary meaning of the word 'expense' has to do with the expenditure of money or financial costs. "Further, after referring to both sections 6(2) and 7(1)(a) at paragraph 52 of his decision, the trial judge wrote: "It is clear that the No Fault provisions are intended to indemnify a person who has suffered a loss of income or has incurred an out-of-pocket expense."

I note that an appeal of the Monachino decision was dismissed by the Court of Appeal on March 22, 2000⁹ but, as mentioned earlier, the Monachino case did not involve a claim for a visitor's lost income under the Schedule applicable to this case. It involved a claim for care benefits under sections 7(1)(a) and (b) or supplemental medical and rehabilitation benefits under section 6 of the earlier Schedule where the person providing the care, again the mother of the accident victim, did not incur lost income. Section 7(1)(a) of that Schedule provided benefits for "the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person...in caring for the insured person." The appellant argued that to avoid unfair discrimination between income-earning and non-income-earning family caregivers, his benefit should be measured by the reasonable cost of a professional caregiver. On behalf of the majority, Mr. Justice Finlayson disposed of the appellant's arguments as follows at paragraphs 10 and 12:

[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 rewrite the statute as opposed to applying its clear language. The trial judge correctly interpreted this provision and his conclusion was sound.

[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 [counsel for the appellant] 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 of 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 in a proper case, but they do not fit within the language of the sections of the no-fault schedule we are dealing with.

I understand these paragraphs to mean that care giving services provided by members of a loving family cannot be regarded under the earlier Schedule as an expense, loss or cost where no wage loss was incurred. These paragraphs do not, in my view, preclude me from interpreting the words "expenses incurred" in section 21 of the Schedule applicable in this case to cover the wage losses of a visitor where one was incurred.

Nor do I divine legislative intent from the disappearance in subsequent Schedules of the distinction found in section 7(1)(a) and (b) of the earlier Schedule between wage losses and other expenses. As provided in section 18 of the Interpretation Act R.S.O. 1990 Chap.

The amendment of an Act shall be deemed not to be or to involve a declaration that the law under the Act was or was considered by the Legislature to have been different from the law as it has become under the Act as so amended.

Further, to the extent that the words "expenses incurred" admit of ambiguity, I find that such ambiguity must be resolved in favour of the Insured in accordance with the dicta of the Court of Appeal in the case of July v. Neal,¹⁰ cited by the Insurer:

Insurance policies are statutory contracts and the wording of the terms as in the instant case normally are not the words of the insurer but the words of the statute or of the regulation. To such terms the contra proferentem rule does not apply. However, the insurance industry is consulted and does have input with regard to legislation affecting the industry. The individual insured has none. His role is to pay the premium for the expected indemnity. It appears to me that if there is doubt in the legislation establishing and governing the cover, and there are two possible interpretations of any aspect of the cover, the one most favourable to the insured should govern.

Finally, while I perceive the potential anomaly identified by the Insurer, this anomaly does not, in my opinion, amount to an absurdity of the sort that would oblige me to ignore the plain meaning of the section, where I find one, or the Court of Appeal's admonition, where I do not. I note that while there is no arithmetic formula or limit stipulated for wage loss claims under section 21, the words "reasonable and necessary" do provide a verbal formula and limit. The Insurer in this case did not dispute that Ms. Moons' visits were reasonable and necessary.

EXPENSES

The parties are in agreement that the expenses of the arbitration are to be awarded to the Applicant.

May 3, 2000

David Leitch Arbitrator

Date