Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 196

Appeal P06-00010

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ING INSURANCE COMPANY OF CANADA

Appellant

and

IGNAZIO BELLAVIA

Respondent

Before:

Nancy Makepeace

Representatives:

Deborah G. Neilson for ING

Jane Conte for Mr. Bellavia

Hearing Date:

September 12, 2006

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is dismissed and the arbitration order, dated February 21, 2006, is confirmed.

2. The matter is remitted to arbitration for determination of the parties' remaining disputes. For clarification, the arbitrator's findings of fact are not res judicata.

3. If the parties are unable to agree on appeal expenses, an expenses hearing may be requested in accordance with Rule 79 of the Dispute Resolution Practice Code.

December 15, 2006

Nancy Makepeace Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal is about a narrow issue: where a claimant resides in a chronic care or long-term care facility, does s. 16 of the SABS-1996¹ require the insurer to pay attendant care benefits for services provided by an aide or attendant as well as any co-payment fees charged by the facility? The arbitrator answered this question in the affirmative, and I agree. The attendant care benefit pays for all reasonable and necessary attendant care expenses incurred by or on behalf of the insured person as a result of the accident, whether provided by an aide or attendant or a long-term care facility, subject to the limits established in subsections 16(5), 18(2)-(3), and 19(2)-(3) of the SABS-1996.

The arbitrator made findings of fact that were not required to determine the question of law before her in the preliminary issue hearing. I am not persuaded it is necessary to vary her order to clarify its status as a ruling on a question of law. The matter will be remitted to arbitration for a hearing of the parties' remaining disputes about Mr. Bellavia's attendant care claim. The arbitrator's findings of fact are not binding in the entitlement hearing.

II. BACKGROUND

Mr. Bellavia was injured in an automobile accident on June 12, 2003 at the age of 74. His injuries included a fracture of C1 and C2, a brain stem injury and severe quadriparesis. The insurer concedes he is catastrophically impaired as defined in the SABS-1996. There seems little dispute that Mr. Bellavia requires constant care. He cannot speak or eat (he is fed through a gastric tube), he cannot transfer from bed to chair on his own (he is moved with a lift operated by two hospital staff members), he cannot wash, groom or dress himself, he has urinary and bowel incontinence, and he breathes through a tracheostomy, which requires frequent suctioning. In addition, his limited use of his right arm and hand is such that he cannot use the call button if it has shifted out of his reach.

After initial treatment at St. Michael's Hospital, Mr. Bellavia was transferred to a chronic care facility on August 13, 2003, and on September 17, 2003, he was transferred to Baycrest Centre for Geriatric Care ("Baycrest"), where he currently resides. Pursuant to s. 16(2)(b) of the SABS-1996, the insurer pays the approximately $1,500 monthly co-payment fee charged by Baycrest, and there is no dispute about that benefit.²

However, Mr. Bellavia's family members believe the care at Baycrest to be inadequate. They claim an additional attendant care benefit to supplement the care provided by Baycrest staff. The arbitrator heard evidence from Rosa Bellavia, Mr. Bellavia's wife, and from Peter Bellavia, the eldest of his three sons, about Mr. Bellavia's attendant care needs and the care provided by his family members. She accepted their testimony, which she summarized in her decision. According to their testimony, Mrs. Bellavia cares for her husband every day, with the assistance of one of her sons, who attend with her on a rotating basis. With the exception of a few tasks that can only be done by hospital staff, the family members look after all of Mr. Bellavia's care needs when Baycrest staff are unavailable, including feeding, washing and grooming, incontinence care, washing his day clothes, moving him in bed to prevent bedsores, suctioning his tracheostomy and "corking" it on a schedule to assist in weaning him off it.

On August 10, 2004, an attendant care DAC assessment was done at West Park Healthcare Centre. As noted by the arbitrator in the following passage, the DAC assessors supported Mr. Bellavia's claim for supplementary care by an aide or attendant:

The assessors concluded that:

Based on reported information, observations made and the documents provided for review, it is the professional opinion of these assessors, that, in addition to the supervision and emergency intervention available by the nurses/staff at Baycrest, Mr. Bellavia requires 24 hour supervision to ensure his well-being . . . . [footnote omitted]

The assessment of monthly attendant care needs for personal care was itemized on the Form 1 in the amount of $4,082.47, in addition to the nursing care and services provided by Baycrest.³

Mr. Bellavia's application for arbitration claimed $67,463.97 for the cost of care by his wife and sons between June 13, 2004 and December 31, 2004, plus ongoing benefits. According to the insurer's amended response to the application for arbitration, the insurer had paid, to June 29, 2005, $11,929.05 for Mr. Bellavia's facility fees, plus $15,429.53 for the cost of an aide or attendant. The insurer sought repayment of one of these amounts on the basis that s. 16(2) did not require it to pay benefits under clause (a) and clause (b) for the same period of time.

The arbitrator made the following order:

The insurer is required to pay to Mr. Bellavia attendant care expenses incurred concurrently under both subsections 16(1)(a) and 16(2)(b) of the Schedule [the SABS-1996].

III. ANALYSIS

A. The Appeal Record

At the outset of the appeal hearing, the insurer's counsel moved that the document found at Tab 32 of the Respondent's Brief of Authorities – a letter, dated June 23, 2005, from an official of the Ministry of Health and Long Term Care – should be excluded from the record in accordance with the Commission's approach to fresh evidence on appeal. Ms. Neilson submitted that the letter was not produced 30 days before the appeal hearing, as required by Rule 39 of the Dispute Resolution Practice Code, and was not the subject of a fresh evidence motion or an application for variation of the arbitration decision.

Ms. Conte submitted that Mr. Bellavia's brief was served on the insurer just before the 30-day mark. She stated that the letter was written to plaintiff's counsel in an unrelated case, and was distributed at a legal conference in early 2006. She submitted it was a public document by a government official dealing with the scope of coverage under the Ontario Health Insurance Plan, and therefore was not subject to the fresh evidence or pre-hearing disclosure rules, and that it was potentially decisive on the very issue in dispute.

I ruled that the letter was not admissible. Amongst other concerns, I do not accept that it became part of the public record or gained official status by virtue of its distribution by the recipient. I removed the letter from the brief, and returned it to Ms. Conte.

B. Interpretation of s. 16(2) of the SABS-1996

The insurer submits that the SABS gives claimants the option of claiming benefits for institutional care or for home care provided by an aide or attendant, but does not provide for payment of institutional care supplemented by care by an aide or attendant. I agree with the arbitrator that s. 16(2) is inclusive and does not require the claimant to elect between mutually exclusive options.

Subsection 16(2) of the SABS-1996 is as follows:

16(2) The attendant care benefit shall pay for all reasonable and necessary 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

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.⁴

At the arbitration, the insurer submitted that while "and" is conjunctive, "or" is disjunctive, though the courts sometimes read "and" as disjunctive and "or" as conjunctive if this is necessary to carry out legislative intent or avoid absurdity. In this case, the insurer submitted that the disjunctive intent of s. 16(2) is evidenced by the fact the "or" in s. 16(2) follows the semi-colon that ends clause (a). Turning to legislative context, the insurer contrasted s. 16(2) with s. 14(2) (medical benefits) and s. 15(5) (rehabilitation benefits), which set out inclusive lists of benefits without using the word "or." The insurer submitted that giving s. 16(2) a disjunctive reading does not create absurdity, and indeed accords with legislative intent that attendant care benefits provide claimants with a choice of home care or institutional care. The insurer submitted that the legislature did not contemplate provision of care by an aide or attendant to supplement the care provided by a long-term care facility. Instead, the Bill 59 and Bill 198 amendments have redrawn the balance between tort rights and accident benefits by expanding tort rights and reducing accident benefits.

The arbitrator rejected the insurer's position. In Boolean terms, she concluded that "or" may be exclusive – (A or B) and not (A and B), or inclusive – (A or B) or (A and B). Similarly, she noted that "and" may be joint – (A and B) and not (A or B), or joint and several – (A and B) or (A or B). The arbitrator was not persuaded that the court decisions relied on by the insurer supported its position that "or" is given an exclusive reading unless it is necessary to read it conjunctively to fulfill clear legislative intent and avoid absurdity. Instead, she relied on authority for the view that "or" is usually given an inclusive interpretation, though this depends on statutory context and purpose. Considering the purpose, history and context of s. 16(2), the arbitrator concluded that the "or" following clause (a) is to be read inclusively:

That is the only interpretation which can be justified in terms of plausibility, promotion of the legislative purpose and acceptability; that is, the outcome is reasonable and just.⁵

On appeal, the insurer essentially re-states the arguments it presented before the arbitrator.

I am not persuaded the arbitrator erred. I conclude that purpose, history and context support an inclusive reading of s. 16(2).

As noted by the arbitrator, "the courts have often declared that 'and' is conjunctive and 'or' is disjunctive but to avoid absurdity they must sometimes read 'and' as if it said 'or', or vice versa."⁶Professor Sullivan argues that this reasoning is problematic. She considers, for example, International Woodworkers of America, Local 2-306 v. Miramichi Forest Products Ltd.,, (1972) 1971 CanLII 1066 (NB CA), 21 D.L.R. (3d) 239 (N.B.C.A.), which concerned s. 10(2) of the New Brunswick Labour Relations Act. That provision stated: "The Board . . . may make . . . such . . . inquiries as it deems necessary, including the holding of such hearing or the taking of such votes as it deems expedient . . . ." In that case:

The union argued that since "or" is disjunctive the Board could hold a hearing or take a vote, but it could not do both. The court ruled that "the word [or] will not be so construed where it would result in an absurdity or which the clear intent of the section in which it is found would be defeated. . . ."⁷

At the arbitration hearing, the insurer relied on IWA to argue that the "or" in s. 16(2) should be given an exclusive reading unless this would create an absurdity or ambiguity. The arbitrator agreed with Professor Sullivan's analysis:

Ruth Sullivan has pointed out that while the outcome in IWA Local 2 -306 is correct, the reasoning is problematic. It is based on a dated and imperfect understanding of "and" and "or." She refers to Reed Dickerson, a writer on legal drafting, who explains that in ordinary usage both words have two distinct senses and therefore each is a frequent source of ambiguity. In Reed Dickerson's words: "... It is not always clear whether the writer intends the inclusive "or" (A or B or both) or the exclusive "or"(A or B, but not both).⁸

According to Sullivan, using "or" in an inclusive sense, as with using "and" in a joint and several sense, is grammatically correct and accords with both popular and legal usage. In her opinion, to describe this usage by saying that "or" means "and" or that "and" means "or" is inaccurate and misleading. In IWA Local Z-306, the court is not asked to abandon the ordinary meaning of "or." Rather, one party claims "or" is exclusive while the other claims that it is inclusive. In choosing the latter meaning for "or", the court does not read "or" as "and", it reads "or" inclusively.

Dickerson also points out that in legislation "or" tends to be used inclusively and " and" tends to be used jointly and severally. . . .⁹

On appeal, the insurer criticizes reliance on Reed Dickerson, "an American writer," and relies on the following statement from Sullivan and Driedger:

The presumption favouring the inclusive "or" and the joint and several "and" is readily rebutted by linguistic considerations or by knowledge of the world.¹⁰

For example, the "or" in "he or she" is obviously exclusive. One of Professor Sullivan's examples is relevant to this dispute, and the arbitrator discussed it in her reasons:

Sullivan presents the following example for the reader to consider:

1. The Minister may

(a) make regulations prescribing the conditions for logging or mining in national parks; or

(b) issue licences for fishing in national parks on whatever terms the Minister thinks fit.

2. The Minister may

(a) make regulations prescribing the conditions for logging and mining in national parks; and

(b) issue licences for fishing in national parks on whatever terms the Minister thinks fit.

In the first example, the "or" is presumed to be inclusive while "and" in the second example is presumed to be joint and several. In both provisions, the Minister is authorized to make regulations, issue licences or both and to regulate logging alone, mining alone, or both. In these provisions, it does not matter whether the drafter used "and" or "or," because in this context they have the same effect.¹¹

The arbitrator agreed with Professor Sullivan that "or" tends to be used inclusively in legislation. In any event, she was led to an inclusive reading of s. 16(2) by statutory context and legislative purpose.

Like the arbitrator, I am not persuaded that Dickerson's analysis is restricted to the American context. Indeed, the decisions relied on by the insurer support her analysis.

In Natrel Inc. v. Milk and Bread Drivers, [2001] O.J. No. 1283 (Ont. Div. Ct.), the court considered subsection 49(2) of the Labour Relations Act which stated that no request for an arbitrator may be made "beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration." The insurer relied on the following statement by the court, at p. 2, para. 5:

We are all of the view that on established principles of statutory interpretation, the use by the legislature of the disjunctive "or" in the provision " stipulated in or permitted under", displays an intent that the phrases "stipulated in" and "permitted under" have different meanings, each of which must be given efficacy.

The arbitrator read the decision differently:

I do not find that the Natrel case assists Allianz [now ING]. The court found, in that case, that the parties' long-standing and consistent practice had been to permit referrals to arbitration after the time limit had passed, contrary to the seven-day limitation found in the collective agreement. In my view, the court adopted an inclusive interpretation when it interpreted the word "or" as meaning both phrases could be given effect. That is precisely the interpretation that Mr. Bellavia is requesting in the case before me.

I agree. There was no suggestion in Natrel that the disputed "or" should be given an exclusive reading, as argued by the insurer in this case. The issue was whether the extended time limit must be "stipulated in" and "permitted under" the collective agreement, but Mr. Bellavia does not argue that s. 16(2) requires that a claim be made under both clause (a) and clause (b).

Similarly, in Re Robinson and Lumsden, 1986 CanLII 2864 (ON HCJ), [1986] O.J. No. 1076, 57 O.R. (2d) 47, 32 D.L.R. (4^th) 154 (Ont. Div. Ct.), pp. 4-5, the issue was a provision in the 1980 Residential Tenancies Act that exempted from rent controls a residential complex "owned, operated or administered by or on behalf of" any government or government agency. The appellant was a private landlord who leased a house owned by the city and in turn subleased it to a tenant. The Residential Tenancies Commission held that the disputed "or" must be given a "conjunctive" reading in keeping with the legislative objective. This was reversed by the Divisional Court, which held that the statutory language "clearly exempts" complexes "owned by a municipality regardless of who may be the landlord." As I read the decision, what the court rejected was an interpretation that would give "or" the same meaning as joint "and" – (A and B) and not (A or B). Again, Mr. Bellavia does not argue that s. 16(2) requires that a claim be made under both clause (a) and clause (b).

The insurer also relies on the recent decision of the Court of Appeal in Sepe v. Monteleone, 2006 CanLII 1173, pp. 2-3, which concerned the monetary limits of the Divisional Court's appellate jurisdiction. At issue was s. 19(1)(a) of the Courts of Justice Act, which is as follows:

19(1) An appeal lies to the Divisional Court from,

(a) a final order of a judge of the Superior Court of Justice,

(i) for a single payment of not more than $25,000, exclusive of costs,

(ii) for periodic payments that amount to not more than $25,000, exclusive of costs, in the twelve months commencing on the date the first payment is due under the order,

(iii) dismissing a claim for an amount that is not more than the amount set out in subclause (i) or (ii), or

(iv) dismissing a claim for an amount that is more than the amount set out in subclause (i) or (ii) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in subclause (i) or (ii);

The trial judge had dismissed the plaintiff's claim for damages of $22,000 and allowed the defendants' counterclaim for some $19,000. The plaintiff appealed both awards to the Divisional Court, but that court held that the appeal exceeded its jurisdiction because the combined value of the claim and counterclaim exceeded $25,000. This was reversed on appeal. The Court of Appeal found that "the ordinary disjunctive meaning" of "or" applied straightforwardly to the facts. The insurer relies on the following statement:

10In other words, the proper approach to the interpretation of s. 19(1)(a) is not to try to reconcile what may sometimes appear to be anomalous results, but to apply the wording of the section and to follow the result of that application by appealing to the designated court in each case.

As I read the decision, it turned on legislative purpose, which, in that case, accorded with a " disjunctive" reading of " or" :

6. . . . In our view, the purpose of s. 19(1)(a) is to define an easily applied cut-off line for litigants to determine the proper appeal route in any particular case. The line that was drawn by the legislature is the monetary amount of a judgment or dismissed claim of $25,000. The amount chosen does not reflect any concern for the ability of the Divisional Court to properly decide appeals that may involve more than $25,000. It is merely a mechanism for directing appeals involving less than the defined amount to one court, and the balance to the other.

The effect of Sepe is that satisfying at least one of paragraphs (i) through (iv) removes a matter from Divisional Court jurisdiction. An exclusive "or" – (A or B) and not (A and B) – would mean that jurisdiction is not lost if more than one paragraph applies, but that is not what the court said. This was really a dispute about whether clause 19(1)(a) implicitly removed a matter from Divisional Court jurisdiction if none of paragraphs (i) through (iv) applied but the combined value of the dispute exceeded $25,000. Absent express language, it is difficult to imagine the court removing such appeals from the Divisional Court.

I agree with the arbitrator that "or" may be inclusive or exclusive, depending on statutory context and purpose.

Turning to the context and purpose of attendant care benefits, the insurer argues that what s. 16(2) offers is an election, signaled by the use of the word "or" following the semi-colon that ends clause (a). For example, s. 16(5) uses a similar structure to describe "either-or" rules:

The amount of the attendant care benefit payable in respect of an insured person shall not exceed,

(a) $3,000 per month, in the case of an insured person who did not sustain a catastrophic impairment as a result of the accident; or

(b) $6,000 per month, in the case of an insured person who sustained a catastrophic impairment as a result of the accident.¹²

In my view, clauses (a) and (b) of subsection 16(5) are mutually exclusive because an insured person either "sustained a catastrophic impairment" or "did not sustain a catastrophic impairment"; it is not logically possible for a claimant to satisfy both clauses. The meaning of s. 16(5) does not depend on the legislature's use of "or" instead of "and" or a simple list.

In contrast, where the SABS-1996 requires a claimant to " elect" or "designate" amongst mutually exclusive options, it does so in clear and unambiguous language. For example, a claimant qualifies for a non-earner benefit under s. 12 of the SABS-1996 if he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident "and does not qualify for an income replacement benefit."¹³ And where a claimant qualifies for more than one type of weekly benefit – an income replacement benefit, a non-earner benefit or a caregiver benefit – s. 36(2) allows him to "elect . . . which benefit he . . . wishes to receive," and s. 36(1) states: "[o]nly one of the . . . benefits may be paid to a person in respect of a period of time," Though this language is clearly exclusive, the three weekly benefits are set out as a simple list, like the inclusive list of medical and rehabilitation benefits in subsections 14(2) and 15(5), without use of the word "or":

Only one of the following benefits may be paid to a person in respect of a period of time:

1. An income replacement benefit.

2. A non-earner benefit.

3. A caregiver benefit.

For this reason, I reject the insurer's argument that s. 16(2) must require an election because clauses (a) and (b) are separated by "or" rather than being presented as a list, as in s. 14(2) and 15(2).

Another election is required under subsections 8(1)-(2), which state that an income replacement benefit claimant "shall designate one of the following time periods" for calculating gross pre-accident income: four weeks or 52 weeks before the accident (if employed), 52 weeks or the last complete fiscal year (if self-employed). Again, as in s. 36(1), the options are listed without use of the word "or," suggesting this would not be necessary or sufficient to describe the exclusive nature of the election.

And where a claimant is entitled to receive workers compensation benefits, his automobile insurer "is not required to pay" accident benefits unless he "elects to bring an action" that is allowed under workers compensation legislation,¹⁴ and "no [weekly] benefit is payable in respect of any period of time before the person makes the election."¹⁵ If there is a dispute about whether there is a right of action, accident benefits are payable only if the person assigns to the insurer any workers compensation benefits he eventually receives. One effect of these provisions is to prevent a person from receiving both accident benefits and workers compensation benefits for the same period of time. Again, the legislature did not rely on the word "or," but described the consequences of a workers compensation election in clear and explicit language.

Finally, if an Ontario resident is injured in an accident in another province or territory of Canada or in the U.S.A., s. 57(1) requires the insurer to pay, "as the person may elect":

(a) benefits provided by this Regulation, other than the benefits referred to in clause (b); or

(b) benefits in the same amounts and subject to the same conditions as if the person were a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction.

Though this provision is structurally similar to s. 16(2) and s. 16(5), the legislature must not have thought the use of "or" following a semi-colon sufficient to force an election, because s. 57(2) and (3) say so explicitly:

(2) A person who elects to claim a benefit as provided in clause (1)(a) is thereafter eligible only for benefits referred to in that clause.

(3) A person who elects to claim a benefit as provided in clause (1)(b) is thereafter ineligible for benefits referred to in clause (1)(a).

In contrast to these clear and unambiguous provisions requiring an exclusive ("either-or" ) election, nothing in section 16, which describes the benefits available, or s. 39, which describes the claims process, refers to an election or designation between the attendant care services described in clauses (a) and (b) of subsection 16(2). I conclude that if the legislature had intended s. 16(2) to require an election, it would have said so in clear and unambiguous terms. For example, the legislature could easily have added to s. 16(2) a clause (c) stating: " [o]nly one of the benefits described in clause (a) or (b) may be paid to a person in respect of a period of time." In the absence of such a provision, I am not persuaded the word "or" can carry the weight the insurer would like it to bear.

This conclusion is reinforced by considering the evolution of attendant care benefits in the SABS. Section 7 of the SABS-1990 provided care benefits to pay for the reasonable cost of a professional caregiver or the income reasonably lost by a friend or family member, as well as all reasonable care expenses, subject to a limit of $3,000 per month and a lifetime limit of $500,000. In Monachino v. Liberty Mutual Fire Insurance Co., 1997 CanLII 26915 (ON CTPD), [1997] O.J. No. 3571 (ON S.C.), affirmed on this point, 2000 CanLII 5686 (ON CA), [2000] O.J. No. 865, 47 O.R. (3d) 481 (ON C.A.), it was held that the SABS-1990 did not pay for the services provided by a friend or family member who did not lose income.¹⁶I am aware of no decision on the issue under appeal – whether benefits are payable for an aide or attendant (whether professional or not) in addition to institutional care.

The SABS-1994 expressly provided for attendant care services provided by a friend or family member, even if the person does not possess any special qualifications: s. 47(2). The monthly limit was raised to $6,000 (s. 47(5)) and $10,000 (s. 47(6) and (7)) for the most seriously injured claimants, while others continued to be eligible for up to $3,000 per month (s. 47(4)). There was no lifetime limit.

The insurer submits that the legislature increased the level of attendant care benefits in the SABS-1994 to ensure that the most seriously injured claimants could be cared for at home, since otherwise the limits under the SABS-1990 might force them to be institutionalized. The Hansard excerpts relied on by the insurer suggest that while ensuring a realistic home care option was one of the legislature's objectives in increasing the benefit caps, it was not the only one. The general objective was to ensure adequate care based on an assessment of the claimant's care needs, while controlling costs by, amongst other things, introducing new assessment tools and procedures for determining the amount of benefit payable, and eliminating the right to sue for pecuniary loss. Nothing in Hansard suggests the legislature intended to restrict the higher limits ($6,000 and $10,000 per month) to people being cared for by an aide or attendant at home. In any event, the insurer's position in this appeal would prevent an institutionalized claimant from receiving benefits for care by an aide or attendant whether or not the total attendant care benefits exceeded the $3,000 monthly cap. There is no legislative history evidence for this interpretation.

The insurer submits that while the SABS-1994 marked the highwater mark for attendant care benefits, the legislative objective underlying the SABS-1996 is to reduce accident benefits in order to control premiums and ensure that consumers can afford mandatory automobile insurance, while restoring the right to sue for pecuniary damages. In response to this argument, the arbitrator stated:

Even if I were to accept that premise, the flaw in this argument is that the use of the word 'or' when referring to attendant care benefits provided by an aide or an attendant or a chronic care facility was part of the much earlier drafting of the Schedules. It does not reflect the legislative changes enacted by Bill 59.¹⁷

I agree with the arbitrator. Like s. 16(2) of the SABS-1996, s. 47(1) of the SABS-1994 provided attendant care benefits for:

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

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.

Furthermore, where the SABS-1996 restricts attendant care benefits, it does so in clear and unambiguous terms. A monthly maximum benefit is set out in s. 16(5), referred to above. Subsection 19(2) imposes an overall maximum on the attendant care benefit payable to catastrophically impaired claimants ($1,000,000) and non-catastrophic claimants ($72,000). While there is no time limit on payment of attendant care benefits for catastrophically impaired claimants, no benefit is payable to non-catastrophic claimants for attendant care expenses incurred more than 104 weeks after the accident: subsections 18(2)-(3). In recognition of the benefit cuts, s. 70(3) of the SABS-1996 provided some transitional relief for the duration of existing policies. All these rules are explicitly stated in the SABS-1996. Finally, though counsel differ as to whether the Form 1 applies to institutional care as well as care provided by an aide or attendant, I draw no conclusions, noting only that neither the form nor the Attendant Care DAC Assessment Guideline addresses the issue.¹⁸ Recent amendments to the SABS-1996 have added new restrictions where the accident occurred on or after April 14, 2004.¹⁹

I accept that the evolution of the attendant care provisions reflects the legislature's concern about the cost of attendant care. Despite this, the legislature has not seen fit to alter the open-ended entitlement language of s. 16(2), which is substantially identical to s. 47(1) of the SABS-1994.

I conclude that if the legislature had intended s. 16(2) to offer an "either-or" election between institutional care and home care provided by an aide or attendant, it would have used clear and unambiguous language, as it has done in s. 16(5), 18(2)-(3), and 19(2)-(3) and elsewhere in the SABS where benefits are limited or subject to an election. I conclude that nothing in s. 16(2) prevents Mr. Bellavia from claiming attendant care benefits to which he would otherwise be entitled under clause (a) and under clause (b).²⁰

B. The Arbitrator's Findings of Fact

The arbitrator made the following order:

The insurer is required to pay to Mr. Bellavia attendant care expenses incurred concurrently under both subsections 16(2)(a) and 16(2)(b) of the Schedule.

The insurer submits that the arbitrator exceeded her jurisdiction and denied it a fair hearing by going beyond the question of law at issue in this appeal. The insurer asks me to set aside the arbitrator's order or order that her findings of fact are not res judicata.

Reading the arbitrator's order in the context of her reasons as a whole, I think the arbitrator intended to determine only the question of law – whether attendant care benefits can be claimed concurrently under clauses (a) and (b) of s. 16(2). However, the arbitrator's reasons for decision include several findings of fact:

• "Mr. Peter Bellavia and his mother testified about Mr. Bellavia's circumstances with very minor discrepancies in their testimony. They were excellent witnesses who were candid and forthright. I accept their testimony, which was unchallenged. The level of care and compassion which they, and other members of their family, extend to Mr. Bellavia is commendable."²¹

• "I find that the Bellavia family has been performing those very tasks relating to personal care that the attendant care DAC assessment report concluded that Mr. Bellavia required, in addition to the services performed by Baycrest. Subsection 39(10) of the Schedule specifies that the attendant care DAC determination is binding on the insurer and the insured subject to sections 279 to 283 of the Insurance Act. The tasks performed by the Bellavia family for the benefit of Mr. Bellavia constitute reasonable and necessary attendant care services. I cannot fault the Bellavia family for choosing to perform some of the services, which are also offered by Baycrest, in order to guarantee prompt, high quality care for Mr. Bellavia."²²

• "The tasks performed by the Bellavia family for the benefit of Mr. Bellavia constitute reasonable and necessary attendant care services."²³

• "I find that Mr. Bellavia has incurred expenses for services performed by attendants under subsection 16(2)(a) and services provided by a chronic care facility under subsection 16(2)(b)."²⁴

The insurer submits that it was given no notice that the arbitrator would make any factual findings or reach a conclusion on whether Mr. Bellavia was entitled to the benefits claimed, and therefore it did not present evidence and submissions as to whether the expenses claimed were "incurred" or were "reasonable and necessary."

I agree the only issue properly before the arbitrator was the question of law. The insurer raised the issue in its amended Response by Insurer to an Application for Arbitration, and asked that it be dealt with as a preliminary issue. The insurer also disputed whether expenses had been "incurred" and whether they were reasonable and necessary, considering the care provided by Baycrest, and identified a number of expert reports it intended to rely on and others it sought from the claimant.

In her letter of October 10, 2005, the pre-hearing arbitrator distinguished the preliminary issue from the "merits" or "entitlement" issue – whether Mr. Bellavia is entitled to attendant care benefits from June 13, 2003 and ongoing, in varying amounts. The preliminary issue hearing was scheduled for December 2005, and the pre-hearing letter notes that "a further series of dates (likely four more days) will have to be set to hear the merits." Unfortunately, the Notice of Hearing, issued on September 15, 2005, the day after the pre-hearing, did not indicate the hearing was on a preliminary issue only.

The arbitrator questioned the scope of the hearing immediately after affirming the interpreter:

My understanding is we are here to deal with a preliminary issue and that the insurer, . . . has moved for an Order as to whether an insurer is required under the applicable Schedule to concurrently pay an insured person under sub-section 16(2)(a) of the Schedule, that is expenses for the services of an aide or attendant, and subsection (2)(b), expenses for the service of long term care facility.²⁵

She asked Ms. Neilson and Joseph Rizzotto, who was Mr. Bellavia's lawyer at that time, if she had described the issue correctly, and both agreed.

The arbitrator then turned to the record, marking two exhibits. Exhibit 1 was the affidavit of Heidi Jones, Casualty Claims Unit Manager with ING, with three appendices: Ms. Rucas' Form 1, dated April 14, 2004; the Attendant Care DAC report and Form 1, dated August 10, 2004; and the Report of Mediator, dated March 17, 2005. Ms. Neilson noted that Ms. Jones' affidavit replaced that of Nora der Bedrossian, which was withdrawn. Exhibit 2 was entitled "Applicant/Responding Party Submissions" with legal authorities appended. The arbitrator also indicated at that point that she had received the insurer's written submissions. With respect to order of proceedings, it was agreed the insurer would go first because it was the moving party. Ms. Jones was to be cross-examined and re-examined on her affidavit, then Mr. Bellavia's wife and son would testify about their care for him.

The arbitration transcript shows that the arbitrator understood the need to clarify the scope of the issue before her. She raised the issue at several points during the hearing. Mr. Rizzotto stated that he was presenting evidence because the issue "ought not to be decided in a vacuum or in isolation from the reality and the facts."²⁶ The arbitrator re-stated the issue:

while I am sensitive to your argument that this legal question cannot be approached in isolation, . . . . it is primarily an interpretive question that I have been asked to deal with, so that my understanding is that my ruling will not touch on quantifying amounts that could potentially be owed or owing for attendant care.²⁷

At the appeal hearing, Ms. Conte, who now represents Mr. Bellavia, submitted that the "incurred" and "reasonable and necessary" issues are implicit in the interpretive issue put to the arbitrator on December 5, 2005. I reject this. My reading of the transcript suggests that Mr. Rizzotto led the oral evidence of Mr. Bellavia's wife and son because the parties had been unable to reach an agreed statement of facts, and he likely hoped that evidence about Mr. Bellavia's care needs would provide a sympathetic backdrop for his legal submissions.

The insurer's counsel did not object. As I read the transcript, the arbitrator and both counsel understood that an entitlement hearing would be held if Mr. Bellavia succeeded on the preliminary interpretive issue. The parties' written submissions dealt only with the question of law in dispute in the appeal.

If the arbitrator, who did not have the transcript when she wrote her decision, understood the issues before her to include what care was provided and whether it was reasonable and necessary as a result of the accident, this was an error, though one that is easy to understand given the way the hearing played out. I do not think that is what happened. Reading the decision as a whole, I think the order was framed as a ruling on a question of law. Alternatively, the arbitrator's reference to s. 39 of the SABS-1996 suggests she may have wanted to reaffirm the insurer's obligation to pay benefits in accordance with the attendant care DAC, which supported Mr. Bellavia's claim, subject to determination of the dispute.²⁸

I am not satisfied it is necessary to vary the order to clarify its status as a ruling on a question of law. The matter will be remitted to arbitration for determination of the parties' remaining disputes about Mr. Bellavia's entitlement to attendant care benefits. For clarity, the arbitrator's findings of fact are not binding in the entitlement hearing.

IV. EXPENSES

If the parties are unable to agree on appeal expenses, an expenses hearing may be requested in accordance with Rule 79 of the Dispute Resolution Practice Code.

December 15, 2006

Nancy Makepeace Director's Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The rules governing payment of chronic care and long-term care co-payments are discussed in Da Rosa and Allstate Insurance Company of Canada, Minister of Health and Long-Term Care (Intervenor), (FSCO P04-00033, May 25, 2006).
3. 3Arbitration decision, p. 3.
4. 4Emphasis added to "or" here and throughout this decision. Subsequent amendments to s. 16 in Ontario Regulations 281/03 and 458/03 have not affected the wording of s. 16(2).
5. 5Arbitration decision, p. 11.
6. 6Arbitration decision, p. 7, paraphrasing Sullivan and Driedger on the Construction of Statutes, 4^th ed., (Markham: Buttersworth Canada Ltd., 2002), p. 66.
7. 7Arbitration decision, p. 8.
8. 8Materials on Legal Drafting (St. Paul, Minnesota: West Publishing Co., 1981) at pp. 250 -251 [footnote in original].
9. 9Arbitration decision, pp. 9-10, paraphrasing Sullivan and Driedger, p. 67.
10. 10Sullivan and Driedger, p. 68.
11. 11Arbitration decision, p. 10.
12. 12As it read at the time of Mr. Bellavia's accident on June 12, 2003. Ontario Regulation 281/03 introduced new rules for accidents on or after October 1, 2003, but the changes do not affect my analysis as paragraph 1 of the amended s. 16(5) is substantially similar to the version that applies to this case.
13. 13Paragraph 1 of subsection 12(1).
14. 14Subsections 59(1) and (2).
15. 15Subsection 59(3).
16. 16See the discussion of this issue, and the evolution of care benefits generally, in Moons and Co-operators General Insurance Company, (FSCO P00-00033, May 28, 2001), Stargratt and Zurich North America Canada, (FSCO P01-00045, March 31, 2003) and L.F. and State Farm Mutual Automobile Insurance Company, (FSCO P02-00026, November 24, 2003), for example.
17. 17Arbitration decision, p. 12.
18. 18Subsection 16(4) of the SABS-1996 states that the monthly amount of attendant care benefit payable "shall be determined in accordance with" Form 1, Assessment of Attendant Care Needs, which was then printed as part of the SABS. Subsequent amendments to Form 1 have not addressed the issue in dispute. The DAC system was eliminated by Ontario Regulation 403/96, but Mr. Bellavia's attendant care DAC took place in August 2004.
19. 19See subsections 16(1.1), 19(2)(b) and 27(1)3 of the SABS-1996, as amended by Ontario Regulation 458/03.
20. 20On similar reasoning, I rejected the insurer's submission that an election is inherently irrevocable, and concluded that a claimant who elected caregiver benefits was entitled to re-elect income replacement benefits because s. 36 of the SABS-1996 did not prevent her from doing so: "She is entitled to apply for benefits for which she qualifies, and she does not require express statutory approval to apply for the more advantageous benefit. On the contrary, express language is required to deprive her of benefits for which she qualifies." Antony and RBC General Insurance Company, (FSCO P03-00023, July 22, 2004), at p. 10.
21. 21Arbitration decision, p. 3.
22. 22Arbitration decision, p. 8.
23. 23Arbitration decision, p. 8.
24. 24Arbitration decision, p. 9.
25. 25Arbitration transcript, December 5, 2005, p. 4, ll. 11-21.
26. 26Arbitration transcript, December 5, 2005, p. 20, ll. 1-3.
27. 27Arbitration transcript, December 5, 2005, p. 31, ll. 7-15.
28. 28Arbitration decision, p. 8.