Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 29 FSCO A05-000807

BETWEEN:

IGNAZIO BELLAVIA Applicant

and

ALLIANZ INSURANCE COMPANY OF CANADA / ING Insurer

DECISION ON A PRELIMINARY ISSUE

*Minor errors corrected on April 4, 2006, on pages 1 and 2 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Judith Killoran Heard: December 5 and 6, 2005, at the offices of the Financial Services Commission of Ontario in Toronto. Appearances: Joseph J. Rizzotto for Mr. Bellavia Deborah G. Neilson for Allianz Insurance Company of Canada/ING

Issues:

The Applicant, Ignazio Bellavia, was catastrophically injured in a motor vehicle accident on June 12, 2003. He applied for and received statutory accident benefits from Allianz Insurance Company of Canada/ING ("Allianz"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Bellavia applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

1. Is the insurer required to pay to Mr. Bellavia attendant care expenses incurred concurrently under subsection 16(2)(a) for the services provided by an aide or attendant and subsection 16(2)(b) for the services provided by a long-term care facility under the Schedule?

Result:

1. 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.

EVIDENCE:

Mr. Ignazio Bellavia is 76 years old and was catastrophically injured in a motor vehicle accident on June 12, 2003. He sustained severe quadriplegia. Mr. Bellavia was admitted initially to St. Michael's Hospital. On August 13, 2003, he was released to a chronic care facility. On September 17, 2003, he was transferred to Baycrest Hospital ("Baycrest"), where he continues to reside. Allianz has been paying approximately $1,500 monthly for Mr. Bellavia's care at Baycrest.

Two witnesses were called to testify on Mr. Bellavia's behalf: his wife, Rosa Bellavia and his son, Peter Bellavia. As well, Ms. Heidi Jones, a representative of ING, Allianz's successor company, was cross-examined.

On August 10, 2004, an attendant care DAC assessment was conducted at West Park Healthcare Centre. The DAC assessment report noted that Mr. Bellavia sustained the following injuries: cervical 1 and 2 fractures, brainstem infarct suggestive of a left vertebral artery occlusion/ thrombosis, and severe quadraparesis.² The report documented a lengthy list of Mr. Bellavia's limitations, while noting:

According to the Nursing staff on 7 West, there are nurses on the unit 24 hours per day who are trained in emergency procedures to supervise and assist patients in an emergency situation. They reported that in addition to the time they spend delivering hands-on care to Mr. Bellavia, they perform periodic rounds to ensure the status of all patients, observe Mr. Bellavia when providing care to the other 3 patients in his room and observe him when passing in the hall/lounge areas. However, the staff reported that they are unable to provide close and/or visual supervision at other times. They also reported that although every attempt is made to respond to the call bells in a timely fashion, this is not always possible.

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.....³

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.

Ms. Jones, a representative from ING, spoke to the relevant adjuster and reviewed the material in the file. She swore an affidavit and was cross-examined on the affidavit at the hearing. Mr. Bellavia reserved the right to cross-examine Ms. Jones again at the main hearing with respect to the substantive issues. Ms. Jones testified that attendant care needs of an insured are determined by the Form 1. According to her, the insurer will pay a monthly maximum of $6,000 for the services of either an aide or a long-term care facility in the case of a catastrophic impairment.

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.

Peter Bellavia and his two brothers take turns bringing their mother, who is unable to drive, to Baycrest every day of the week. Their mother cares for their father at Baycrest from 4-8 p.m. on Mondays to Fridays and 9-9 p.m. on Saturdays and Sundays. She assists her husband with much of his care and always has one of her sons accompany her to help. The family members are present with such frequency because they are not satisfied with the level of care provided by Baycrest.

The family has major issues with Mr. Bellavia's care at Baycrest. The witnesses testified that the services provided by Baycrest, as confirmed by the attendant care DAC assessment report, are not sufficient for Mr. Bellavia's needs. The family supplements those services with its own.

According to the witnesses, Mr. Bellavia's diaper care is not performed on a prompt basis nor is his tracheotomy suctioned regularly enough. The staff often does not respond when Mr. Bellavia pushes his call button. In the past, he has been left, on occasion, for four hours in his own feces. Mrs. Bellavia changes Mr. Bellavia's diapers with the help of her sons and the nurses. She cleans up his secretions but does not suction the tracheotomy.

Due to Mr. Bellavia's lower brain stem damage, he cannot breathe properly. He is in danger of suffocating if his tracheotomy is not suctioned frequently. Often, he turns bright red because he cannot cough up the secretions. Mr. Bellavia's tracheotomy requires suctioning every two hours or so, for secretions. His sons, Peter and Angelo, often do the suctioning of his tracheotomy.

The family also has issues with the corking and uncorking of Mr. Bellavia's tracheotomy. Corking is a process which takes about 20 minutes. If the tube in Mr. Bellavia's neck is corked, it helps him breathe through his mouth. Also, as Mr. Bellavia has been fed through his mouth for the past 4 or 5 months, he needs his tracheotomy corked when he eats.

Mrs. Bellavia takes Mr. Bellavia's daytime clothes and launders them at home. Often she helps Mr. Bellavia with dressing and undressing. On the weekends, Mrs. Bellavia and a nurse dress and bathe him. The entire family helps Mr. Bellavia with face and hand washing. The witnesses testified that the staff does not clean Mr. Bellavia properly. There is often soap residue on his face and cleaning required on his hands, head, face, neck, and upper torso. The sons shave their father's face regularly while Mrs. Bellavia clips Mr. Bellavia's fingernails and toenails.

The hospital staff are the only ones allowed to move Mr. Bellavia from his bed to his wheelchair with a device called a Liko Lift. There has been ulceration on his buttocks because he has not been moved from side to side in bed, as required.

Now the staff feed Mr. Bellavia through the mouth although he used to be fed through a feeding tube. Mrs. Bellavia feeds him when she is at Baycrest, often with food which she has cooked at home. On week nights, Mr. Bellavia remains in his bed. On Saturdays and Sundays, he is in a wheelchair from about 10:40 a.m. to 4 p.m.

On cross-examination, Peter Bellavia testified that Mr. Bellavia is receiving better care now from Baycrest. As a result, the family is more satisfied with Mr. Bellavia's care than they have been in the past. An air mattress has been provided which has alleviated Mr. Bellavia's sores and the ulceration of his buttocks. The family has talked to the nurse manager about a private nurse but they have been told by Baycrest that outside assistance is not allowed. The protocol which has been established requires the Bellavia family to speak to a social worker, who brings their concerns about Mr. Bellavia's care to the nurse manager.

ANALYSIS

The relevant portions of section 16 of the Schedule state the following:

(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) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

(5) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the accident occurred before October 1, 2003, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

Baycrest meets the statutory definition of a chronic care hospital. Allianz has been paying the monthly attendant care expense of approximately $1,500 for Mr. Bellavia's care at Baycrest. Allianz argues that according to the rules of interpretation, the "or" which separates subsections 16(2)(a) and (b) is disjunctive and signifies two mutually exclusive possibilities. Therefore, Allianz is only required to provide for the cost of an aide or the cost of a chronic care facility, not both. In order for "or" to be interpreted as "and", the result must otherwise be an absurdity or a mistake in the implementation of the legislation.

Allianz relies on Natrel Inc. v. Milk and Bread Drivers et al.,⁴ to support its argument. In this case, the court considered subsection 49(2) of the Labour Relations Act which stipulated 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 court stated:

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.

I do not find that the Natrel case assists Allianz. 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.

Allianz points to other sections of the Schedule to argue that the use of "or" is meant to be interpreted exclusively not inclusively in section 16. For example, subsection 14(2) lists various types of medical expenses payable by the insurer. The word "or" is not used. Thus, it is clear that all expenses are payable as a benefit. Subsection 15(5) lists various rehabilitation expenses but does not use the word "or"as there was no intention for any of the items to be mutually exclusive. Allianz argued that, therefore, in the context of the Schedule as a whole, it is clear that subsections 16(1) and 16(2) are mutually exclusive and subsection 16(2) is meant to be limiting.

While Allianz conceded that the care provided at Baycrest did not meet the expectations of Mr. Bellavia's family, however unfortunate the result, the legislation only authorizes the payment of either service in keeping with the legislation's scheme to reduce costs. There is no absurdity here and no clear mistake by the legislature in the use of the word "or." That is, there is no indication that there is an injustice against an insured by reading subsection 16(2) under the normal rules of interpretation where "or" is exclusive.

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. In International Woodworkers of America, Local 2-306 v. Miramichi Forest Products Ltd.,⁵ ("IWA Local 2-306") the issue related to subsection 10(2) of the New Brunswick's Labour Relations Act. The subsection was drafted, as follows:

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 ...

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 ..." Allianz relies on IWA Local 2-306 to argue that the ordinary use of "or" is exclusive.

It is only if there is "absurdity" or "ambiguity" in subsection 16(2) of the Schedule that "or" can be interpreted inclusively.

CONCLUSION

Mr. Bellavia's counsel submitted that it is important for Mr. Bellavia's physical and emotional well-being to have constant, consistent 24-hour high quality care. This is supported by the conclusions of the attendant care DAC assessment report. Baycrest allows the Bellavia family to provide additional care as there is a lack of such specific, individualized services at Baycrest.

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.

Subsection 16(4) of the Schedule requires a completed Form 1 for attendant care benefits. Allianz argued that it is only responsible for paying those costs which have been incurred, no matter what the Form 1 specifies is the required amount of attendant care needs.

"Incurred" expenses have been interpreted by both the arbitrators at FSCO and the courts so that payment by the insured of such expenses has not been required. In Wawanesa Mutual Insurance Company v. Smith,⁶ the court ruled that a purposive and remedial interpretation requires that the legislation be read so as not to require an insured person to finance, or to pledge credit in order to secure the very benefits for which he is insured. FSCO case law reflects these principles. Therefore, I cannot accept Allianz's argument that Mr. Bellavia is seeking attendant care benefits which have not been incurred. 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).

The next issue is whether Mr. Bellavia is entitled to the payment concurrently of attendant care expenses incurred under both subsections 16(2)(a) and 16(2)(b).

In Sullivan and Driedger on the Construction of Statutes,⁷ 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 2-306, 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. 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.

Allianz also relies on Simison v. Catlyn et al.,⁹ where the Court of Appeal referred to Ruth Sullivan in Driedger on the Construction of Statutes¹⁰:

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

Simison does not assist Allianz. Rather, I find that Allianz has neglected to follow the guidance offered by Simison and failed to interpret section 16 of the Schedule in the total context of the legislative scheme. I do not agree with Allianz that the traditional interpretation of the word "or" is to read it exclusively. On the contrary, I agree with Sullivan's claim that "or" tends to be used inclusively in legislation; that is, A or B or both.

More importantly, when I apply the rules of statutory interpretation and review subsections 16(2) (a) and (b) in the total context of the Schedule and indeed, the Insurance Act, I am led to the inescapable conclusion that the word "or" 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.

It is necessary to look at the intent, meaning and spirit of the legislation which we are interpreting. I find that Allianz has placed too much reliance on what it perceives as a concerted effort by the legislature in recent years, since the passing of Bill 59, to restrict benefits to the insured under successive pieces of legislation. 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.

Section 10 of the Interpretation Act¹¹ requires that every Act shall be deemed remedial and shall accordingly receive "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit." Mr. Bellavia submitted that if "or" is read exclusively, it is not in keeping with the remedial nature of the statute. Subsections 16(2) (a) or (b) must not be read in a vacuum, with no reference to reality. Subsection 16(4) requires that the monthly amount for attendant care be determined according to Form 1. The Form 1 in this case states that Mr. Bellavia is entitled to $4,082.47 in attendant care, in addition to the care provided by Baycrest.

I find that the insurer is required to pay to Mr. Bellavia attendant care expenses incurred concurrently under subsection 16(2)(a) and subsection 16(2)(b) of the Schedule. I believe that the same result is achieved if I phrase my conclusion in this fashion: I find that the insurer is required to pay to Mr. Bellavia attendant care expenses incurred concurrently under subsection 16(2)(a) or subsection 16(2)(b) of the Schedule.

EXPENSES:

I exercise my discretion to award Mr. Bellavia his expenses incurred in this preliminary issue hearing. If the parties are unable to agree on the quantum of expenses, they may apply for an assessment pursuant to the Dispute Resolution Practice Code.

February 21, 2006

Judith Killoran Arbitrator

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 29 FSCO A05-000807

BETWEEN:

IGNAZIO BELLAVIA Applicant

and

ALLIANZ INSURANCE COMPANY OF CANADA / ING Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. 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.

February 21, 2006

Judith Killoran Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Tab B, pg. 28
3. 3Exhibit 1, Tab B, pg. 29
4. 4[2001] O.J. No. 1283 (Ont. Div. Ct.) pg. 2, para. 5
5. 5(1972) 1971 CanLII 1066 (NB CA), 21 D.L.R. (3d) 239 (N.B.C.A.)
6. 61998 CanLII 18861 (ON CTGD), 42 O.R. (3d) 441
7. 74th Edition (Toronto, Butterworths, 2002) pp. 66-69
8. 8Materials on Legal Drafting (St. Paul, Minnesota: West Publishing Co., 1981) at pp. 250-251
9. 92004 CanLII 22313 (ON C.A.) pg. 5, para 14
10. 103rd Edition (Toronto, Butterworths, 1994) pg. 131
11. 11R.S.O. 1990, c.I.11