Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 57 FSCO A04-002430

BETWEEN:

KOKILABEN GANDHI Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND Insurer

REASONS FOR DECISION

Before: Maggy Murray Heard: March 14, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Charlia D. von Buchwald for Mrs. Gandhi Joseph Lin for the Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Kokilaben Gandhi, was injured in a motor vehicle accident on November 5, 2001. She applied for and received statutory accident benefits from the Motor Vehicle Accident Claims Fund ("MVAC Fund"), payable under the Schedule.¹ MVAC Fund refused to pay for two round-trip economy class airline tickets from Canada to India. The parties were unable to resolve their disputes through mediation, and Mrs. Gandhi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mrs. Gandhi entitled to receive a rehabilitation benefit pursuant to paragraph 15(5)(l) of the Schedule for the cost of two round-trip economy class airline tickets from Canada to India in the total amount of $2,860.00 for travel between May 31, 2005 to November 19, 2005?
2. Is Mrs. Gandhi entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
3. Is either party entitled to expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

Result:

1. Mrs. Gandhi is not entitled to receive a rehabilitation benefit pursuant to paragraph 15(5)(l) of the Schedule for the cost of two round-trip economy class airline tickets from Canada to India in the total amount of $2,860.00 for travel between May 31, 2005 to November 19, 2005.
2. No interest is payable by MVAC Fund to Mrs. Gandhi.
3. The issue of expenses is deferred.

BACKGROUND:

Mrs. Gandhi sustained injuries as a result of the motor vehicle accident on November 5, 2001. She claims a rehabilitation benefit under paragraph 15(5)(l) of the Schedule for the cost of two round trip economy class airline tickets from Canada to India in the total amount of $2,860.00 for travel between May 31, 2005 to November 19, 2005. Because Mrs. Gandhi requires 24 hour supervision, her husband travelled with her to India.

The test for entitlement to a rehabilitation benefit is set out in subsections 15(l) and (2) of the Schedule and is whether the rehabilitation benefit is both reasonable and necessary to reduce or eliminate the effects of any disability.

Subsection 15(5) of the Schedule states:

The rehabilitation 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 purpose referred to in subsection (2) for,

(a) life skills training; (b) family counselling; (c) social rehabilitation counselling; (d) financial counselling; (e) employment counselling; (f) vocational assessments; (g) vocational or academic training; (h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person; (i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person's existing home; (j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle; (k) transportation for the insured person to and from counselling and training sessions, including transportation for an aide or attendant; (l) other goods and services that the insured person requires, except services provided by a case manager.

EVIDENCE:

Mr. Gandhi testified that the purpose of he and his wife going to India was to provide his wife with a "good family environment" because they have friends and family in India which helps his wife be "in a better mood."

Mr. Jim Pesant, a social worker who has worked with Mrs. Gandhi and her family since 2002, testified that this trip to India was discussed with him and he supported the trip. He believed that the expense was reasonable and necessary because India would provide a "therapeutic milieu" for Mrs. Gandhi and she would be more "fulfilled" from a rehabilitation perspective. In particular, the environment in India is "dynamic and very engaging." Moreover, Mrs. Gandhi is "happier" both in India and when she returns home to Canada. Mr. Pesant further testified that Mrs. Gandhi's disability cannot be eliminated.

Although Mr. Pesant stated that he believed that the expense was reasonable and necessary, his report dated March 5, 2005 stated that Mrs. Gandhi "finds it very draining to interact with others, and often requires naps, which facilitates only limited interaction with her own community, and the larger community as a whole." I find that this statement by Mr. Pesant is inconsistent with his evidence that Mrs. Gandhi "appreciates the activity available to her in India." His evidence therefore does not persuade me that the airline tickets are reasonable and necessary.

In reference to the trip to India, Dr. Damji (family doctor), in his report dated March 29, 2004, stated: "I believe this is a worthwhile endeavour and may well help us rehabilitate her further." This is speculative at best and is not evidence that the trip was "necessary."

In her closing submissions, the Applicant's counsel stated that the airline tickets served a similar function as "life skills training" (i.e., paragraph 15(5)(a) of the Schedule). I do not accept this submission because no "training" was involved.

ANALYSIS:

According to the ejusdem generis rule of statutory construction (also known as the "limited class rule"), where the legislature sets out a list of items followed by a general term, the scope of the general term may be limited to a class to which the specific items belong.² The limited class rule was discussed and adopted in the context of subsection 15(5) by the Director's Delegate in Driver and Traders General Insurance Co.³ There the Director's Delegate made the following comments, which are equally applicable to Mrs. Gandhi's claim for airline tickets:

[The benefit claimed] does not fall within the list of rehabilitation measures in s.15(5). The only potentially applicable provision is s.15(5)(l) - "other goods and services that the insured person requires, except services provided by a case manager" - but it does not assist (the Applicant). As a general rule, when a general provision in a statute or regulation follows a list of specific provisions, the general provision refers to items in the same class as the class to which the specific items belong.⁴

In my opinion, airline tickets for the purpose of visiting family and friends do not fall within the same class as the benefits specifically contemplated by paragraphs 15(5)(a) through (k). Decisions of the Director or his delegates are binding upon arbitrators.⁵ Pursuant to Driver⁶ and the limited class rule,⁷ the airline tickets are not reasonable and necessary expenses under paragraph 15(5)(l) of the Schedule.

EXPENSES:

Expenses were not addressed at the hearing. If the parties are unable to agree on the issue of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.

April 12, 2006

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 57 FSCO A04-002430

BETWEEN:

KOKILABEN GANDHI Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND 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 Application for Arbitration is dismissed.
2. If the parties cannot agree on the issue of entitlement to or amount of the expenses of this Arbitration proceeding, they may request a determination of these issues in accordance with Rule 79 of the Dispute Resolution Practice Code - Fourth Edition.

April 12, 2006

Maggy Murray Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 2, 1996, Ontario Regulation 403/96, as amended.
2. 2Ruth Sullivan, Statutory Interpretation (1997) QL, Chapter 4, Textual Analysis, "The Limited Class Rule (Ejusdem Generis)" ("Sullivan"). See also National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 S.C.R. 1029, QL at 8, para. 11.
3. 3Driver (FSCO P03-00006, November 18, 2003).
4. 4Driver, ibid., QL at 13, para. 38.
5. 5Chuong Vo and Maplex General Insurance Company and Insurance Bureau of Canada, QL at 7, para. 28 (FSCO P-002777, December 12, 1997). See also Gurney and Allstate Insurance Co. of Canada, QL at 3, para. 11 (FSCO P05-00005, January 27, 2006).
6. 6Driver, supra note 3.
7. 7Sullivan, supra note 2.