Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 84

Variation/Revocation P04-00033

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ALLSTATE INSURANCE COMPANY OF CANADA

Applicant and Respondent by Cross-Application

and

ZITA DA ROSA

Respondent and Applicant by Cross-Application

and

THE MINISTER OF HEALTH AND LONG-TERM CARE

Intervenor

Before:

Nancy Makepeace

Representatives:

Ian D. Kirby for Allstate

Rebecca Nelson for Mrs. Da Rosa

William Manuel for the Minister of Health and Long-term Care

Hearing Date:

October 3, 2005

VARIATION/REVOCATION ORDER

Under section 284 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Allstate's application for variation/revocation of my appeal order, dated May 16, 2002, is denied. Mrs. Da Rosa's application for variation/revocation of the order is granted. Paragraph 2.1 of the order is revoked and replaced by the following:

(a) Pursuant to s. 36(1)(a) of the SABS-1994, Allstate shall pay Mrs. Da Rosa's chronic care co-payments to Riverdale Hospital, plus interest under s. 68 of the SABS-1994, less amounts already paid.

(b) Pursuant to s. 47(1)(b) of the SABS-1994, Allstate shall pay Mrs. Da Rosa's long-term care fees in accordance with the Minister's decision of March 17, 2004, and as determined from time to time, plus interest under s. 68 of the SABS-1994, less amounts already paid.

The parties may contact me with respect to disputes arising out of this decision within 60 days.
If the parties are unable to agree on expenses of this proceeding, a hearing may be requested in accordance with Rule 79 of the Dispute Resolution Practice Code.

May 25, 2006

Nancy Makepeace Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Both Mrs. Da Rosa and Allstate applied for variation/revocation of my appeal decision, dated May 16, 2002, and the Minister of Health and Long-term Care ("the Minister") intervened on consent. The applications concern the interaction of the collateral benefits rules in the SABS-1994¹ and the rules governing long-term care fees allowed under the Nursing Homes Act.

On March 17, 2004, the Minister refused Mrs. Da Rosa's application for a reduction in or exemption from her long-term care fees. I accept Mrs. Da Rosa's submission that the Minister's decision requires that my appeal order be revoked in part and a new order made on the basis that Allstate is responsible to pay her fees at the prescribed unreduced rate.

Because this is essentially a dispute between Allstate and the Minister, the proceeding also involves questions about the authority of FSCO adjudicators with respect to third-party payers.

II. BACKGROUND

The background facts are detailed in the arbitrator's decision, dated December 20, 2000, and my appeal decision. Mrs. Da Rosa suffered permanent and serious injuries, including brain injuries, in an automobile accident on January 21, 1995. She has been hospitalized ever since. On April 27, 1995, she was transferred from Sunnybrook Hospital, an acute care hospital, to Riverdale Hospital, a chronic care facility. On February 12, 1997, she was moved to the O Neill Centre, a long-term care facility (nursing home), where she now resides.

Though a number of medical, rehabilitation and attendant care benefits were in dispute in the arbitration and appeal, the main issue was the extent of Allstate's responsibility to pay Mrs. Da Rosa's chronic care co-payments at Riverdale and her long-term care accommodation fees at O'Neill.² The legal issue was concisely described at p. 8 of the arbitrator's decision:

Residents of long-term care facilities in Ontario pay an accommodation fee to these institutions. These payments are authorized under regulations to the Health Insurance Act, R.S.O. 1990, c. H.6 and the Nursing Homes Act R.S.O. 1990, c. N.7., specifically, R.R.O. 1990, Regulation 552, section 10 and Regulation 832, sections 114 to 120. These fees are sometimes called co-payments.

Subparagraph 36(1)(a) of the Schedule prescribes that the insurer pay for all reasonable expenses for hospital services incurred as a result of the accident. Subparagraph 47(1)(b) of the Schedule provides that the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for services provided by a long-term care facility, including a nursing home or chronic care hospital. I find that co-payments or accommodation fees are part of these reasonable expenses. The Schedule uses mandatory language with regard to the payment of these expenses.

At the same time, the Schedule also provides, however, at subsection 75(13) under the heading "Collateral Benefits," for Part 7, 8, 10, and 13 benefits, that the insurer need not make any payment "for that portion of an expense that is reasonably available in respect of the insured person under any insurance plan or law or under any other plan or law." Ontario residents with low taxable incomes pay a lower accommodation fee to long-term care facilities for basic accommodation than residents with higher taxable incomes. The provisions dealing with the amounts they pay are set out in the regulations referred to above.

Because Allstate refused to pay the fees charged by Riverdale and O'Neill, they were paid out of Mrs. Da Rosa's personal funds. Between April 1995 and February 1997, Mrs. Da Rosa paid Riverdale a total of $13,063.99 in co-payments at a reduced rate. By the time of the arbitration hearing in September 2000, she had paid some $56,000 to O'Neill, and continued to pay $1,308.99 monthly, the unreduced rate at that time. It was agreed at the arbitration hearing that Mrs. Da Rosa's representatives had not applied for any reduction in her O'Neill fees, though the parties disagreed about who was responsible for the failure to do so.

A key issue in this proceeding is whether the Minister is authorized to consider non-taxable income in determining eligibility for a reduced fee. Mrs. Da Rosa's weekly caregiver benefits from Allstate are not taxable. During the periods at issue, her taxable income totaled about $4,000 per year, consisting of Canada Pension Plan survivor's benefits and a small amount of interest. On that basis, Ms. Luba Trivanovic (Riverdale) and Ms. Linda Berry-Morgan (O'Neill) testified at the arbitration hearing that Mrs. Da Rosa was eligible for the prescribed reduced rate³and might qualify for an additional reduction. Mrs. Da Rosa's representatives submitted the appropriate applications during the course of that hearing.

By the last day of the hearing, O'Neill had reduced Mrs. Da Rosa's fees to $870.55 per month, the prescribed reduced rate at that time, creating an overpayment of $39,267.27, which was credited to Mrs. Da Rosa's account. The arbitrator accepted that Allstate was relieved of its responsibilities under s. 36(1)(a) of the SABS-1994 (medical benefits) and s. 47(1)(b) (attendant care benefits) to the extent of this reduction, which was "reasonably available" to Mrs. Da Rosa under s. 75(13) of the SABS-1994.⁴ She ordered Allstate to pay Mrs. Da Rosa's O'Neill fees at the reduced rate once the credit was paid out. Because Riverdale had not yet responded to Mrs. Da Rosa's application for an additional fee reduction, the arbitrator ordered Allstate to reimburse Mrs. Da Rosa for the payments she had made to Riverdale. The pertinent paragraphs of the arbitrator's order were as follows:

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

(a) Allstate Insurance Company of Canada shall pay Zita Da Rosa $13,063.99 in supplementary medical expenses for chronic care co-payments and $39,303.66 in attendant care benefits for long-term care accommodation fees pursuant to paragraphs 36(1)(a) and 47(1)(b), respectively, of the Schedule. Allstate Insurance Company of Canada shall pay Zita Da Rosa interest on these overdue amounts from the dates the amounts became overdue, at the rate of 2 percent per month, compounded monthly, as provided in section 68 of the Schedule, that is beginning incrementally from March 1996 for the former and beginning from March 1997 for the latter amount.

(b) Allstate Insurance Company of Canada shall pay Zita Da Rosa $890.89 per month from December 1, 2000, ongoing, to cover the basic accommodation charges of the O'Neill Centre. Allstate Insurance Company of Canada shall continue to pay the net accommodation charges, ongoing, as determined from time to time by the O'Neill Centre, reflecting any reduction in accommodation fees permitted to Mrs. Da Rosa.

The arbitrator also ordered a special award of $10,000, inclusive of interest, under s. 282(10) of the Act, "because [the insurer] unreasonably withheld chronic care co-payments and long-term care accommodation fees from Mrs. Da Rosa."⁵ Though she succeeded on all issues, Mrs. Da Rosa was only awarded two thirds of her arbitration expenses because of her guardian's last-minute withdrawal of an important proposal and in light of the special award.

Allstate appealed the decision on the basis of the evidence that additional fee reductions might be available based on Mrs. Da Rosa's low taxable income. Mrs. Da Rosa cross-appealed, seeking a larger special award and her full arbitration expenses.

In the meantime, both counsel communicated with the two facilities with respect to the outstanding applications. In February 2001, Ms. Berry-Morgan confirmed that the Minister had approved Mrs. Da Rosa's September 2000 application for a rate reduction from February 1997, when she was admitted to O Neill, to August 2000. However, Ms. Berry-Morgan stated that the only other option would be an exceptional circumstances application based on documentation that Mrs. Da Rosa could not afford to pay the reduced rate and "all other sources of income have been denied"; because of Allstate's involvement, Mrs. Da Rosa would not qualify.

The following month (March 2001), Allstate began paying O Neill $180 per month on an ongoing basis, and Mr. Kirby sent Ms. Nelson a cheque for $25,729.95, being $180 per month from August 1, 1995, plus interest of $13,489.95. This was based on Allstate's position that Mrs. Da Rosa was entitled to a further reduction in her fees under the nursing homes legislation.

In April 2001, Riverdale reimbursed Mrs. Da Rosa for the entire amount of her co-payments, based on her income tax returns, which were provided by Allstate's counsel. However, Mrs. Da Rosa's representatives questioned her entitlement to this reimbursement in light of the arbitrator's order.

The amount of Mrs. Da Rosa's chronic care and long-term care fees was the main issue at the appeal hearing in August and September 2001. On consent of the parties, and because there was a variation aspect to the appeal, Ms. Trivanovic and Ms. Berry-Morgan testified at the appeal hearing. They now stated that Allstate was responsible for paying the full amount of Mrs. Da Rosa's fees. I rejected this evidence, which I found inconsistent with the regulations made under the Health Insurance Act and Nursing Homes Act. I concluded that because of Mrs. Da Rosa's low taxable income, a further reduction below the reduced rate of $890.89 was "reasonably available" to her, and that s. 75(13) allowed Allstate to reduce its benefit accordingly. I accepted Allstate's calculation of Mrs. Da Rosa's reduced co-payment as $180 per month, but noted that a full exemption might be available, and I ordered her to make the appropriate applications. My order with respect to chronic care and long-term care fees was as follows:

Paragraph 1 of the arbitrator's order is revoked, and the following substituted:

Pursuant to s. 36(1)(a) of the SABS-1994, Allstate shall pay Mrs. Da Rosa's chronic care co-payments to the Riverdale Hospital, and pursuant to s. 47(1)(b), Allstate shall pay Mrs. Da Rosa's chronic care co-payments to the O'Neill Centre, in the amount of $180 per month, from August 1, 1995 and ongoing, plus interest under s. 68 of the SABS-1994, less amounts already paid.
Within 30 days of this decision, Mrs. Da Rosa shall complete an application for an exemption with respect to the Riverdale Hospital and the O'Neill Centre, and provide all necessary documentation to support the application, as well as a copy of the decision.
Either party may move to reopen this hearing within 60 days of this decision, in the event of any remaining disputes about the amount payable.

I also revoked the special award ordered by the arbitrator, which was based on her much higher benefits award and her criticism of Allstate's conduct. I did not agree with the arbitrator's view that the issue was "relatively simple", but found, on the contrary, that almost everyone involved, including Mrs. Da Rosa's representatives as well as the facilities and the insurer, was uncertain of the interaction between the SABS and the co-payment rules.

Additional conduct issues had arisen pending the appeal hearing relating to communication between counsel and the facilities. I did not accept Mrs. Da Rosa's submission that Allstate's counsel acted improperly in attempting to expedite the applications I ordered. In my view, the real problem was the delay on the part of Mrs. Da Rosa's representatives in applying for fee reductions, by which time the facilities were drawn into the dispute. On that basis, I ordered Allstate to pay only half Mrs. Da Rosa's appeal expenses, though I ordered payment of her arbitration expenses in full.

In October 2002, Ms. Nelson submitted an exceptional circumstances application in accordance with my order, though the process was delayed for several reasons, including the Ministry’s request for further tax information. Finally, on March 17, 2004, the Ministry gave its decision refusing the application and requiring Mrs. Da Rosa to pay O'Neill the full amount – $1,480.99 per month by that time – though the reduced fee would continue pending Allstate's payment of the amounts owing. The Ministry’s decision, which dealt only with Mrs. Da Rosa’s long-term care fees, was the sole basis for this appeal; as discussed at the end of my reasons, I will remain seized in case there is any outstanding dispute about the amount of her chronic care co-payments owed to Riverdale.

On receiving the Ministry’s decision, Mrs. Da Rosa’s representatives asked Allstate to commence full payment of her fees. Instead, Allstate has continued to pay $180 per month for her O Neill fees in accordance with my appeal order. In October 2004, Allstate applied for variation of the appeal order based on a recalculation – to $218.83 per month – of the benefits owing after deduction of the reductions it believes are available. Allstate submits that the appeal decision was correct in finding that Mrs. Da Rosa's low taxable income entitles her to this nominal fee, and argues that the Ministry has no authority to refuse Mrs. Da Rosa's application.

Mrs. Da Rosa also applied for variation of the appeal order. She submits that the Ministry's decision obliges Allstate to pay her fees at the full amount, and relies on case-law standing for the proposition that once an application is refused by a collateral payer, the benefit is not " available" or "reasonably available" for purposes of collateral benefits deductibility.

The Minister applied to intervene on the basis that the appeal decision interprets its statutes and directly impacts its programs. The parties consented, and I agreed the intervention was appropriate and likely to be helpful. It was agreed the Minister would not lead evidence and would not be eligible or responsible for variation expenses.

III. ANALYSIS

A. Introduction

For the reasons that follow, I find that the Minister's decision is a "material change in the circumstances of the insured" or "evidence not available on the . . . appeal" that requires variation of the appeal order pursuant to s. 284(3) of the Insurance Act. I agree with Mrs. Da Rosa that her application and the Minister's decision exhausts her obligation to pursue collateral relief, and therefore Allstate has failed to satisfy the onus of proving that any portion of her long-term care expenses is "reasonably available" under another plan or law. Accordingly, Allstate will be ordered to pay Mrs. Da Rosa's fees as determined by the Minister from time to time.

While I am driven to this result by the facts and law before me, this case raises difficult questions about the interaction of the automobile accident benefit scheme and the chronic care and long-term care schemes.

B. The Ministry's Decision

The Ministry's decision, given by letter dated March 17, 2004, was signed by Ms. Maria Marin, Senior Financial Analyst. Its full text is as follows:

Thank you for your letter dated April 17, 2003 requesting a reduction in long-term care accommodation fees-exceptional circumstances from 1996-2000. I apologize for the delay in responding and hope this letter provides clarification.

In reviewing the reasons for decision, the arbitrator [sic] relied on the bulletin "Chronic Care Co-Payment" published by the Ministry of Health and Long-Term Care. The bulletin sets out the criteria for an exemption on the co-payment charged by a hospital/chronic care facility defined under the Health Insurance Act. The O Neill Centre is not a facility under the Health Insurance Act but receives authority for funding under the Nursing Home Act.

In particular, the arbitrator relied on the notion that a full exemption is available for patients "where a third party (such as Worker’s Compensation Board, insurance company, Department of Veterans Affairs or other Federal Government agency) pays either the total hospital costs or the co-payment".

This criterion does not apply to long-term care facilities such as The O Neill Centre.

Since the injuries suffered by Mrs. Da Rosa were as a result of a motor vehicle accident, the Accident Benefit Carrier, Allstate, would be the first payer of any benefit or service not payable by the Ministry of Health and Long-Term Care. Such as the co-payment to a long-term care facility, currently the co-payment amount is $1480.99 per month or $48.69 per day.

The application for reduction in accommodation fees-exceptional circumstances is available to residents who have exhausted all sources of income and is applicable from the first day of the month when the application was made to the ministry.

However, we understand from the attached documentation there is [a] claim against Allstate Insurance Company on behalf of the resident.

In order to alleviate undue hardship to the resident we have approved a reduction in accommodation fees for Ms. Da Rosa. The approved accommodation rate will be effective Oct 2002 and must be adjusted once the resident starts receiving additional financial assistance from Allstate and the adjustment should be applied retroactively if the entitlement is retroactive. [emphasis in original]

With respect to the "Chronic Care Co-Payment" bulletin referred to in the Ministry's letter, I note that the Minister relied on the same document in its submissions in the current proceeding, stating that it "addresses co-payments in the context of the Health Insurance Act, but the same approach is used in the context of the Nursing Homes Act."⁶

The Minister gives several other reasons for its decision, but its essential position is that a reduction in long-term care fees is a discretionary social assistance measure that is intended to relieve hardship, not to benefit auto insurers.

I find the Minister's position difficult to square with the legislative scheme.

C. "All Other Sources of Income"

As indicated at p. 5 of my appeal decision, chronic care co-payments are authorized by s. 10 of Regulation 552 made under the Heath Insurance Act. Apart from children under 18 and persons who were receiving social assistance benefits before admission to hospital, who are exempt, a co-payment is charged to all chronic care patients. The amount of the co-payment is based on "estimated income" less a "comfort allowance," to a prescribed maximum. "Estimated income" is defined in subsection 10(11) of the regulation:

'estimated income' means the average monthly income of any nature or kind whatsoever, so long as it is taxable under the Income Tax Act (Canada), of an insured person . . . , including

a) payments made under an Act of the Parliament of Canada or by Ontario,

b) income from salaries and wages,

c) income from an interest in or operation of a business, less expenses incurred in earning such gross income, and

d) income from investments, less expenses incurred in earning such income.

This definition does not include accident benefits, which are non-taxable. The same definition is found in the Ministry’s Co-payment Calculation sheet, though that document also includes "annuities, superannuation, insurance benefits" in its list of reportable income sources.⁷

Section 114 of Regulation 832 under the Nursing Homes Act provides that long-term care fees "shall be determined in accordance with sections 115 to 120." There is an annually adjusted prescribed maximum rate for short-stay and long-stay residents in basic, semi-private or private accommodation. As Mrs. Da Rosa is a long-stay resident in basic accommodation, the prescribed fees have ranged from $1,225.62 per month, from July 1, 1996 to June 30, 1997, increasing to $1,480.99 from July 1, 2003.

Section 116 of the regulation allows a long-stay resident in basic accommodation to apply for a fee reduction by submitting an application to the licencee of the nursing home, along with her income tax return and notice of assessment for the previous year, or, if not required to file an income tax return, "proof of the resident's disposable income for that year." The reduction is effective from the first day of the month in which the application is completed until the June 30 following, and a new application must be made every year.

The reduced fee is determined in accordance with a reduction worksheet which calculates "disposable annual income" as "net income from line 236 [of the income tax return]" less "total payable federal and provincial taxes from line 435," and the resident is allowed to keep an approved "comfort allowance" for daily expenses ($1,392 in 2004).⁸ The reduced monthly rate is the greater of that amount, divided by twelve, or the reduced rate prescribed under s.116(4). It was on that basis that O'Neill allowed Mrs. Da Rosa's application for the prescribed reduced rate of $890.89 per month in early 2001 as a result of the application made during the arbitration hearing.⁹ The arbitrator concluded there was no evidence any further reductions were reasonably available, and ordered Allstate to pay Mrs. Da Rosa's fees at that rate.

Section 116.1 of the regulation allows a resident who pays the reduced rate to apply for a further rate reduction by making an "exceptional circumstances" application to the Director, an official of the Ministry.¹⁰ Again, the regulation requires the resident to submit her income tax return and notice of assessment for the previous year, or, if not required to file, proof of her "disposable income" for that year. The application form goes further.¹¹ It requires the resident to state that she has applied for "all benefits, entitlements, supplements or other financial assistance" from the federal or a provincial government, and has not had a government benefit reduced based on her income in the past year. It also requires the resident to include information about a broad range of income sources, including "annuities, superannuation, insurance benefits." The breadth of income information required on the exceptional circumstances application supports the Minister's contention that this additional reduction is available only on a needs basis, considering all other sources of income, after the resident has applied for any available government benefits.

However, the Minister’s authority for considering non-taxable income is unclear to me based on the materials filed.

D. "Allstate would be the first payer"

The Minister’s position is that Mrs. Da Rosa must pay the full rate because of Allstate’s involvement. The Minister submits that where the need for long-term care arises from an automobile accident, the auto insurer is the first payer, and therefore Mrs. Da Rosa’s accident benefits must be considered in determining her eligibility for accommodation fee reductions. The Minister submits that the rules were not intended to benefit auto insurers at the expense of the public health care system.

Whatever the merits of this position from a public policy perspective, the simple answer is that subsection 75(13) of the SABS-1994 – the provision I must interpret – provides that attendant care benefits are excess to "that portion of an expense . . . that is reasonably available in respect of the insured person under any insurance plan or law or under any other plan or law" [emphasis added]. The language is broad, does not exempt publicly-funded insurance plans, and extends to expenses reasonably available under "any other plan or law."¹²

E. "Reasonably available"

Subsection 75(13) of the SABS-1994, the collateral benefits rule that applies to medical, rehabilitation and attendant care benefits, relieves Allstate of the obligation to pay for "that portion of an expense that is reasonably available in respect of the insured person under any insurance plan or law or under any other plan or law." [italics added]

When is an expense "reasonably available"? The phrase is used nowhere else in the collateral source provisions of the SABS-1994, but also appears in s. 9(1) of the SABS-1990,¹³ which was the predecessor to s. 75(13) of the SABS-1994, and in s. 60(2) of the SABS-1996,¹⁴ which succeeded it. Subsection 75(13), which concerns medical, rehabilitation and attendant care benefits, stands apart from the remaining provisions of s. 75, which concern the deduction from weekly benefits of collateral benefits received or "not received" but "available" "unless the insured person has applied to receive the payments." The difference in terminology relates to the function of s. 75(13). Unlike weekly benefits, which are ongoing regular payments intended to compensate for disability and maintain an income stream, medical, rehabilitation and attendant care benefits are provided on a claim by claim basis to pay for services the claimant needs as a result of the accident. In many cases, the third-party service provider bills the insurer directly. For example, there is no dispute that s. 75(13) exempts auto insurers from paying for OHIP-covered services, though doctors and hospitals bill OHIP directly, without any expense to or reimbursement of the patient.

For this reason, I reject the Minister's submission that a reduction in long-term care fees is not a "portion of an expense" within the meaning of s. 75(13). As I read the provision, it makes no difference whether a third-party payer reimburses Mrs. Da Rosa for overpaid fees or reduces her fees prospectively. Either way, the expense to Mrs. Da Rosa is the amount for which she is ultimately responsible, and that is the amount Allstate must pay.

Collateral benefits provisions are not unique to the SABS. Though the automobile insurance scheme in effect between December 31, 1993 and November 1, 1996 precluded recovery of pecuniary damages while providing enhanced benefits under the SABS-1994, the Insurance Act provisions applicable to the Bill 68 and Bill 59 schemes include rules for the deduction of certain accident and disability benefits from damages recovered in tort.¹⁵

Neither Allstate nor the Minister took issue with the summary of the law set out in Mrs. Da Rosa’s submissions. I conclude this case is governed by the principles for deductions from damages set out in the line of decisions culminating in Bannon v. McNeely (1998), 1998 CanLII 4486 (ON CA), 38 O.R. (3d) 659 and Chrappa v. Ohm, (1998), 1998 CanLII 893 (ON CA), 38 O.R. (3d) 651, which concerned s. 267(1)(a) (Bannon) and s. 267(1)(c) (Chrappa) of the Insurance Act, the reduction of damages provisions that applied to accidents between October 23, 1989 and December 31, 1993:

267(1) The damages awarded to a person in a proceeding for loss or damage arising directly or indirectly from the use or operation of an automobile shall be reduced by,

(a) all payments that the person has received or that were or are available for no-fault benefits and by the present value of any no-fault benefits to which the person is entitled;

(c) all payments that the person has received or that were or are available for loss of income under the laws of any jurisdiction or under an income continuation benefit plan and by the present value of any such payments to which the person is entitled; [emphasis added]

In both cases, the collateral payer was continuing to pay benefits at the time of the trial, but there was no guarantee they would continue to do so. The issue was whether the present value of future benefits should be deducted from the (analogous) head of damages. In Chrappa, Justice Goudge, writing for the court, stated, "in my view, the jurisprudence supports the view that where the concept of entitlement to future long-term insurance benefits is used as a basis for reducing the plaintiff's damage recovery it [s. 267(1)(c)] must be strictly interpreted to require that it be beyond dispute that the plaintiff qualifies for these future payments in every respect." The Bannon court reaffirmed that the defendant who seeks the advantage of the deduction must prove that entitlement to the future benefits is "beyond dispute." Further, where an application has been made and refused, the plaintiff is entitled to rely on the collateral payer's rejection as proof that the benefit is neither received nor available.¹⁶ She is not required to pursue legal remedies against the collateral payer.¹⁷ The defendant bears the onus of proving the plaintiff is "entitled" to the collateral benefit, and cannot meet that onus if the application has been made and rejected.¹⁸

I see no reason for taking a different approach to s. 75(13). In my view, the collateral benefits rules in the SABS are intended to achieve the same legislative purposes as the deduction from damages rules in the Insurance Act – to prevent double recovery, give effect to rules about priority of payers, ensure appropriate relief for accident victims, and minimize litigation. In this case, double recovery is not in issue, and there is no question Mrs. Da Rosa requires the care she has received at Riverdale and O'Neill as a result of the accident. There is no dispute now that Mrs. Da Rosa has made the appropriate reduction/exemption applications, supported by the required documentation. The remaining dispute is whether the SABS requires her to pursue the matter further. The operative phrase in s. 75(13) is "reasonably available." While I would be inclined to conclude, based on the Ministry's decision, that no fee reduction or exemption is "available" to Mrs. Da Rosa, the use of the qualifier "reasonably" provides further support for that finding. In my view, an expense, reduction, exemption or subsidy that can only be obtained, if at all, by judicial review, is not "reasonably available." As between Mrs. Da Rosa and Allstate, s. 75(13) imposes on Allstate the cost, risk and delay of any additional litigation beyond this point.

Accordingly, Allstate's application for variation/revocation is denied, and Mrs. Da Rosa's application (cross-application) for variation/revocation is allowed.

F. The Terms of my Order

Two issues remain. The first concerns the scope of my order. With respect to O'Neill, the Ministry's decision of March 17, 2004 was made in response to Mrs. Da Rosa's exceptional circumstances application of October 25, 2002, but references the period 1996-2000, and makes no reference to the Ministry's previous decision, confirmed by Ms. Berry-Morgan in February 2001, to approve a reduced rate between February 1997 and August 2000. My order may also have implications for Riverdale, which refunded Mrs. Da Rosa's chronic care co-payments in April 2001, but stated soon afterwards that the money would be repayable if the arbitrator's order were upheld. Any remaining dispute about the amounts owing may be referred to me within 60 days of this decision.

The second issue is whether Allstate has any further recourse in this matter. Having decided the dispute between Mrs. Da Rosa and Allstate, and subject to the above, I have exhausted my jurisdiction. Neither the arbitrator's order nor my previous order bound the Minister, and I have no authority now to order the Minister to reduce Mrs. Da Rosa's fees or even to reconsider its decision.

The Minister concedes its decision is reviewable by way of judicial review. What is not clear is how the matter may be brought before the court. Unfortunately, the SABS and the Insurance Act do not provide any obvious remedy for the insurer in this situation. For example, while s. 284 of the Insurance Act allows either the claimant or the insurer to apply for variation of my order on the basis of new evidence or changed circumstances – the provision that gave rise to this hearing – I do not have authority to impose a Cox v. Carter order. I take some comfort in the suggestion at the conclusion of the hearing that the parties may be willing to discuss this issue further in the hope of bringing this dispute to a final resolution.

IV. EXPENSES

If the parties are unable to agree on expenses, the dispute may be resolved pursuant to Rule 79 of the Dispute Resolution Practice Code.