Neutral Citation: 2016 ONFSCDRS 314

FSCO A13-005372

BETWEEN:

ANNE BARNES Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND Insurer

REASONS FOR DECISION

Before: Anne Sone

Heard: October 27, 28, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on November 13, 20 and 26, 2014. Oral submissions were heard on February 19, 2016 by teleconference call. Final written submissions were received on February 20, 2016

Appearances: J. Douglas Wright and Stanley Razenberg for Ms. Barnes Robert Kerkmann and Marie Sydney for Motor Vehicle Accident Claims MVAC Fund

Overview:

The Applicant, Anne Barnes, was injured in a motor vehicle accident on January 3, 2012. She applied for and received statutory accident benefits from the Motor Vehicle Accident Claims Fund (the MVAC Fund), payable under the Schedule.¹ Disputes arose regarding Ms. Barnes’ claims for attendant care and other benefits. The parties were unable to resolve their disputes through mediation, and Ms. Barnes applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

Is Ms. Barnes entitled to payment of attendant care expenses submitted for the period between January 3, 2012 and February 25, 2012² while she was an in-patient at Kingston General Hospital and West Park Rehabilitation Centre?
Is Ms. Barnes entitled to payment of attendant care expenses submitted for the period between mid-June 2012 and mid-June 2013 while she was living with her boyfriend, less amounts paid?
Does the amendment in paragraph 19(3)4 of the Schedule (which deals with the amount of the attendant care benefit payable which shall not exceed the amount of the economic loss sustained by the attendant care provider) that came into effect on February 1, 2014 apply to motor vehicle accidents after January 31, 2014 so that Ms. Barnes’ claim for attendant care expenses for services provided by Ms. McColeman is limited by the economic loss sustained by Ms. McColeman?
Is Ms. Barnes entitled to interest on overdue amounts and, if so, in what amount?
Is Ms. Barnes entitled to a special award?

Result:

Ms. Barnes is not entitled to payment of attendant care expenses submitted for the period between January 3, 2012 and February 25, 2012 while she was an in-patient at Kingston General Hospital and West Park Rehabilitation Centre.
Ms. Barnes is not entitled to payment of attendant care expenses submitted for the period between mid-June 2012 and mid-June 2013, while she was living with her boyfriend, less amounts paid.
Ms. Barnes’ entitlement after January 31, 2014 to attendant care expenses for services provided by Ms. McColeman is not limited by the economic loss sustained by Ms. McColeman.
Ms. Barnes is entitled to interest on overdue amounts of her attendant care benefit from mid‑June 2013 onward in accordance with the Schedule.
Ms. Barnes’ claim for a special award is dismissed.

EVIDENCE AND ANALYSIS:

Relevant Excerpts from the Parties’ Agreed Statement of Facts and Timeline:

On January 3, 2012, Anne Louise (Emily) Barnes was passenger on a snowmobile operated by her boyfriend, Frazer Bird, when the snowmobile flipped causing injuries to Ms. Barnes.
Ms. Barnes was 24 years old at the time of the accident. She was living with her boyfriend and working full-time as an administration assistant.
Following the accident, Ms. Barnes was taken to Quinte Hospital in Bancroft and was immediately transferred to Kingston General Hospital (KGH). Ms. Barnes had several surgeries at KGH and was discharged to West Park Rehabilitation Centre (West Park) on January 25, 2012 and began living with her mother, Louise McColeman.³
As a result of the accident, Ms. Barnes sustained a closed head injury (CT scans showed no intracranial bleeding or skull fracture), multiple rib fractures, hemopneumothorax,⁴ pulmonary contusions,⁵ right subcutaneous emphysema, non-displaced C7-T7 fractures, left scapular⁶ fracture, bilateral sacral ala⁷ fractures, right anterior column⁸ fracture, lacerations of the liver and spleen, associated symptoms of pain, headaches, dizziness, fatigue, decreased concentration and cognitive difficulties, and psychological symptoms, emotional lability, anxiety, fear, and low mood. Ms. Barnes was subsequently diagnosed with fibromyalgia and chronic pain and underwent treatment at a chronic pain facility.
Ms. Barnes applied for statutory accident benefits to Echelon, the insurer of a vehicle owned by Mr. Bird, by letter dated January 30, 2012. Crawford Adjusters⁹, on behalf of Echelon, began adjusting Ms. Barnes’ claim and disputed priority with the MVAC Fund.
On February 13 and 26, 2012, while Crawford was adjusting the file, two Disability Certificates were received on February 13 and February 26, 2012 that indicated entitlement to income replacement benefits (IRBs) and housekeeping benefits.
On February 28, 2012 Crawford requested a Statutory Declaration.
On March 7 and 12, 2012, three Form 1s¹⁰ and an OT¹¹ report of Lisa Duffus were submitted to Crawford. The Form 1s were for the following periods:

January 3, 2012 to January 24, 2012 (while at KGH) for $7,867.37 per month

January 25, 2012 to February 25, 2012 (while at West Park) for $7,833.68 per month

February 26, 2012 to March 12, 2012 (post-discharge) for $7,728.26 per month¹²

On March 22, 2012, the Statutory Declaration was returned. It indicated that Ms. Barnes required attendant care from her mother and boyfriend. It did not provide information about Mr. Bird’s economic loss but did state in respect of Ms. McColeman that she was not working but was using her vacation pay.
On April 11, 2012, Ms. Barnes indicated that attendant care was provided [by] Louise McColeman and enclosed a letter from ANRIC Enterprises Inc., Ms. McColeman’s employer, indicating that Ms. McColeman was on a leave of absence since January 3, 2012 and that she has exhausted her sick leave and vacation pay such that her last paycheck was on [M]arch 1, 2012. Thereafter, her leave after March 1, 2012 would be without pay.
…¹³After March 1, 2012, Ms. McColeman did sustain an economic loss as a result of providing attendant care services to Ms. Barnes by leaving her place of employment on an unpaid leave.
Under cover of letter dated April 11, 2012, Ms. McColeman’s visitor expenses were also submitted by way of a list. No original receipts were provided.
On April 19, 2012, Crawford requested signed attendant care receipts from Ms. McColeman. Ms. Barnes declined to provide signed receipts and took the position that receipts were only required where the insurer does not have knowledge as to the reasons why the expenses have been incurred.
On May 14, 2012, Crawford requested, pursuant to section 33, further information regarding service providers, economic loss, and the services being provided to Ms. Barnes in respect of attendant care. A further Statutory Declaration was provided on June 4, 2012.
On May 17, 2012, Crawford issued a cheque to Ms. Barnes for $3,000 for attendant care for the month of March, indicating that it had received confirmation that Ms. McColeman had sustained an economic loss starting March 1, 2012 and was providing care to Ms. Barnes. Crawford also indicated that only incurred expenses are payable and requested that Ms. Barnes submit an Expense Form (OCF-6), (which Crawford attached) and supporting documentation (invoices, receipts) on a monthly basis.
On May 28, 2012, Ms. Barnes took the position that an OCF-6 was not required for payment of attendant care expenses.
On June 12, 2012, Crawford wrote to Ms. Barnes indicating that they are issuing attendant care payment of the months of April and May, with interest, and again requesting that Ms. Barnes submit an OCF-6 and invoices or receipts for subsequent months.
Crawford arranged for its own attendant care assessment report¹⁴ which was dated June 14, 2012 and the attached Form 1 was assessed at $7,817.30.¹⁵ On June 18, 2012, Crawford provided the report to Ms. Barnes and again requested that she submit expense forms, receipts and invoices in order to receive payment for the submitted expenses.
On June 22, 2012, Crawford responded to the claim for visitor expenses by indicating that Ms. Barnes submitted only a list of expenses and that no receipts were submitted. Crawford requested original receipts in support of the claim. Crawford agreed to reimburse gas, parking, and hotel expenses, as it was not possible to consider their reasonableness and necessity without having the original receipts. Instead, Crawford paid $25 per day for the 33 days that Ms. McColeman visited Ms. Barnes.
A total of $2,313.69 was paid by Crawford out of the $4,499.15 claimed. Original receipts were not provided to Crawford or to the MVAC Fund.
On June 28, 2012, the MVAC Fund accepted priority of Ms. Barnes’ claim and began adjusting Ms. Barnes’ claim through its adjusters, Claimspro.
In June 2012, Ms. Barnes began living with her boyfriend.
On July 30, 2012, Ms. Barnes submitted an OCF-6 dated July 30, 2012 “under protest” for attendant care services provided by Louise McColeman “as per Form 1” for the period of January 2, 2012¹⁶ to July 30, 2012 at $3,000 per month for a total of $21,000.
On August 10, 2012, Claimspro responded to the submitted OCF-6 indicating that it required an invoice from the service provider detailing the assistance provided and indication that the services were “incurred.” It referred to Crawford’s letter of April 11, 2012.
On August 13, 2012, Ms. Barnes submitted a statement for the period from January 2, 2012 to August 13, 2012 signed by Ms. McColeman where she indicates that she provided attendant care services to Ms. Barnes for that time period “as per the [two] Form 1” forms dated March 8 and May 31, 2012.
On August 13, 2012, Claimspro responded indicating that it would issue an attendant care benefit for the months of June, July and August 2012. However, it reiterated Crawford’s and Claimspro’s earlier requests that Ms. Barnes submit OCF-6 forms with an invoice from the service provider detailing the assistance provided and confirmation that the expense being claimed was incurred. Claimspro enclosed a Tracking Sheet for the benefit of the service provider to track the care provided.
On August 15, 2012,¹⁷ confirming that the attendant care benefit is not being denied but that the MVAC Fund requires that Ms. Barnes submit attendant care expenses and invoices detailing the services provided. A further tracking sheet was enclosed.
On September 17, 2012 and October 4, 2012, Ms. Barnes submitted OCF-6 expense forms and statements from Ms. McColeman indicating that she provided attendant care services between August 15 and October 4, 2012 to Ms. Barnes “as per the Form 1s”.
On October 18, 2012 Claimspro responded to the submitted expense forms and statements. Claimspro noted that Ms. Barnes indicated that both her mother and her boyfriend were providing care to her but the expenses were submitted only by Ms. McColeman. Claimspro invoked paragraph 48(2)(a) and requested that the service provider provide invoices and information about services provided directly to the Fund.
Ms. Barnes applied for and was approved for various medical and rehabilitation benefits. As of February 8, 2013, the [non-catastrophic impairment medical rehabilitation benefit] limit of $50,000 had been reached.
On March 20, 2013, Ms. Barnes reiterated her position that receipts are only required where the insurer does not have knowledge as to the reasons why the expenses have been incurred. Ms. Barnes also indicated that she disagrees that a breakdown of services provided by Ms. McColeman is required because there are Form 1s in place that describe in detail the kind of attendant care she requires. Ms. Barnes advised that she moved back in with her boyfriend as of June 2012 but that Ms. McColeman visits her daily and stays with her until 6[:00] p.m. or later – spending about 12 hours per day assisting Ms. Barnes.
On June 10, 2013, Ms. Barnes advised Claimspro that as of June 9, 2013 she moved back with her mother at her new residence as the relationship with her boyfriend had terminated.
Between June 2012 and June 2013 while Ms. Barnes was living with her boyfriend, Mr. Bird, Ms. Barnes received about 12 hours of care from Ms. McColeman and the remaining 12 hours she received care from Mr. Bird.¹⁸
On September 23, 2013, Ms. Barnes submitted further OCF-6 forms and statements from Ms. McColeman indicating that she provided attendant care services “as per the Form 1s” to Ms. Barnes for the period of October 5, 2012 to September 23, 2013.
On December 3, 2013, Claimspro wrote to Ms. Barnes reiterating its explanation that attendant care expenses were not paid because Ms. Barnes did not submit invoices detailing what attendant care services were being provided by Ms. McColeman which was necessary because the invoices she submitted for the period when Ms. Barnes was living with her boyfriend indicate that all of the care set out in the Form 1 was provided by Ms. McColeman whereas she advised earlier that she provided only 12 hours of care. The letter further indicated that the invoices that were submitted in respect of January and February 2012 were not credible as they alleged that Ms. McColeman provided 24 hour care to Ms. Barnes during her hospital stay. Claimspro advised that it did not require a minute by minute¹⁹ but that it did require the approximate dates and times of services provided which could be fulfilled by completing the Tracking Sheet provided in August 2012. Claimspro indicated that despite non-compliance, it was paying the balance of the [non-catastrophic] limit (being $36,000) to Ms. Barnes in respect of attendant care for a total payment of $18,000. Claimspro indicated that it is maintaining its position that it is [entitled] to more detailed information than that submitted by Ms. Barnes.
On December 16, 2013, Claimspro sent a cheque to Ms. Barnes in the amount of $18,000.
On January 2, 2014 (at two years post-accident), Ms. Barnes submitted an Application for Catastrophic Impairment (OCF-19) form.
On January 9, 2014, Claimspro responded to the OCF-19 indicat[ing] that it required an independent medical opinion in order to determine whether the claimant sustained a catastrophic impairment as a result of the accident.
On June 30, 2014, Claimspro accepted that Ms. Barnes sustained a catastrophic impairment as a result of the accident.
On July 3, 2014, Claimspro wrote to Ms. Barnes in respect of the attendant care benefit. Claimspro provided further reasons why attendant care expenses submitted by Ms. Barnes for the period of her hospital stay were not payable. Claimspro thus continued to deny attendant care expenses for January and February 2012. Claimspro indicated that it would agree to pay for the period that Ms. Barnes was residing with her boyfriend (June 2012 to June 2013) at a rate of half of the Form 1 amount because Ms. McColeman was providing 12 hours of attendant care, less $24,000 previously paid between March and December 2012 at $3,000 per month. Claimspro further agreed to pay $6,000 per month for expenses claimed for the period between September 24, 2013 and February 1, 2014, although Ms. McColeman’s expenses claimed $3,000 per month. Claimspro made all payments in good faith although neither Ms. Barnes nor Ms. McColeman did submit details of services provided by Ms. McColeman. For the period after February 1, 2014, Claimspro relied on section 19(3)4 and section 33²⁰ and requested information about the quantum of economic loss sustained by Ms. McColeman as a result of having to provide attendant care services to Ms. Barnes. Claimspro reiterated the information it required to consider whether an expense has been incurred.
On July 10, 2014 Claimspro enclosed attendant care expense cheques in a letter to Ms. Barnes.
Claimspro inadvertently omitted to address attendant care expenses submitted for the period of June 24, 2013 to September 24, 2013 in its correspondence dated July 3, 2014. On August 28, 2014, Claimspro wrote to Ms. Barnes indicating that it would be providing her with a cheque in the amount of $18,000 for expenses in this period.
On September 22, 2014, Claimspro wrote to Ms. Barnes indicating that although Claimspro did not receive any expense forms or statements for any period after September 23, 2013, it had paid in good faith an attendant care benefit of $6,000 up to February 1, 2014. Claimspro further stated that it agreed in good faith to pay an additional $2,000 per month commencing February 1, 2014 until it receives the information requested in its letter of July 3, 2014.
Mr. Bird did not sustain economic loss as a result of providing attendant care services to Ms. Barnes.
The quantum of economic loss sustained by Ms. McColeman is not known to the MVAC Fund and the Applicant has declined to provide this information until the question of whether the February 1, 2014 amendment to the Schedule contained in section 19(3)4 applies to Ms. Barnes is decided.
The MVAC Fund has paid Ms. Barnes for attendant care expenses submitted by Ms. McColeman for the following time periods in the following amounts.

January 3, 2012 – February 25, 2012 (2 months) nil

February 26, 2012²¹ – mid June 2012 (4 months) paid at $6,000 per month

Mid-June 2012 – mid June 2013 (12 months) paid at $3,908.65 per month

Mid-June 2013 – February 1, 2014 (8 months) paid at $6,000 per month

February 1, 2014 onward paid at $2,000 per month

No expenses were submitted for services provided by Frazer Bird.

Attendant Care Benefits Claimed:

Ms. Barnes is seeking attendant care benefits for expenses submitted by Ms. McColeman, for three periods in dispute:²²

Two months during her hospitalization immediately after the accident during which no benefit was paid (the hospital period).
The one year she lived with her boyfriend, Mr. Bird, during which time half of the Form 1 amount was paid (the residence with Mr. Bird period from June 1, 2012 to May 31, 2013).
Whether the February 1, 2014 amendment to the Schedule applies to Ms. Barnes’ claim for attendant care benefits after January 31, 2014 (the post January 31, 2014 period).²³

Statutory Provisions regarding Attendant Care:

Under section 19 of the Schedule, attendant care benefits shall be paid for all reasonable and necessary expenses for services provided by an aide to an insured person as a result of an accident.

Under subsection 19(2) of the Schedule, the amount of the monthly attendant care benefit is determined in accordance with a document entitled “Assessment of Attendant Care Needs” (Form 1). Under subparagraph 19(3)(1)(i), the amount of the monthly attendant care benefit payable shall not exceed $3,000 per month, if the insured person did not sustain a catastrophic impairment. Under subparagraph 19(3)(1)(ii), the amount of the monthly attendant care benefit payable shall not exceed $6,000 per month, if the insured person sustained a catastrophic impairment.

Under the relevant part of paragraph 3(7)(e) of the Schedule, an expense is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates;

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided … the services,

(B) sustained an economic loss as a result of providing … the services to the insured person.

Is Ms. Barnes entitled to an Attendant Care Benefit for services provided by her mother, Ms. McColeman for the period between January 3, 2012 and February 25, 2012 when Ms. Barnes was an in-patient at Kingston General Hospital and West Park Rehabilitation Centre?

In order for Ms. Barnes to be entitled to an attendant care benefit for services provided by Ms. McColeman during this period, Ms. Barnes must prove on a balance of probabilities that these expenses were incurred as set out in paragraph 3(7)(e) of the Schedule. This includes proving that Ms. McColeman sustained an economic loss as a result of providing attendant care services.

Did Ms. McColeman sustain an economic loss as a result of providing attendant care services to Ms. Barnes for the period between January 3, 2012 and February 25, 2012?

Ms. Barnes and the MVAC Fund’s Submissions regarding Economic Loss during Hospital Stays:

Ms. Barnes produced a letter from Ms. McColeman’s employer, ANRIC Enterprises Inc. indicating that she had been on a paid leave of absence during which she used up her sick pay and vacation pay such that her last pay cheque was dated March 1, 2012. Ms. McColeman admitted that when she received vacation and sick pay before the accident, it amounted to the same amount as her normal pay.

Ms. Barnes argues that Ms. McColeman’s loss of vacation and sick pay constitutes economic loss. However, the MVAC Fund submits that until Ms. Barnes returns to work and takes her vacation and sick days which ultimately results in a monetary loss due to the lack of accumulated paid vacation or sick days, the economic loss does not materialize.

Ms. Barnes also argues that Ms. McColeman’s visitor expenses constitute Ms. McColeman’s economic loss during this time.

The MVAC Fund responds as follows: Ms. McColeman submitted her visitor expenses by way of a list; no original receipts were provided. Crawford paid for all of the gas, parking, and hotel expenses and reimbursed Ms. McColeman at a rate of $25 per day for the 33 days for which expenses were submitted. With respect to miscellaneous and food expenses that were not reimbursed, in a letter dated June 22, 2012, Crawford indicated that it could not tell without original receipts which expenses were reasonable and necessary and, accordingly, requested that Ms. McColeman submit original receipts for those expenses for consideration. The MVAC Fund submits that no original receipts were ever submitted to Crawford or to the MVAC Fund, although Ms. McColeman testified that she provided these receipts to Ms. Barnes’ lawyers.

The MVAC Fund states that it does not take the position that some visitor expenses that are not otherwise compensable under the Schedule cannot constitute economic loss.²⁴ They may. However, the MVAC Fund states that the non-reimbursed visitor expenses submitted by Ms. Barnes in this case do not constitute economic loss for purposes of satisfying that attendant care expenses were incurred for the following reasons.

Through her failure to submit original receipts as requested by Crawford, Ms. McColeman (or the Applicant’s lawyers) artificially created the semblance of economic loss where there should be none. The expenses do not themselves constitute economic loss because they are compensable under the Schedule if properly submitted. Rather, it is the failure to submit original receipts that created the economic loss.

The MVAC Fund further submits that there is no evidence that the non-reimbursed visitor expenses were made as a result of Ms. McColeman providing attendant care services to

Ms. Barnes. There are no original receipts to indicate what the expenses were. In fact,

Ms. McColeman testified that some of the miscellaneous expenses (for example February 13, 2012 Walmart expenses) were not visitor expenses but were rather medical/rehabilitation expenses consisting of pillows bought for Ms. Barnes.

In addition, Ms. McColeman did not testify that the expenses were made as a result of her providing attendant care to Ms. Barnes. The MVAC Fund relies on the appeal decision in Simser and Aviva Canada Inc.²⁵ which confirms the plain reading of the incurred subparagraph 3(7)(e) that the economic loss must be incurred as a result of providing the attendant care services.

Analysis and Conclusion regarding Economic Loss during Hospital Stays between January 3, 2012 and February 25, 2012:

Unless a service provider provides attendant care services in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, he or she must prove an economic loss was sustained as a result of providing these services to the insured person. Ms. Barnes’ mother, Ms. McColeman was not a professional service provider. Accordingly, Ms. Barnes must prove on a balance of probabilities that Ms. McColeman sustained an economic loss as a result of providing these services to her.

Director’s Delegate Blackman outlined in Simser²⁶ how the Ontario Court of Appeal in Henry v. Gore Mutual Insurance Company²⁷ addressed the issue of “economic loss.” The Court found, in part:

The 2010 Schedule does not define “economic loss” (paragraph 6). The Court of Appeal stated that if the amount of the monthly care benefit were to be calculated based on the quantum of the economic loss sustained by the caregiver, this comprehensive legislation could have so indicated (paragraph 25).
The Court was guided by its decision in Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, that insurance coverage provisions are to be interpreted broadly while coverage exclusions or restrictions are to be construed narrowly in favour of the insured. To the extent that the word “incurred” restricts coverage available to an insured, it must be assigned a narrow meaning (paragraph 21). Economic loss serves as a threshold for benefit entitlement. Economic loss is not a measure or factor in quantifying the amount of reasonable and necessary benefits to be paid by an insurer (paragraph 22).

The words “goods or services” in clause 3(7)(e)(iii)(B) should be broadly construed to refer to a number of kinds of goods and services, including the services provided by an aide or attendant (paragraph 23).

The Court of Appeal held that the 2010 Schedule intended to provide a check on payments to family caregivers (paragraph 26) and that the economic loss requirement was a rough check on attendant care costs (paragraph 35).

The Court of Appeal noted FSCO’s March 31, 2009 Report on the Five-Year Review of Automobile Insurance. FSCO rejected attendant care benefits being restricted to instances where family members could show that an economic loss had been incurred. It did so based on the increased complexity that would be added to the system and that the main issue was whether care was required. The Court noted that the 2010 Schedule, without official commentary, included economic loss as a prerequisite (paragraphs 31 to 33).

The Court of Appeal held that if an economic loss is sustained, attendant care benefits are payable with respect to all care detailed in the Form 1 Assessment of Attendant Care Needs that is provided by the family member, subject to the monetary maximums in subsection 19(3) and other safeguards in the legislation (paragraph 36).

In the case before it, the Court held that the unchallenged Form 1 established the need for 24 hour attendant care. As long as the care was provided and the family member who provided the attendant care sustained an economic loss in so doing, the amount payable was not restricted to the 40 hours of paid employment per week foregone by the family member (paragraph 44).

Where no economic loss is sustained, no attendant care benefits are payable in respect of the care provided by a family member even if the family member provided care that would otherwise be provided by someone in the course of their employment, occupation or profession that would require the insurer to pay attendant care benefits (paragraph 36).
The Court of Appeal declined to define “economic loss.” It declined to impose as a prerequisite a de mininis financial or monetary loss or other restriction. On the facts of the case before it, the Court found that economic loss was clear (paragraph 37).

In Simser,²⁸ the claimant suffered a significant injury for which he was airlifted to hospital. His ex-wife moved back into his home to provide care. She testified that she suffered an economic loss for the following reasons:

She had to give up her apartment as she could not pay her bills and assist with her ex-husband’s bills
She had to pay additional fuel costs
She missed time from work.

Arbitrator Lee called into question the service provider’s credibility and found an adverse inference based on the lack of documentary evidence produced to prove an economic loss.

Director’s Delegate Blackman upheld the Arbitrator’s finding in Simser that the claimant failed to prove on balance of probabilities that the service provider sustained an economic loss for the purposes of the claim for attendant care and housekeeping benefits.

As a result, I interpret economic loss as a financial loss.

There was no evidence of actual reduction in the amount Ms. McColeman received from her employer until March 1, 2012,²⁹ and thus no economic loss on that basis until after March 1, 2012.

I find the claim for Ms. McColeman’s unpaid visitor’s expenses to be too vague to substantiate the economic loss required by the Schedule.

Accordingly, I find, on a balance of probabilities that Ms. Barnes has failed to prove that Ms. McColeman sustained an economic loss as a result of providing attendant care to her during her hospital stays.

Analysis and Conclusion regarding Incurred Expenses during Ms. Barnes’ Hospital Stays between January 3, 2012 and February 25, 2012:

Both parties made extensive submissions regarding the attendant care Ms. Barnes received from Ms. McColeman during her hospital stays.

Given my conclusion set out above regarding Ms. Barnes’ failure to prove that Ms. McColeman sustained an economic loss during her daughter’s hospital stays, I do not need to decide to what extent the attendant care Ms. McColeman is claiming during this period was incurred. However, if I have erred in my conclusion regarding economic loss during this period, below are my comments regarding incurred expenses.

Both parties agreed that Ms. Barnes requires attendant care at the rate of $6,000 per month, which is the maximum amount for catastrophic cases.³⁰ Ms. McColeman signed a letter saying that she provided all the care in the Form 1s. Despite repeated requests from the MVAC Fund, no further breakdown of the services provided or the time spent were submitted.

I have no doubt that Ms. McColeman deeply loves and cares about her daughter. She did her utmost to ensure that Ms. Barnes received the best possible care; however, it is obvious that during Ms. Barnes’ hospital stays, significant portions of the attendant care would have been provided by the nursing staff and the hospitals.

This distinguishes this case from the Henry³¹ case because in Henry one person provided all the care for the expenses claimed for attendant care.

Ms. Barnes was mostly in the intensive care unit during her stay at KGH. Ms. McColeman testified that monitoring, feeding (through a tube except for four days), medication, grooming and hygiene (including bed baths), and wound care were provided by hospital staff. This is confirmed in the hospital records. There was monitoring equipment at KGH which alerted the staff to any emergency and Ms. McColeman’s evidence was that they responded to such an alert in her absence.

The Form 1 for this time period from January 3 to January 22, 2012 recommended various services including hygiene, skin care, grooming, bathing, feeding, providing medication and supplies, laundering, and assisting in an emergency (basic supervisory care). All of these services were provided by hospital staff and add up to $7,507.22. The balance on the Form 1 for this time period is $326.46 which accounts for dressing and undressing, mobility (transfers), orthotics, and exercise.³²

Ms. McColeman testified that for the 18 hours per day that she spent with Ms. Barnes, she provided emotional support to Ms. Barnes.

I agree with the MVAC Fund that emotional support is not necessarily a reasonable and necessary attendant care service under the Form 1 unless it is provided for safety reasons as specified on the Form 1.³³ The Form 1s in this case did not provide for any custodial care due to changes in behaviour under Basic Supervisory Care that would necessitate this kind of support for safety reasons. No evidence was led by a nurse, OT, or physician to suggest that this type of care was reasonable and necessary and for how long each day. Simply because Ms. McColeman was there for her daughter does not mean that it constitutes reasonable and necessary attendant care services under the Schedule.

Ms. Barnes was then transferred to West Park on January 25, 2012 for about another month until February 25, 2012. While she was at West Park, Ms. McColeman was with Ms. Barnes for about 16 hours per day. During this time, Ms. McColeman appears to have provided some of the Form 1 services, including feeding and making Ms. Barnes comfortable, as well as bathing, dressing/ undressing, changing the bedding, and administering medication supplied by the hospital. However, again, there was no indication that hospital monitoring was insufficient to permit the hospital staff to deal with Ms. Barnes in an emergency.

I distinguish Ms. Barnes’ case from that of Haimov and ING Insurance Company of Canada.³⁴ In that case, Arbitrator Murray ordered 24 hour per day attendant care while Mr. Haimov was in the hospital. She ordered it because a neurologist testified that it was likely that Mr. Haimov would suffer another seizure. As a result, the supervisory care that family members provided was crucial because they could alert the nursing staff immediately at the onset of the seizure. By doing so, Mr. Haimov could receive prompt treatment to decrease his discomfort and minimize the negative effect on his long-term health.

The Form 1 for this time period recommended $6,180.78 for responding in an emergency. As this service was available and being provided by hospital staff, any expenses related to this aspect of basic supervisory care is not payable by virtue of subsection 47(2).³⁵ The balance of the Form 1 for this time period is $1,652.90. The total amount for the services that Ms. McColeman testified she provided as outlined in the preceding paragraph amounts to $1,287.00.

Further, it appears that some services provided by Ms. McColeman were also available to be provided by hospital staff. Ms. McColeman testified that some of the services she provided, for example, helping Ms. Barnes attend physiotherapy sessions at West Park, could have been done by hospital staff but were done by her because she was there. In such a case, subsection 47(2) also precludes payment of any expense for services that could have been obtained though OHIP or other available MVAC Funding.

Therefore, it is not credible that Ms. McColeman provided all of the 24 hour per day attendant care during the hospital stays.³⁶ The MVAC Fund, while not specifically admitting that Ms. Barnes was entitled to any payment for Ms. McColeman’s attendant care services during this period³⁷ did submit, in the alternative, attendant care expenses submitted by Ms. McColeman during this time period may be payable at no more than $326.46 for the first month (at KGH) and $1,287.00 for the second month (at West Park). Accordingly, if I have erred in my determination regarding economic loss, I would find both of these amounts to be payable to Ms. Barnes for attendant care expenses submitted by Ms. McColeman.

Is Ms. Barnes entitled to payment of attendant care expenses submitted for the period between mid-June 2012 and mid-June 2013 while Ms. Barnes was living with her boyfriend, Mr. Bird, less amounts already paid?

Background:

Between mid-June 2012 and mid-June 2013, Ms. Barnes moved back in with her boyfriend, Frazer Bird. In a letter dated June 10, 2013, Ms. Barnes’ lawyers advised the MVAC Fund that she moved back with her mother on June 9, 2013. Ms. McColeman testified that the lease on the apartment rented to Ms. Barnes and her boyfriend was for one year from June 1, 2012 to May 31, 2013.

At arbitration, Ms. McColeman testified that Ms. Barnes moved back with her in mid-April 2013; however, I find the letter from Ms. Barnes’ lawyers more credible since it was sent contemporaneously with the event. In addition, Ms. McColeman’s testimony about the apartment lease is inconsistent with the mid-April date she mentioned, and also supports the proposition that Ms. Barnes moved back in with Ms. McColeman in mid-June 2013, and I so find.

Ms. Barnes submitted a Statutory Declaration indicating that both Mr. Bird and Ms. McColeman were providing attendant care services to her. Ms. Barnes confirmed at the arbitration that both of them were providing her with attendant care services.

Ms. Barnes advised the MVAC Fund that Ms. McColeman visited her daily and provided about 12 hours of attendant care to her per day. The balance of the care was provided by Mr. Bird who was at home for the rest of the time. However, at the arbitration, Ms. McColeman testified that she provided between 14 and 24 hours of care per day which varied from day to day, depending on Mr. Bird’s work, travelling, and the time spent with Ms. Barnes on the telephone. She did not keep track of the hours, and she could not now recall how often Mr. Bird would be late or absent. Neither Ms. Barnes nor Ms. McColeman could recall how often Ms. McColeman would be physically present with Ms. Barnes for 12 hours or for 24 hours. Ms. McColeman testified that she did not keep track of this information, was not told to keep track of this information (except receiving tracking sheets from MVAC’s adjusters) and did not think of keeping track.

Mr. Bird did not testify at the hearing.

The only attendant care expenses submitted by or on behalf of Ms. Barnes are expenses of Ms. McColeman. Ms. McColeman provided an OCF-6 form and a statement that indicated that she provided care to Ms. Barnes “as per the Form 1” between January 2, 2012³⁸ and August 13, 2012. While Ms. McColeman acknowledged that the Form 1 recommended 24 hour care, she refused to admit that the statement that she provided all Form 1 services was inaccurate.

Therefore, Ms. McColeman continued to claim to have provided 24 hour care while Ms. Barnes’ lived with her boyfriend, Mr. Bird.

Additional expenses were submitted for the period of August 15, 2012 to October 4, 2012 which were for services provided by Ms. McColeman “as per the Form 1”; as well as for October 5, 2012 to September 23, 2013 for the same services. Accordingly, Ms. McColeman claimed that she provided the same amount of services while Ms. Barnes was living with Mr. Bird and after Ms. Barnes moved back with her. Ms. McColeman testified that she was the only one who provided all of the Form 1 services which amounted to 24 hour care.

Ms. Barnes’ Submissions:

Ms. Barnes made the following submissions regarding her claim for additional attendant care expenses for the period from mid-June 2012 to mid-June 2013, while she resided with Mr. Bird:

As was held in Henry,³⁹ the requirement for economic loss is a threshold to entitlement only. It is not related to the calculation of the amount of the benefit that is payable.
If Ms. McColeman was unable to work because she had to care for her daughter for 12 hours during the day, she should get the maximum attendant care benefit, even if she was not providing any care at night (even though she sometimes did). The result is still the same: she was unable to work whether she was caring for her daughter for 12 or 24 hours per day.
There was never a claim made for any attendant care being provided by Mr. Bird, so Ms. Barnes is not asking the insurer to pay for the same expense twice.

The MVAC Fund’s Submissions:

The MVAC Fund made the following submissions regarding the issue of Ms. Barnes’ claim for additional attendant care expenses for the period from mid-June 2012 to mid-June 2013, while she resided with Mr. Bird:

The MVAC Fund does not dispute that Ms. McColeman sustained an economic loss during this time period because she continued to remain on an unpaid leave in order to provide attendant care services to Ms. Barnes.
There are two Form 1s for this time period, one completed by Lisa Duffus on behalf of Ms. Barnes in February 2012 in the monthly amount of $7,728.26 and the other completed by Lyndy Goldlust on behalf of the MVAC Fund in June 2012 in the monthly amount of $7,817.30. Both recommend 24 hour care. Lisa Duffus’ Form 1 recommends 9,113 weekly minutes (or 21.7 hours per day) for supervision, which at the Form 1 rate works out to $6,694.28. Lyndy Goldlust’s Form 1 recommends 8,832.5 weekly minutes (21 hours per day) for supervision which at the Form 1 rate works out to $6,488.21. The balance of the recommended minutes are for other services and work out to $1,033.98 and $1,329.09, respectively.
There is no indication that Ms. McColeman provided any non-supervisory services outside of the hours that she spent with Ms. Barnes. Therefore, three to 2.3 hours (24 hours minus 21 hours or 21.7 hours) of her day were spent performing non-supervisory services while she was with Ms. Barnes. The MVAC Fund does not dispute that Ms. McColeman provided those services.
Basic supervisory care was recommended on the basis that Ms. Barnes lacked the ability to get in and out of a wheelchair or to be self-sufficient in an emergency. Lyndy Goldlust’s report, which is more recent, indicates that Ms. Barnes required this assistance due to her decreased strength, endurance and mobility. As such, someone had to be present with Ms. Barnes to physically assist her in an emergency. The MVAC Fund submits that being available by telephone does not constitute such assistance. Further, it was Ms. Barnes’ and Ms. McColeman’s evidence that Ms. Barnes was not left alone. Anne Kerr, an adjuster for Claimspro also testified that she was advised on several occasions that Mr. Bird was providing attendant care services during the evening and would have been available to assist Ms. Barnes in the event of an emergency. Therefore, when Ms. McColeman was not present, Mr. Bird was there to provide assistance in an emergency. No evidence was provided by the Applicant to suggest that Mr. Bird was unable to provide such assistance if an emergency arose. As such, Ms. McColeman’s emotional support provided over the telephone did not constitute reasonable and necessary attendant care services under the Form 1.
Despite the MVAC Fund’s requests, Ms. McColeman did not keep track of how long she spent each day providing basic supervisory care or how long she spent with Ms. Barnes during the time she would be providing basic supervisory care in the form of being physically present to assist Ms. Barnes in an emergency. Her evidence was that she slept at home most of the nights, so 24 hour care would have rarely been provided. Beyond this, there is little to suggest on what basis to calculate the amount of services provided. This difficulty is caused entirely by Ms. Barnes and Ms. McColeman as a result of failing to accede to the MVAC Fund’s request to keep track of the time spent providing attendant care services. Ms. McColeman’s evidence is that she provided between 14 and 24 hours of attendant care per day. Ms. Barnes also claims an attendant care benefit for her telephone conversations with Ms. McColeman. As noted above, these are for emotional support and not proper services under the Form 1.
The MVAC Fund paid Ms. Barnes a monthly amount of $3,908.65. This amount was based on half of the Form 1 amount ($7,817.30) assessed by the insurer’s assessor (which is higher than the Form 1 amount prepared by Ms. Barnes’ assessor). The reduction was based on the letter sent on behalf of Ms. Barnes which indicated that Ms. McColeman provided about 12 hours of attendant care services per day and that the balance was provided by Ms. Barnes’ boyfriend after he returned home from work.

Analysis and Conclusion regarding payment of attendant care expenses submitted for the period between mid-June 2012 and mid-June 2013 while Ms. Barnes was living with her boyfriend, Mr. Frazer Bird, less amounts already paid:

Ms. Barnes submits that pursuant to Henry,⁴⁰ economic loss is a threshold issue and is not related to the amount of the benefit payable. The MVAC Fund agrees that economic loss is a threshold issue; however, the parties disagree on what the threshold means.

Ms. Barnes submits that the threshold is to entitlement to the Form 1 amount. She maintains that as long as Ms. McColeman was providing some of the attendant care, then the full Form 1 amount is payable. In addition, Ms. Barnes submits that if Ms. McColeman was unable to work because she had to take care of her daughter for 12 hours during the day, she should get the maximum attendant care benefit, even if she was not providing any care at night.

The MVAC Fund submits that there is no support in the Schedule or the case law for Ms. Barnes’ position. Further, the MVAC Fund states that if Ms. Barnes’ argument is accepted, it would mean that in any given month, if Ms. McColeman provided one hour of attendant care (for instance, at the highest rate of $19.25 for a total expense of $19.25) and no one else provided the remaining care (or someone was providing the care but did not meet the “incurred” requirements, like Mr. Bird), Ms. Barnes would still be entitled to a benefit in the amount of the Form 1, in this case $6,000 per month. In the MVAC Fund’s view, this interpretation could not have been intended.

The MVAC Fund states that the threshold is to the particular expense being considered. In other words, as long as Ms. McColeman sustained an economic loss as a result of providing attendant care claimed under a given monthly expense, then that requirement of “incurred” expense is satisfied, and if the other requirements (actual provision of services and an obligation or promise to pay the expense) are satisfied, the expense is payable.

The MVAC Fund points out that subsection 19(1) of the Schedule states that the “attendant care benefits shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.” The benefit pays for expenses for the services of an aide or attendant. It does not pay for:

Ms. Barnes’ attendant care needs;
Ms. Barnes’ other needs.

It pays for incurred expenses for attendant care services.

Subparagraph 3(7)(e) of the Schedule provides specific requirements for when an expense is “incurred.” In Ms. Barnes’ case, the expense is incurred when:

(1) She receives the services to which the expense relates;

(2) She pays or promises to pay or is otherwise obligated to pay the expense; and

(3) The service provider sustains an economic loss as a result of providing services to which the expense relates.

The sections make it clear that the benefit is meant to pay for incurred expenses and not for needs.

In Toronto Transit Commission Insurance Company Limited and the Estate of Reuben Marcus, by its Executor, Amy Marcus,⁴¹ the Director’s Delegate quoted the 2009 Five Year Review report on auto insurance (which made recommendations for the 2010 amendments to the Schedule) at page 9. The quoted section indicates that the authors acknowledge that the attendant care benefit operates on a principle of indemnity. On that basis, it was recommended that the attendant care benefit pay for incurred expenses, which the current Schedule does. The report and the adoption of its recommendation that the benefit pay for incurred expenses demonstrates the legislative intent that the benefit operate on a principle of indemnity.

Ms. Barnes submits that she should be paid the full Form 1 amount even when some of the expenses are not “incurred” expenses as defined under subsection 19(1) of the Schedule. For example, she is claiming payment for services even if she did not receive them from Ms. McColeman.

The MVAC Fund submits that payment for services not in accordance with subsection 19(1) of the Schedule results in Ms. Barnes being able to use the attendant care the MVAC Fund pays for something other than attendant care services. In the MVAC Fund’s opinion, such a payment results in a windfall and violates the principle of indemnity, because a windfall in the case of attendant care benefits means spending the MVAC Funds on something other than attendant care services.

Both the Henry⁴² and Marcus⁴³ cases dealt with situations where the claimants actually received all Form 1 services from a service provider who met the other requirements stipulated in subsection 19(1) of the Schedule. The issue of whether the full Form 1 is payable even though not all Form 1 services were being provided was not before either the Court of Appeal or the Director’s Delegate in those cases.

Ms. Barnes relies on Sicoe and Jevco Insurance Company⁴⁴ to submit that payment of the Form 1 amount would not amount to a windfall. The issues in that case were again very different. As in Henry⁴⁵ and Marcus,⁴⁶ the question of whether all Form 1 services were being provided to the Applicant was not in dispute. Rather, the issue was what rate should be applied to the hours of services that were provided to Mr. Sicoe. In addition, Sicoe was decided under the 1996 Schedule which does not contain the “incurred” expense provision legislated in 2010. Accordingly, the decision in Sicoe cannot be relied upon when incurred expenses are in dispute, as they are here.

The attendant care benefit under the 2010 Schedule pays for incurred expenses for attendant care services, not for needs. The needs, as calculated pursuant to a Form 1, provide a pre-approved monetary limit up to which the incurred expenses will be paid. Ms. Barnes must prove on a balance of probabilities that she incurred expenses for attendant care services as defined in subsection 19(1) of the Schedule in order to be entitled to the benefit. Part of the requirement of an “incurred” expense is that Ms. Barnes must have received the attendant care services from either a professional service provider or one who sustained an economic loss under paragraph 3(7)(3) of the Schedule.

I find that Ms. Barnes has not met this onus regarding the basic supervisory care she received during the 6:00 p.m. to 6:00 a.m. time period while she lived with Mr. Bird.⁴⁷ Despite substantial evidence to the contrary, Ms. McColeman continued to insist that she provided all attendant care to Ms. Barnes during Ms. Barnes’ residence with Mr. Bird.⁴⁸ This is not credible, and reduces the weight I give to Ms. McColeman’s testimony.

Ms. McColeman also testified that she was available by telephone while Mr. Bird was there; however, realistically, in an emergency, Mr. Bird, who was with Ms. Barnes would have assisted Ms. Barnes.⁴⁹ Accordingly, I find that Ms. Barnes is not entitled to any further attendant care benefit for the period from mid-June 2012 to mid-June 2013, while she resided with her boyfriend, Mr. Bird.

What is the Amount Payable for Ms. Barnes’ Attendant Care Benefit after January 31, 2014?

Legislative Framework and Background:

The parties have expressed this issue as it applies to this case in the following way:

Does the amendment in paragraph 19(3)4 of the Schedule that came into effect on February 1, 2014 apply to motor vehicle accidents before February 1, 2014 but after September 1, 2010, so that Ms. Barnes’ claim for attendant care expenses for services provided by her mother is limited by the economic loss sustained by her mother? ⁵⁰

The MVAC Fund concedes that the section does not apply retroactively to attendant care services provided before February 1, 2014. The issue is whether this Schedule amendment applies retrospectively to limit attendant care benefits for services provided on or after February 1, 2014, for accidents that occurred between September 1, 2010 and January 31, 2014.

A new Schedule regime came into effect on September 1, 2010.⁵¹ Under subparagraph 3(7)(e)(iii) of this Schedule, an expense for services, including attendant care services, is not incurred unless the person who provided the services did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or unless the person sustained an economic loss as a result of providing the goods or services to the insured person.

In Henry,⁵² the Ontario Court of Appeal interpreted the phrase “economic loss” used in subparagraph 3(7)(e)(iii) of the Schedule.⁵³ In that case, Tyrone Henry, a minor, was rendered a paraplegic in a motor vehicle accident. His mother took an unpaid leave of absence from work to provide the full-time care he needed. There was no dispute that the mother sustained an economic loss and provided full time care. The insurer argued that under subparagraph 3(7)(e)(iii) the benefit should be limited to the mother’s economic loss. In July 2013, the Court of Appeal affirmed that “economic loss” is a threshold requirement. That meant that if the service provider sustained an economic loss as a result of providing attendant care, the applicant was entitled to incurred expenses based on the Form 1.

In December 2013, the government filed Ontario Regulation 347/13 (O. Reg. 347/13) which amended the Schedule in several respects. One of the amendments was the addition of subparagraph 19(3)4. Under this new subsection, if attendant care is provided by a non-professional such as a family member or friend, the benefit amount cannot be more than the amount of the service provider’s economic loss that results from providing the attendant care.

O. Reg. 347/13 came into force on February 1, 2014. It did not contain any transitional provisions. In particular, it did not add a section stating that the amendments only apply to accidents occurring on or after February 1, 2014; nor did it add a section stating that the amendments apply to accidents on or after September 1, 2010.

The Ontario Government Regulatory Registry includes the following Summary of Decision regarding the passage of O. Reg. 347/13:

Amendments to Ontario Regulation 34/10 (Statutory Accident Benefits Schedule – Effective September 1, 2010) have been approved. The amendments will help reduce costs and uncertainty in the system by continuing to crack down on abuse and fraud, and clarifying benefits for auto insurance claimants.

Ms. Barnes’ Submissions:

Ms. Barnes submits that she has a vested right as of the date of the accident to entitlement to an attendant care benefit, provided that the attendant care service provider had some economic loss. The amendments that came into effect as of February 1, 2014 do not specifically provide that the legislature intended to take away rights that had vested by that point. In the absence of any such clear statement, there is a presumption that it did not intend to do so. Ms. Barnes submits that the MVAC Fund has not adequately rebutted this presumption. In these circumstances, the amount of Ms. McColeman’s economic loss is not relevant.

The MVAC Fund’s Submissions:

Subsection 268(1) of the Insurance Act provides that auto insurance contracts are deemed to provide the benefits set out in the Schedule as amended:

268(1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. 1993, c. 10, s. 26 (1)

Through this wording the legislature provides that when a policy is issued, the benefits provided under the policy are not crystalized at that time, but instead they can be amended from time to time.

The MVAC Fund submits that if the government had intended for the amendments in O. Reg. 347/13 to apply only to accidents occurring after the amendment came into force on February 1, 2014, the government would have included express wording to that effect.

In GAN Canada Insurance Company and Lehman,⁵⁴ Director’s Delegate Draper addressed the issue of whether an amendment to the Schedule, in the absence of transition provisions, applies prospectively in respect of a past accident. The Director’s Delegate assessed whether an amendment to the Bill 164 Schedule,⁵⁵ in effect between January 1, 1994 and October 31, 1996, applied to an accident that occurred in January 1994.

The specific issue was whether Mr. Lehman was entitled, in 1996, to continued income replacement benefits (IRBs) pending the resolution of a dispute as to his entitlement to Loss of Earning Capacity Benefits (LECBs). The Schedule provided for a transition from IRBs to LECBs at 104 weeks after the accident. Prior to the 1995 amendment, if there were a dispute as to the quantum of LECBs at the transition time, the insurer was required to continue paying IRBs pending resolution of the dispute. For purposes of the arbitration hearing, the applicant and insurer agreed that under the 1995 amendment, insurers were not required to pay interim IRBs pending the dispute.

Mr. Lehman argued that his entitlement to IRBs pending resolution of the LECB dispute was a vested right arising at the time of his accident. The Director’s Delegate rejected Mr. Lehman’s position, and found instead that the amendment applied. The Director’s Delegate found that while an amendment cannot affect past transactions, there was no vested right with regard to ongoing and future events.

The MVAC Fund submits that Ms. Barnes does not have a vested right to attendant care benefits because this benefit requires an ongoing impairment, establishing a need, receiving services, and the incurring of an expense.

In addition, the MVAC Fund submits that Ms. Barnes would not have acquired a vested right to attendant care benefits based on the Ontario Court of Appeal decision in Beattie v. National Frontier Insurance Company.⁵⁶ In that case, Mr. Beattie entered into an insurance contract in May 1996 for a one year term. The Schedule underwent a wholesale change effective November 1, 1996. On November 21, 1996 Mr. Beattie was injured in an accident. He argued that when he purchased his contract from National Frontier he acquired vested rights to benefits in accordance with the Schedule in effect at the time of his contract, and that those substantive vested rights could not be taken away by the November 1, 1996 amendments. The court rejected Mr. Beattie’s argument because it held that the Schedule in effect at the time of the accident was the applicable version.

The MVAC Fund also submits that if Ms. Barnes had a vested right, the right is displaced because the legislature intended it.

Analysis and Conclusions regarding the Amount Payable for Ms. Barnes’ Attendant Care Benefit after January 31, 2014:

Temporal Interpretation of Legislation:

In Davis, by her Litigation Guardian Lush v. Wawanesa Mutual Insurance Company,⁵⁷ Quinlan J. discussed how in R. v. Dineley,⁵⁸ the Supreme Court of Canada identified a number of rules of interpretation that can be helpful in determining whether legislation is to have a prospective or retrospective effect:

(i) Cases in which legislation has retrospective effect must be exceptional;

(ii) Where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable;

(iii) New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively;

(iv) New procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights and is presumed to apply immediately to both pending and future cases;

(v) The key task in determining the issue lies not in labelling the provision “procedural” or “substantive”, but in discerning whether they affect substantive rights; and

(vi) The fact that new legislation has an effect on the content or existence of a right is an indication that substantive rights are affected.

Does O. Reg. 347/13 interfere with Vested or Substantive Rights in this Case?

O. Reg. 347/13 changed the entitlement to an attendant care benefit by limiting the amount of the benefit to the amount of the economic loss of a non-professional service provider. The MVAC Fund accepts that this Regulation affects Ms. Barnes’ substantive rights and is an amendment to a substantive (rather than procedural) provision of the Schedule.⁵⁹

The MVAC Fund has based its defence of this aspect of Ms. Barnes’ claim around the concept of vested rights. It argues that Ms. Barnes did not have a vested right to the pre-February 1, 2014 attendant care benefit.

I find that according to the rules for the temporal interpretation of legislation set out in R. v. Dineley,⁶⁰ it is not necessary for Ms. Barnes to prove that her right to an attendant care benefit was a vested right. She merely has to prove that it is a substantive right. I find that the MVAC Fund has conceded this point.

The MVAC Fund claims that in Dineley,⁶¹ a “substantive right” was equated with a “vested right.” I respectfully disagree. In Dineley,⁶² the Supreme Court of Canada refers to “either vested or substantive rights.” By formulating the sentence this way, the Court is specifically not equating these rights. (my underlining)

The MVAC Fund also asks me to distinguish between a “substantive right” and a “substantive provision.” There is a difference between a right and a provision. Individual and group rights can arise out of a statutory provision. However, I find that the MVAC Fund is pointing out a distinction that does not make a difference in this case. I find that Ms. Barnes’ right to claim an attendant care benefit is a substantive (as opposed to a procedural) right and that the provision in O. Reg. 347/13 that limits the attendant care benefit to the economic loss incurred by a non-professional service provider interferes with her substantive right.

Given this finding, it is not necessary for me to decide whether Ms. Barnes has a vested right to an attendant care benefit determined on a pre-O. Reg. 374/13 basis; however, in case I have erred in this determination, I find that Ms. Barnes acquired a vested right to have her future attendant care benefits determined under the wording of subsection 19(3) of the Schedule as it existed prior to the amendment to the Regulation. My reasons follow.

In Dikranian v. Quebec (Attorney General),⁶³ the Supreme Court of Canada discussed the concept of vested rights. In that case, a person who had a student loan finished his studies, and upon the expiration of the exemption period began repaying the principal and paying the interest on the loan. However, as a result of statutory amendments that came into force afterwards, he was charged interest on his loan that, under the terms of the original loan, was supposed to have been paid by the government. The Supreme Court of Canada held that the person with the student loan had a vested right that was not affected by subsequent legislation.

Bastarache, J. speaking on behalf of the majority stated that:

Vested rights result from the crystallization of a party’s rights and obligations and the possibility of enforcing them in the future.”

He also accepted the analytical framework of Professor Côté⁶⁴ who maintains that an individual must meet two criteria to have a vested right:

(1) The individual’s legal (juridical) situation must be tangible and concrete rather than general and abstract; and

(2) This legal situation must have been sufficiently constituted at the time of the new statute’s commencement.

He also agrees with Professor Côté that the mere possibility of availing oneself of a specific statute is not a basis for arguing that a vested right exists. In addition, he states that the right must be vested in a specific individual. The situation must also have materialized.

Bastarache J. asks the question: when does a right become sufficiently concrete? He answers it by stating that this will vary depending on the juridical situation in question. He gives the following examples of a right becoming sufficiently concrete:

The hopes and expectations of a person’s heirs become rights the instant the person dies.
A tort instantly gives rise to the right to compensation.
Rights and obligations resulting from a contract are usually created at the same time as the contract itself.

I agree with the MVAC Fund that Ms. Barnes did not have a contractual relationship with it. However, she was involved in an accident on January 3, 2012 (prior to the coming into force of O. Reg. 347/13 on February 1, 2014). This accident gave rise to a right to compensation for statutory accident benefits, regardless of whether she was in a contractual relationship with an insurer.

The MVAC Fund submits that Ms. Barnes’ right to a pre-O. Reg. 347/13 attendant care benefit had not vested because it arises out of ongoing facts, some that occurred in the past (the accident and injuries) and some that occur in the future (ongoing impairment, need for attendant care, the provision of services, and the incurring of expenses).

If I extrapolate the MVAC Fund’s argument, Ms. Barnes needs, for example, to continue to be alive to receive an attendant care benefit. This could apply to any continuing benefit such as interest. This interpretation would mean that no continuing benefit could ever be vested and would directly conflict with the Director’s Delegate Blackman’s interpretation of vested in Federico and State Farm Mutual Automobile Insurance Company.⁶⁵ In Federico, the issue was whether the 1% interest provision in the new Schedule (O. Reg. 34/10), effective September 1, 2010, applied to overdue benefits in respect of an accident that occurred prior to September 1, 2010. In this case, the Director’s Delegate stated:

The Respondent, certainly as of August 31, 2010, had tangible, concrete, vested and materialized rights to interest at 2% per month, compounded monthly.

In addition, the Ontario Superior Court in Davis,⁶⁶ recently accepted the parties’ agreement that an accident benefits claim crystallizes or vests on the date of the accident.

Davis⁶⁷ has a similar fact situation to this case. Ms. Davis was catastrophically injured in an accident on November 15, 2013. On January 31, 2014, an occupational therapist completed an Assessment of Attendant Care Needs (Form 1) and concluded that Ms. Davis would require 24 hour care. Upon her return home from the hospital, Ms. Davis chose to have her attendant care provided by her daughter-in-law rather than professional service providers. Her daughter-in-law took a leave of absence from her job as a financial analyst to provide care to Ms. Davis.

The Court held that O. Reg. 347/13, which came into force on February 1, 2014 did not apply, where the motor vehicle accident was before the provision came into force, and even where the claim for attendant care services was made after the provision came into force.

The Court found that O. Reg. 347/13 interfered with substantive rights. Since the presumption against retrospectivity was not rebutted, the presumption applied.

The MVAC Fund argues that rather than following Federico⁶⁸and Davis,⁶⁹ I should follow the line of reasoning in Lehman⁷⁰ and Beattie,⁷¹ which say that the legislature can change its policies from time to time under section 268 of Insurance Act; however, I note that the wording of section 268 is very general and that in both of those cases the accidents occurred after the effective date of the amended Regulation.⁷² Whereas, in Ms. Barnes’ case, the accident occurred before O. Reg. 347/13 came into effect, (or was even proposed).

In addition, I prefer the findings in the Federico⁷³ decision since it was recently upheld on appeal to the Divisional Court and follows more closely the law as articulated by the Supreme Court of Canada in 2005 in Dikranian,⁷⁴ and Professor Sullivan in Sullivan on the Construction of Statutes.⁷⁵

The MVAC Fund also referred to Francis and Dominion of Canada General Insurance Company.⁷⁶ In this case, Arbitrator Feldman (as he then was) found that an amendment to the Schedule prevented Anthony Francis, a minor, from receiving a Loss of Earning Capacity Benefit because all the conditions to claim lost educational expenses required under subsection 20(1) of the Schedule had not been met at the time of the amendment.

This ruling was upheld on appeal. In the appeal decision, Director’s Delegate Evans specifically found Federico⁷⁷ was distinguishable in that Mr. Francis’ rights had not crystallized as of the date of the amendment to the Regulation and that the new provision⁷⁸ in Mr. Francis’ case did not interfere with vested rights.⁷⁹ I also find Francis⁸⁰ distinguishable from Ms. Barnes’ case because I have found that her rights had crystallized and vested as of the date of the amendment to the Regulation.

The question of vested rights and economic loss in connection with the September 1, 2010 amendments to the Schedule has been considered in two other cases at the Commission. In Rajbhai and State Farm Mutual Automobile Insurance Company,⁸¹ Arbitrator Mutch ruled that the rights of the applicant in that case only vested on September 25, 2010, three weeks after the 2010 Schedule came into force. The applicant was therefore subject to the requirements of the 2010 Schedule and had to prove the economic loss of his attendant care service provider.

In E.B. and Security National Insurance Co./Monnex Insurance Mgmt. Inc.,⁸² the accident took place on December 9, 2010, more than three months after the 2010 Schedule came into force. Since this applicant was not able to prove any economic loss, Arbitrator Mutch found that

she was not entitled to payment of an attendant care benefit.

In both Rajbhai⁸³ and E.B.⁸⁴, Arbitrator Mutch found that the rights of the applicants vested on the date of the accident, and that the effective date of these amendments to the 2010 Schedule preceded these accidents.

Based on the foregoing analysis, I find that as of January 31, 2014, (the day before O. Reg. 374/13 came into force), Ms. Barnes had tangible, concrete, vested and materialized rights to an attendant care benefit, provided the other requirements of section 19 were met.

Is the Presumption against Retrospective Effect Rebutted?

In Dikranian,⁸⁵ the Supreme Court of Canada looked at whether subsequent legislation could unilaterally alter the terms of a contract between the appellant and a financial institution for repayment of student loans. The Supreme Court found that it could not, reversing two lower court rulings. The Supreme Court also observed that the principle against interference with vested rights has long been accepted in Canadian law.

According to Dineley,⁸⁶ new legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively.

Professor Sullivan in Sullivan on the Construction of Statutes states that it is presumed that the legislature does not intend legislation to be applied in circumstances where its application would interfere with vested rights.⁸⁷ She also states that new legislation applies to facts in progress or to an ongoing legal situation, provided the application does not interfere with vested rights or the legislature has adequately indicated an intention to interfere with the rights in question.⁸⁸

Professor Sullivan explains why the presumption against interfering with vested rights is justified as follows:

25.138 The primary justification for the presumption against interfering with vested rights is explained by Duff J. in Upper Canada College v. Smith:⁸⁹

…speaking generally it would not only be widely inconvenient but “a flagrant violation of natural justice” to deprive people of rights acquired by transactions perfectly valid and regular according to the law at the time.

To deprive individuals of interests or expectations that have economic value is akin to expropriation without compensation, which has never been favoured by the common law.⁹⁰

The presumption against interference with vested rights is codified in various provincial and federal statutes. In Ontario the Legislation Act, 2006,⁹¹ subsection 51(1) provides:

51(1) The repeal of an Act or the revocation of a regulation does not,

(b) affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation.

There are no transitional provisions for the rule changes that occurred in Ms. Barnes’ case and O. Reg. 347/13 is silent on the issue of whether it applies to claims arising from accidents before February 1, 2014. Therefore, I do not discern a clear legislative intent here. As indicated in Davis,⁹² if the need for immediate reform of the law were so pressing, why would the legislature not have explicitly made the law retrospective? Accordingly, I find that the presumption that new legislation that affects substantive rights will be presumed to have only prospective effect has not been rebutted here, and that Ms. Barnes has a substantive right to payment of the attendant care benefit to which she was entitled prior to the effective date of O. Reg. 347/13.

Therefore, I find that Ms. Barnes’ entitlement after January 31, 2014 to an attendant care benefit, for services provided by Ms. McColeman is not limited by the economic loss sustained by Ms. McColeman.

Is Ms. Barnes entitled to Interest on Overdue Amounts of Attendant Care Benefits?

Due to my earlier findings, Ms. Barnes may claim entitlement to interest on her attendant care benefits as follows:

Interest on all overdue attendant care benefits made after the catastrophic impairment designation on June 30, 2014 for the time period prior to the catastrophic impairment designation. The MVAC Fund submits that the total payment that it made after the catastrophic impairment designation for the period prior to the designation (including top-up on previous payments made based on non-catastrophic limits) is $76,903.80 of which $58,903.80 was paid in July 2014 and $18,000 was paid in August 2014 for various time periods.⁹³
Interest on Ms. Barnes’ entitlement after January 31, 2014 to overdue attendant care benefits for services provided by Ms. McColeman, not limited by the economic loss sustained by Ms. McColeman, and less amounts already paid.

Statutory Framework:

Section 51 of the Schedule provides as follows regarding interest on overdue payment of benefits:

51(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue until it is paid, at the rate of 1 per cent per month, compounded monthly.

Ms. Barnes’ Submissions:

Ms. Barnes submits as follows:

Shortly after the accident, Ms. Barnes submitted Form 1s to Crawford. All of these reports indicated that Ms. Barnes required attendant care in excess of the $6,000 catastrophic limit.⁹⁴
If there is a proper Form 1 in place and Ms. Barnes has been determined to be catastrophically impaired, the attendant care that is payable extends retroactively to the effective date of the Form 1.
The attendant care benefits are thus overdue within the language of the Schedule and interest is payable on outstanding attendant care.

MVAC’s Submissions:

The MVAC Fund submits as follows:

No interest is payable on any attendant care amounts at all due to Ms. Barnes’s failure to provide information required to determine whether expenses were incurred and are payable.
No interest is payable on any attendant care amounts paid after the catastrophic impairment designation for the period prior to the designation and, in any event, prior to two years after the accident.

Analysis and Conclusions regarding Interest:

Is Interest on attendant care benefits payable prior to the receipt of requested information?

The MVAC Fund made numerous requests for information pertaining to the time periods while Ms. Barnes was in hospital and while she was living with her boyfriend. Ms. Barnes was not forthcoming with much of the information that the MVAC Fund requested. I also note that conflicting information was provided to the MVAC Fund about Ms. Barnes’ service providers during these time periods.

In any event, I have found that Ms. Barnes is not entitled to any additional attendant care benefits prior to mid-June 2013. Accordingly, no payment for an attendant care benefit is overdue prior to mid-June 2013, and it follows that no interest is payable for this time period.

Based on the oral and written evidence, I find that Ms. Barnes moved back in with her mother, Ms. McColeman in mid-June 2013. I find that after mid-June 2013, Ms. McColeman was Ms. Barnes’ sole service provider and provided the services set out in the Form 1.

The MVAC Fund submits that no interest should be payable for any period prior to Ms. Barnes submitting information in respect of each expense because subsection 19(1) pays for incurred expenses. In other words, no amount would be due or overdue, before information about any given incurred expense is received by the insurer for any given time period.

Subsection 33(1) of the Schedule provides that an applicant shall, within 10 business days after receiving a request form the insurer, provide the insurer with the following:

Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

Once Ms. Barnes moved back with her mother, there was no suggestion that anyone other than Ms. McColeman was providing attendant care services to her daughter. There was also no suggestion that Ms. McColeman was not providing all the attendant care services outlined in the Form 1.

Although Ms. Barnes and her mother, Ms. McColeman, could have provided more particulars, I find that the MVAC Fund had sufficient information regarding the services Ms. McColeman provided to pay attendant care benefits after Ms. Barnes moved back with her mother on June 1, 2013. Therefore, I find that further particulars after mid-June 2013 is not a valid reason for the insurer to avoid paying interest on overdue amounts of attendant care benefits for this time period.

In addition, Ms. Barnes was successful on the issue of her claim for attendant care benefits for services provided by her mother after January 31, 2014, not being limited by the economic loss sustained by her mother. As a result, I find that the information the MVAC Fund requested from Ms. Barnes regarding her mother’s economic loss after January 1, 2014 was not reasonably required, in addition to the information that it already had in its possession.

Is interest payable on attendant care benefits not paid until after the catastrophic impairment determination?

The MVAC Fund also submits that it was statutorily prevented by the language of subsections 3(2)5 and 18(3) of the Schedule from paying in accordance with catastrophic limits before a catastrophic impairment designation was applied for, or made, or before the Applicant became entitled to apply two years after the accident. As a result, it submits that no interest should be payable in respect of the period prior to the determination of catastrophic impairment because the amounts over the non-catastrophic limits were not due or overdue prior to the determination.

Subsection 18(3) of the Schedule provides that the sum of the medical and rehabilitation benefits paid to the insured shall not exceed $50,000 if the person has not sustained a catastrophic impairment.⁹⁵

Ms. Barnes’ $36,000 non-catastrophic attendant care limit was exhausted as of December 3, 2013.

Prior to the 2010 Schedule, benefits applied for and expenses incurred between the time the non-catastrophic limits were exhausted and a positive determination of a catastrophic impairment was received, were not payable due to a hole in the legislation.⁹⁶ This hole was filled by subsection 45(6) of the 2010 Schedule which states:

If an insured person is determined to have sustained a catastrophic impairment as a result of an accident, the insured person is entitled to payment of all expenses incurred before the date of the determination and to which the insured person would otherwise be entitled to payment under this Regulation by virtue of having sustained a catastrophic impairment.

The MVAC Fund submits that this means that there is no entitlement to incurred expenses above the non-catastrophic limits prior to a positive determination of catastrophic impairment and, as such, no payments can be “overdue” prior to the determination.⁹⁷

I respectfully do not agree with this submission. If, as the Regulation states, “the insured person is entitled to payment of all expenses incurred before the date of the determination” it follows, therefore, that these expenses now become overdue. The Regulation also states “the insurer shall pay interest on the overdue amount … for each day the amount is overdue.” Accordingly, Ms. Barnes is entitled to interest on the overdue amounts of attendant care to which she is now entitled.

In the case of Ms. M.G.,⁹⁸ several Form 1 assessments were submitted to the insurer. The second one was retroactive. The Arbitrator found that before the insurer’s receipt of the second (retroactive) Form 1, the insured was not entitled to payment of benefits for the retroactive time period to which that particular Form 1 applied. This finding was based on subsection 42(5) of the Schedule which stated that “an insurer may, but is not required to, pay an expense incurred before an assessment of attendant care needs that complies with this section is submitted to the insurer.”

On appeal,⁹⁹ Director’s Delegate Evans found that the section did not require that the Form 1 (the retroactive Form 1) be submitted to the insurer before expenses under it became payable. He noted that there was already a Form 1 in place at the time, (albeit not for the time period in dispute) such that the section did not apply.

Director’s Delegate Evans also considered the difference between the timing of entitlement and the timing of payment. He found that subsection 42(5) spoke of timing of payment rather than timing of entitlement. The effect is that the insurer can delay payment until it receives a Form 1, but lack of a Form 1 does not determine entitlement, which the insurer will have to re-consider once it receives the Form 1. In doing so, Director’s Delegate Evans quoted with approval Arbitrator Bayefsky in T.N. and Personal Insurance Company of Canada.¹⁰⁰ Regarding subsection 39(3),¹⁰¹ Arbitrator Bayefsky wrote:

It states that an insurer is not required to pay attendant care benefits before a Form 1 is submitted. This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose.

Although the above comments regarding subsection 42(5) of the Schedule deal with a somewhat different fact situation, I find that the principle enunciated regarding attendant care benefits is applicable to the issue of interest in this case. In other words, the statutory provisions regarding applying for a catastrophic benefit speak more to the timing of payment of interest rather than entitlement to interest. I find that significantly stronger statutory language would be required to suspend Ms. Barnes’ right to claim interest on her attendant care benefits after mid-June 2013.¹⁰²

Conclusion regarding whether Ms. Barnes is entitled to Interest on Overdue Amounts of Attendant Care Benefits:

I do not condone Ms. Barnes’ refusal to provide more detailed information to assist the MVAC Fund in adjusting the file. It could even be said that some of the information that was provided was inaccurate and misleading.¹⁰³

However, since Ms. Barnes was successful in this arbitration on the issue of whether the February 1, 2014 amendment to the Schedule applied to her, I find that the MVAC Fund’s request for information about Ms. McColeman’s economic loss after February 1, 2014 was not information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

In addition, as discussed above, I am not persuaded that the statutory and other delays connected with the finding that Ms. Barnes is catastrophically impaired permit the MVAC Fund to withhold interest for unpaid, and therefore overdue amounts of attendant care benefits.

For the reasons set out above, I order the MVAC Fund to pay interest on Ms. Barnes’ attendant care benefits outstanding from mid-June 2013 onward on any overdue amounts in accordance with the Schedule.

Is Ms. Barnes entitled to a Special Award?

Subsection 282(10) of the Insurance Act provides for a special award. It is dependent on the reasonableness of the conduct of the insurer and states as follows:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

In Plowright and Wellington Insurance Company¹⁰⁴ the meaning of the phrase “has unreasonably withheld or delayed payments” is described as behaviour of the insurer that is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

In Johnston and AXA Insurance (Canada),¹⁰⁵ Arbitrator Bujold followed earlier decisions to clearly articulate the process of determining a special award. The first three of the steps are as follows:

Determine the benefits owing to the insured person, including interest calculated under the applicable version of the Schedule;
Decide whether the insurer unreasonably withheld or delayed the payment of these benefits. If so, the insurer will be ordered to pay a lump sum amount in addition to the benefits and interest calculated in #1;
If the insurer did not act unreasonably in respect of all the benefits owing under #1, determine the amount of the benefits that were unreasonably withheld or delayed, and the interest payable on these benefits under the applicable version of the Schedule.

Ms. Barnes was successful in two areas in this case:

Ms. Barnes’ entitlement after January 31, 2014 to attendant care expenses for services provided by Ms. McColeman is not limited to the economic loss sustained by Ms. McColeman.
Ms. Barnes is entitled to interest on overdue amounts of her attendant care benefit from mid‑June 2013 onward in accordance with the Schedule.

The Parties’ Submissions regarding Special Award:

Ms. Barnes characterized the way the MVAC’s Fund exercised its discretion as arbitrary, and that it was clear that Ms. Barnes had a vested right to attendant care prior to the February 14, 2014 amendment to the Schedule. In addition, there was no indication that the legislature intended to interfere with that right.

For the period between mid-June 2013 and January 31, 2014, the MVAC Fund submits that its conduct does not reflect the conduct described in Plowright. The MVAC Fund also submits that it considered all benefits claimed, made reasoned decisions, considered all evidence in its possession at the time it made its decisions, reconsidered entitlement after Ms. Barnes was deemed to have sustained a catastrophic impairment, and was generally flexible, paying benefits in circumstances where it did not have sufficient information to determine entitlement to payment. Instead of completely denying benefits when there was a refusal to provide the necessary information, the MVAC Fund states that it made do with what it had and paid the amount based on the information it had at the time.

For the period after January 31, 2014, the MVAC Fund took the position that because of the amendment to the Regulation, the amount of the attendant care benefit was limited to the amount of economic loss sustained by the service provider as a result of providing the services.

Did the MVAC Fund unreasonably withhold or delay payments to Ms. Barnes?

Was the MVAC Fund unreasonable in requesting information on the basis of which to calculate Ms. McColeman’s economic loss (starting February 1, 2014)?

A new Schedule regime came into effect on September 1, 2010. It applied to accidents that occurred on or after September 1, 2010.

O. Reg. 347/13 came into force on February 1, 2014. It did not add any transition provisions to the Schedule. In particular, it did not add a section stating that the amendments apply to accidents on or after September 1, 2010 nor did it provide that the amendments only apply to accidents occurring after February 1, 2014. As of February 1, 2014, paragraph 19(3)4 of the Schedule, became part of Regulation 34/10.

The MVAC Fund then requested information about Ms. McColeman’s economic loss in the form of her income tax returns and employment file. The request was based on the interpretation that the amendment applied to ongoing benefits claimed after January 31, 2014, although the accident occurred between September 1, 2010 and February 1, 2014.

Ms. Barnes refused to provide the requested information to calculate Ms. McColeman’s economic loss after the request was made. Despite this refusal, the MVAC Fund agreed to pay the benefit up to $2,000 per month in the anticipation that Ms. McColeman’s economic loss was at, near, or above that amount, although it had no information to make a more precise estimate.

This part of the case raised complex issues of statutory interpretation when legislation is changed without transitional provisions. Multiple outcomes were possible. As a result, I find that Ms. Barnes’ attendant care benefits after January 31, 2014 were not unreasonably withheld or delayed.

Did the MVAC Fund unreasonably withhold or delay payments of interest on overdue amounts of attendant care benefits to Ms. Barnes, once she was determined to have sustained a catastrophic impairment?

On June 30, 2014, the MVAC Fund had accepted that Ms. Barnes had sustained a catastrophic impairment. As of that date, the limit on her attendant care benefit increased and the MVAC Fund went back and reviewed entitlement for benefits claimed in the past that exceeded the $36,000 limit. I find that it did so for most of the benefits on or about July 3, 2014.

However, it did not pay interest on the attendant care benefits that it topped up to the catastrophic limit. The MVAC Fund states that it did not do so because it raised arguments as to whether these benefits were overdue.

Although I decided in Ms. Barnes’ favour on the issue of interest outstanding on overdue attendant care benefits (up to the catastrophic limit), I find that the MVAC Fund’s arguments raised genuine issues, and therefore that these interest payments were not unreasonably withheld or delayed.

Conclusion regarding Special Award:

I find that overall, the MVAC Fund has not unreasonably withheld or delayed payments, since its conduct does not meet the Plowright¹⁰⁶ requirements that behaviour of the insurer be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” Accordingly, Ms. Barnes’ claim for a special award is dismissed.

EXPENSES:

If the parties cannot agree on the entitlement to or amount of the expenses of the proceeding, either party may request, in writing, an appointment before an adjudicator to determine expenses in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition — January 2014) within 60 days of the date of the decision.

November 22, 2016

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2016 ONFSCDRS 314

FSCO A13-005372

BETWEEN:

ANNE BARNES Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS MVAC FUND Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

Ms. Barnes is not entitled to payment of attendant care expenses submitted for the period between January 3, 2012 and February 25, 2012 while she was an in-patient at Kingston General Hospital and West Park Rehabilitation Centre.
Ms. Barnes is not entitled to payment of attendant care expenses submitted for the period between mid-June 2012 and mid-June 2013, while she was living with her boyfriend, less amounts paid.
Ms. Barnes’ entitlement after January 31, 2014 to attendant care expenses for services provided by Ms. McColeman is not limited by the economic loss sustained by Ms. McColeman.
Ms. Barnes is entitled to interest on overdue amounts of her attendant care benefit from mid-June 2013 onward on any overdue amounts in accordance with the Schedule.
Ms. Barnes’ claim for a special award is dismissed.

November 22, 2016

Anne Sone Arbitrator

Date

Footnotes

The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
I find that the evidence indicates that Ms. Barnes was at West Park Rehabilitation Centre until February 25, 2012 (rather than February 21, 2012 as set out in the list of issues in the pre-hearing letter).
On February 26, 2012.
Blood in the chest cavity.
Trauma to the lungs.
Shoulder blade.
Pelvic.
Spinal.
Crawford & Company.
Assessments of Attendant Care Needs.
Occupational Therapist.
Some dates amended from Agreed Statement of Facts and Timeline.
I found this sentence of the Agreed Statement of Facts and Timeline was not admissible and excluded it.
By Lindy Goldlust, Occupational Therapist.
per month.
Ms. Barnes’ accident occurred on January 3, 2012.
Claimspro sent correspondence.
Although this statement is in the Agreed Facts and Timeline, Ms. McColeman attempted to refute it during her testimony at the hearing.
tracking of the attendant care services provided.
of the Schedule.
Date amended.
It is not disputed that Ms. McColeman has not returned to work since the accident.
The parties have advised that once this legal issue is determined, the parties will resolve the issue of quantum between themselves. If they are not able to do this, they will request a resumption of the arbitration.
Although if questioned on the substance of what constitutes “economic loss”, the MVAC Fund submits that it should be “a valid (not artificially created) monetary loss that is more than trivial and that is necessitated by provision of the services in question.” The MVAC Fund submits that a de minimis requirement may be necessary if certain facts arise, such as a claim that $1.00 of non-compensable expenses constitutes economic loss for purposes of payment of an attendant care expense of $6,000 per month.
(FSCO P13-00004, January 9, 2014).
Ibid.
2012 ONSC 3687, [2012] O.J. No. 2928 (S.C.J.); affirmed 2013 ONCA 480; [2013] O.J. No. 3792 (C.A.).
Supra at footnote 25.
Ms. Barnes did not dispute this at the arbitration.
The Form 1s obtained by both parties exceeded $6,000 per month.
Supra at footnote 27.
Prepared by Lisa Duffus, O.T. for the Applicant.
Ms. M.G. and Economical Mutual Automobile Insurance Company (FSCO A09-002443, November 23, 2012); affirmed on appeal (Appeal P13-00001, July 21, 2014). In M.G., custodial care was recommended under Basic Supervisory Care of Form 1 for “emotional support”. At page 29, the arbitrator stated: “While assuring a person’s emotional well-being and providing emotional support are helpful for rehabilitative purposes, I do not agree that they are appropriate uses of the type of attendant care services intended under the Basic Supervisory Care category in Form 1.”
(FSCO A05-002734, May 9, 2007).
Subsection 47(2) of the Schedule permits a deduction for collateral benefits. It states as follows: Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
As was claimed on Ms. Barnes’ OCF-6s.
For example, because there was no economic loss, some services were not compensable because they are not reasonable and necessary under a Form 1, and/or there was incomplete evidence of insufficient services by hospital staff.
Ms. Barnes’ accident occurred on January 3, 2012.
Supra at footnote 27.
Supra at footnote 27.
(FSCO P14-00005, September 19, 2014).
Supra at footnote 27.
Supra at footnote 41.
(FSCO A08-001173, March 13, 2012).
Supra at footnote 27.
Supra at footnote 41.
I have found that this period is from mid-June 2012 to mid-June 2013.
And also during Ms. Barnes’ hospital stays.
Ms. Barnes did not submit any expense claim indicating that an attendant care benefit was being claimed for Mr. Bird’s services.
The full text of this issue is set out as Issue 3 on page 2 above.
Section 19 pertaining to attendant care benefits is described above on page 12.
Supra at footnote 27.
This interpretation is described above on pages 15 to 17.
(FSCO P97-00064, August 10, 1998) reversing (OIC A96-001417, October 27, 1997). An application for judicial review was dismissed in [2000] O.J. No. 4902 (Div. Ct.).
O. Reg. 776/93.
2003 CanLII 2715 (ON CA), [2003] O.J. No. 4258.
2015 ONSC 6624.
[2012] 3 S.C.R. 272, [2012] S.C.J No. 58, 2012 SCC 58.
As was decided in Davis, supra at footnote 57.
Supra at footnote 58.
Ibid.
Ibid.
2005 SCC 73, 2005 S.C.C. 73, [2005] S.C.J. No. 75.
Côté, Pierre-Andre. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000 at pages 160-61.
(FSCO A08-001138, March 23, 2012); upheld on appeal (FSCO P12-00022, March 25, 2013); application for judicial review dismissed (2014), 236 A.C.W.S. (3d) 202; 2014 ONSC 109 (Div. Ct.).
Supra at footnote 57.
Ibid.
Supra at footnote 65.
Supra at footnote 57.
Supra at footnote 54.
Supra at footnote 56.
In Lehman, the accident occurred on January 29, 1994, and the amended Regulation specifically states that it refers to accidents between January 1, 1994 and October 31, 1996. In Beattie, the accident occurred on November 21, 1996, and the change to the Regulation was effective November 1, 1996.
Supra at footnote 65.
Supra at footnote 63.
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. Markham Ont.: LexisNexis Canada Inc. (2014).
(FSCO A10-003775, March 18, 2014).
Supra at 65.
Section 20.1.
(FSCO P14-00013, August 31, 2015).
Supra at 76.
(FSCO A13-003578, October 27, 2014).
(FSCO A12-005316, January 16, 2015).
Supra at footnote 81.
Supra at footnote 82.
Supra at footnote 63.
Supra at footnote 58.
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. Markham Ont.: LexisNexis Canada Inc. 2014 at page 761, paragraph 25.25.
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. Markham Ont: LexisNexis Canada Inc. 2014 at page 802, paragraph 25.105.
(1920), 1920 CanLII 8 (SCC), 61 S.C.R. 413.
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. Markham Ont: LexisNexis Canada Inc. 2014 at page 817, paragraph 25.138.
S.O. 2006, c.21, Schedule F.
Supra at footnote 57.
The Applicant’s representative advised on the second day of the arbitration that the Applicant does not intend to claim interest on the first three months of attendant care paid by Echelon (because it was already paid by Claimspro for the months of March, April, and May 2012).
The details of the amounts and time periods of these Form 1s are set out at paragraph 8 of the Agreed Statement of Facts, above.
18(3) The sum of the medical and rehabilitation benefits paid in respect of an insured person who is not subject to the financial limit in subsection (1) shall not exceed, for any one accident, (a) $50,000; or (b) if the insured person sustained a catastrophic impairment as a result of the accident, $1,000,000.
Lee (by her Guardian of Property, Wai Ching Lee) and State Farm Mutual Automobile Insurance Company (FSCO A03-000181, February 3, 2006) at page 27.
The MVAC Fund accepted that Ms. Barnes was catastrophically impaired on June 30, 2014.
Supra at footnote 33.
(FSCO P13-00001, July 21, 2014).
(FSCO A06-000399, July 26, 2012).
Subsection 39(3) contained the identical language to the current subsection 42(5) of the Schedule.
The date when Ms. Barnes moved back in with Ms. McColeman.
For example, as set out in paragraphs 28 and 35 of the Agreed Statement of Facts.
(OIC A-003985, October 29, 1993).
(FSCO A04-002670, October 23, 2008).
Supra at footnote 104.