Safety, Licensing Appeals and Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o^ 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: March 23, 2017

File: 16-001181/AABS

Case Name: 16-001181 v. Wawanesa Mutual Insurance Company

Written Submissions By:

For the applicant: Élaine Lachaîne, Burn Tucker Lachaîne LLP

For the respondent: James Brown, McCague Borlack LLP

1On January 30, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued a final decision in this matter, denying the applicant’s entitlement to rehabilitation benefits. The applicant’s claim related to expenses incurred during a trip to Florida with his daughter’s family. The Tribunal held that these expenses were not rehabilitation benefits within the meaning of s. 16 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and, thus, were not payable.

2On February 16, 2017, the applicant requested a reconsideration of the Tribunal’s decision. For the reasons that follow, I deny the applicant’s request.

The Facts

3In October 2010, the applicant was injured in a motor vehicle accident. In December 2012, the respondent determined that the applicant’s impairment as a result of the accident was catastrophic. At all relevant times, the applicant required 24-hour care and resided in a long-term care facility.

4Before the accident, the applicant hoped to travel to Disney World with his daughter and grandchildren. After the accident, the applicant viewed the trip as a long-term rehabilitation goal. Eventually, the trip was booked for September 26 to October 3, 2015.

5Before travelling, the applicant requested funding in connection with the trip. Specifically, the applicant sent the respondent a Treatment and Assessment Plan, along with a related request for travel expenses, dated September 3, 2015. The requested funding, $2,019.59, was not intended to cover his personal travel expenses, but rather the expenses of his rehabilitation aide, who would accompany him on the trip. These included the aide’s airfare, accommodation, mileage, and meal plan.

6He also submitted a second Treatment and Assessment Plan, along with a related request for funding, dated September 9, 2015. This request, for $1,779.58, was intended to cover his personal expenses during the trip. In particular, they related to the use of a wheelchair and wheelchair accessible van, as well as adaptive equipment and supplies for his personal care.

7By letter dated September 24, 2015, the respondent informed the applicant that it would not pay for any of the requested expenses.

8The applicant travelled to Disney World as scheduled. His daughter, son-in-law, and two grandchildren were on the trip. So was his rehabilitation aide. The trip involved an additional $890.64 in expenses beyond the amounts estimated in the two Treatment and Assessment Plans. After the trip, the applicant added this additional amount to his request for coverage.

9In December 2015, the respondent confirmed that it would not pay any of the requested expenses. The applicant then applied to the Tribunal.

The Issue

10The issue at the hearing was whether the $4,689.81 in requested expenses are rehabilitation benefits within the meaning of s. 16 of the Schedule. The Tribunal held that they were not. I note that, while the case conference order and the Tribunal’s decision framed the additional $890.64 as a disputed medical benefit, the parties argued the case solely based on s. 16.

11The applicant makes this request for reconsideration under Rule 18.2(b), asserting that the Tribunal’s interpretation of s. 16 involved “a significant error of law such that the Tribunal would likely have reached a different decision.” His counsel offers no further analysis or supporting argument. Instead, I am simply urged to discover the error.

12Such an approach is unhelpful. Good advocacy, if not professional duty, calls parties relying on Rule 18.2(b) to articulate the Tribunal’s error, along with how that error, if corrected, would have resulted in the Tribunal reaching a different decision. I should not be required to divine a party’s best possible arguments. Those should accompany, and attempt to justify, the request for reconsideration. The Tribunal, parties, and opposing representatives deserve their benefit.

13Nevertheless, I have reviewed the Tribunal’s decision and have considered its interpretation of s. 16 as applied to the facts. Although I do not agree entirely with the Tribunal’s analysis, I am satisfied that a proper interpretation of s. 16 leads to the same result.

Analysis and Reasoning

14In his original submissions to the Tribunal, the applicant argued that the expenses at issue are rehabilitation benefits within the meaning of s. 16 of the Schedule given that they were incurred to facilitate his reintegration into his family. In this vein, the applicant focuses narrowly on selective parts of s. 16(1), ignoring the rest of the provision. The applicable version of s. 16 reads, in relevant part, as follows:

Rehabilitation benefits

16. (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

(3) The activities and measures referred to in subsection (1) are,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person;

(i) home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home;

(j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle;

(k) transportation for the insured person to and from counselling and training sessions, including transportation for an aide or attendant; and

(l) other goods and services that the insured person requires, except,

(i) services provided by a case manager;

(ii) housekeeping and caregiver services, and

(iii) any goods or services for which a benefit is otherwise provided in this Regulation.

15The applicant is correct that, based on the wording of ss. 16(1), rehabilitation benefits may be claimed for expenses incurred to facilitate one’s reintegration into his or her family. However, ss. 16(1) also makes clear that such a claim is subject to two important conditions. First, the expenses at issue must have been “reasonable and necessary” for the individual’s reintegration into his or her family. Second, and more importantly in this case, the expenses must have been incurred “in undertaking activities and measures described in subsection (3).” That is to say, rehabilitation benefits are not payable for any expenses incurred that were reasonable and necessary for the individual’s reintegration into his or her family. Rather, the eligible expenses must have been incurred in connection with one of the activities or measures enumerated in s. 16(3).

16In this case, the only activity or measure enumerated in s. 16(3) that might apply is (l): “other goods and services that the insured person requires.” Does this broad wording capture the expenses at issue? In my opinion, they do not.

17As the Supreme Court of Canada has repeatedly affirmed, those tasked with interpreting legislation must determine its meaning by reading its words “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”¹ This “modern approach” to statutory interpretation has also been expressed as determining the meaning of legislation by examining “its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids.”²

18The text of ss. 16(3)(l) – “other goods and services that the insured person requires” – is, taken alone, broad enough to encompass the expenses at issue, assuming the applicant required them. However, “the grammatical and ordinary sense of a section is not determinative and does not constitute the end of the inquiry” – one must consider the provision’s “total context.”³

19The Tribunal conducted this further contextual analysis when it noted that ss. 16(3)(l) is not a “catch all” for any and all additional expenses, which, instead, must “fit within the scope of the activities and measures described in subsection 3.” In effect, the Tribunal applied the ejusdem generis or “limited class rule” of statutory construction. This rule provides that general words following a list of specific items should be interpreted as being limited to the same class to which the specific items belong.⁴ In this case, the Tribunal defined that class as things that “must be provided for by a professional and require a treatment goal or be a modification or device that accommodates the need of the uninsured person.”

20I would articulate the point differently. The common feature shared by the specific items listed in ss. 16(3) is that they are all aimed at restoring an injured person’s ability to enjoy his or her basic or day-to-day familial, social, and vocational life. Put another way, they are intended to assist the injured person’s rehabilitation. Subsection 16(3)(l) must, therefore, be interpreted as serving this same purpose.

21This same purposive approach is evident in the Divisional Court’s decision in B.(G.) v. Pilot Insurance Co. (2008), 2008 CanLII 2602 (ON SCDC), 89 O.R. (3d) 228. In that case, the Court considered the ambit of ss. 16(3)(l)’s predecessor, s. 15(5)(l) in the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996.⁵ The Court determined that that section is “a provision embedded in a section entirely devoted to the rehabilitation of the injured party” and, ultimately, that “its existence demonstrates the Legislature’s intention that rehabilitation expenses be construed as broadly as the needs of the claimant for rehabilitation require”: see paras. 33 and 36.

22In this case, the applicant’s trip did not serve a rehabilitative purpose.

23Before the accident, the applicant wanted to travel to Disney World with his family. He also identified the trip as a long-term rehabilitative goal. However, while the trip was something that he may have wanted to enjoy as a result of his rehabilitation, it was not actually part of his rehabilitation.

24His request for funding of September 2, 2015 explains the purpose of the trip as follows:

[h]is family have decided to proceed with the vacation for fear that [the applicant] will continue to experience cognitive and physical decline to the TBI associated dementia.

25A similar explanation was provided in his request for funding of September 10, 2015:

Participation in this vacation is important to [the applicant] to support leisure, quality of life, and involvement in valued family roles of father and grandfather. The family has decided to book the trip now as he is in a period of relative stability and his overall functional abilities appear to be declining over time.

26These descriptions make clear that the trip’s purpose was not to help rehabilitate or restore the applicant’s family relationships, but rather – and perhaps much more importantly – allow the applicant to enjoy those relationships before his condition worsened. That imperative was completely understandable and highly sympathetic. Unfortunately, however, it is not one that is captured by a purposive reading of s. ss. 16(3)(l) of the Schedule. Accordingly, the expenses incurred in relation to the trip are not properly considered rehabilitation benefits.

Decision

27Based on the above, I therefore deny the applicant’s request for reconsideration.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para. 21.
2. 265302 British Columbia Ltd. v. Canada, 1999 CanLII 639 (SCC), [1999] 3 SCR 804 at para. 5.
3. 3ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4 at para. 48.
4. 4See R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Ontario: LexisNexis, 2008) at pp. 231-243.
5. 5O. Reg. 403/94.