P.G. v. Echelon General Insurance Company, 2018 CanLII 13151

P.G. v. Echelon General Insurance Company

Date: 2018-02-23 Tribunal File Number: 16-003153/AABS Case Name: 16-003153 v Echelon General Insurance Compay

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

P.G.

Applicant

and

Echelon General Insurance Compay

Respondent

DECISION on PRELIMINARY ISSUES

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: John Lundrigan, counsel Alessia Petricone-Westwood, counsel

For the Respondent: Jamie R. Pollack, counsel

HEARD: In writing on September 6, 2017

I. OVERVIEW

1The applicant suffered catastrophic injuries in a motorcycle accident on March 17, 2010 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (O. Reg. 403/96) (the "1996 Schedule"). The applicant disagreed with the respondent's decision to deny certain benefits, including attendant care and housekeeping benefits, and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

2The parties disagree on which statutory accident benefit regulation governs the applicant's claims for determining entitlement to and the amount payable for housekeeping and attendant care benefits. The attendant care services claimed by the applicant have been provided by her spouse, whose employment and profession prior to the accident had nothing to do with providing attendant care or housekeeping. The respondent submits that the applicant is required to show that her spouse sustained an economic loss in providing his services in accordance with Ontario Regulation 34/10, Statutory Accident Benefits Schedule — Effective September 1, 2010, ("SABS-2010"). The respondent also submits that the amount of attendant care payable is determined by the amount of economic loss sustained by the applicant's spouse as required under the SABS-2010.

3The applicant submits that because the accident took place before the SABS-2010 came into force, the determination of entitlement to and the amount payable for attendant care and housekeeping benefits must be made under the 1996 Schedule, not the SABS-2010.

II. ISSUES:

4According to the case conference Adjudicator's Order and the submissions of the parties¹, the preliminary issues that I am to determine are as follows:

a. Does the definition of "incurred expense" in the SABS-2010 apply to the applicant's claim for housekeeping and attendant care benefits? ²

b. If so, do the revisions to the SABS-2010 requiring a family member providing services to the applicant to establish an economic loss apply the applicant's claims for housekeeping and attendant care benefits?³

c. If so, do the revisions to the SABS-2010 limiting the amount of attendant care and housekeeping benefits for services provided by family members to their economic loss apply to the applicant's claims for benefits incurred before February 1, 2014?

5Although some submissions were made about whether attendant care benefits and housekeeping benefits were incurred and whether the applicant's spouse sustained an income loss, I was not asked to determine how much attendant care the applicant is entitled to. I am only required to determine whether the definition of "incurred expense" in the SABS-2010 applies to the applicant's claims and whether the February 1, 2014 amendments to the SABS-2010 apply to limit the amount of attendant care payable to the economic loss sustained by the applicant's husband. To do this, I must determine whether the 1996 Schedule or the SABS-2010 applies to the applicant's claims for entitlement to attendant care and housekeeping benefits.

III. RESULT

6I find that the applicant's entitlement to and the amount payable to the applicant for attendant care and housekeeping benefits is determined under the 1996 Schedule. I find that neither the definition of "incurred expense" in s.3(7)(e) of the SABS-2010 nor the determination of quantum in ss.19(3)4 and 5 of the SABS-2010 apply to the applicant's claims.

IV. ANALYSIS

7There are presently four different statutory accident benefits Schedules in force. Those Schedules apply to accidents that have occurred during the following dates:

Name

Date in Force

Accident Date

Abbreviated name

Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672

June 21, 1990 to date

on June 21, 1990 to December 31, 1993 under s.4

OMPP SABS

Statutory Accident Benefits Schedule - Accidents After December 31, 1993 and Before November 1, 1996, O. Reg. 776/93

January 1, 1994 to date

on January 1, 1994 to October 31, 1996 under s.88(1)

Bill 164

Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O. Reg. 403/96

November 1, 1996 to date

on November 1, 1996 to August 31, 2010 under s.3(1.1)

1996 Schedule

Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10

September 1, 2010 to date

on or after September 1, 2010 under s.2(1)

SABS-2010

8All four of the Schedules have undergone various amendments over the years, but none of the Schedules have been revoked. The entitlement to benefits and the procedures for claiming and paying accident benefits for accidents that occurred between June 21, 1990 and December 31, 1993 are still governed by the OMPP SABS and for accidents that occurred between January 1, 1994 and October 31, 1996, by Bill 164. Although the 1996 Schedule is still in force, the procedure for claiming and paying benefits for accidents that occurred between November 1, 1996 and August 31, 2010 is from the SABS-2010.⁴ Benefits for accidents that occurred between November 1, 1996 and August 31, 2010 are paid under the SABS-2010.⁵ However, entitlement to the benefit and the amount of the benefit payable is still determined according to the 1996 Schedule.⁶

9Because the applicant's accident happened before September 1, 2010, the SABS-2010 does not apply for determining the applicant's entitlement to benefits. Both the 1996 Schedule and the SABS-2010 require an insurer to pay for the reasonable and necessary housekeeping and home maintenance expenses⁷ and expenses of an aide or a long term care facility that are "incurred." One of the differences between the 1996 Schedule and the SABS-2010 is that the SABS-2010 provides a definition for "incurred expense"⁸ that is absent from the 1996 Schedule. Under 3(7)(e) of the SABS-2010, an expense is "incurred" if the insured person paid the expense, promised to pay the expense or is otherwise legally obligated to pay the expense. In addition, the person who provided the service must have done 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 must have sustained an economic loss as a result of providing the goods or services.

10On February 1, 2014, an amendment was made to the SABS-2010 that essentially limits the amount payable for attendant care to the economic loss sustained by the care provider, unless the provider's occupation or profession is providing attendant care.⁹

11The respondent submits that the definition of incurred expense in the SABS-2010 applies to the applicant's claims for attendant care and housekeeping benefits. The respondent also submits that the applicant's claim for attendant care is limited to the amount of economic loss her husband has sustained in providing the attendant care in accordance with the February 1, 2014 amendment to the SABS-2010. The respondent relies on the reasoning in an appeal decision from the Financial Service Commission ("FSCO"), MVAC and Barnes¹⁰ for support in its submission. I am not bound by the FSCO decisions and do not find that the reasoning in Barnes assists the respondent for the following reasons.

12In Barnes, the applicant was involved in an accident in 2012 and, accordingly, Ms. Barnes' accident benefit claims were governed by the SABS-2010, unlike the case before me where the accident occurred on March 17, 2010 and is, therefore governed by the 1996 Schedule. Ms. Barnes received attendant care services from her mother. The issue was whether the amount of attendant care benefits Ms. Barnes sought after February 1, 2014 were limited to the economic loss sustained by her mother in providing attendant care. The FSCO appeal decision held that Ms. Barnes' claims after February 1, 2014 were limited to the economic loss sustained by her mother in accordance with the February 1, 2014 amendment to the SABS-2010.

13The respondent relies on the comments of the Director's Delegate in Barnes about s. 268(1) of the Insurance Act. It states that 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.

14The Director's Delegate in Barnes stated that s.268(1) of the Act first displaces the concept of a motor vehicle liability policy as a private agreement between an insurer and its insured. Second, it makes the Schedule a part of every policy. Third, it makes all amendments to the Schedule a part of every policy, including all terms, conditions, provisions, exclusions and limits. He further indicated that when viewed in that context, without the terms in each regulation that state the applicability of accidents between specific dates, s.268(1) of the Act creates the assumption that amendments apply to all existing policies and, by extension, to all existing claims. The respondent submits that this means that the reference to the "Schedule" in s.268 of the Insurance Act means that the current SABS-2010 and the amendments made to it apply to all claims regardless of when the accident occurred.

15I do not agree with the respondent that the Director's Delegate in Barnes meant for s.268(1) of the Act to apply in this manner. I find the respondent's interpretation of Barnes ignores the fact that that there are four Schedules presently in force at this time. The respondent's interpretation also ignores the definition of "Statutory Accident Benefits Schedule" in s.224(1) of the Insurance Act, which means the regulations made under paragraphs 9 and 10 of s.121(1) of the Insurance Act. The use of the plural term "regulations" in s.224(1), plus the fact that neither the OMPP SABS, Bill 164 or the Schedule-1996 have been revoked or repealed means that the term "Schedule" in s.268(1) of the Insurance Act applies to all the Schedules.

16Section 268 of the Act makes the automobile policies or contracts and the amendments to the Schedule subject to the conditions and terms of that Schedule. This means that the sections of each particular Schedule that indicate it applies to accidents that occur during a specific period of time determine which Schedule applies for determining entitlement to benefits. In Barnes, there was no issue that the SABS-2010 applied because the accident took place in 2012 and s.2(1) of the SABS-2010 clearly states it applies to accidents that occur on or after September 1, 2010.

17The Barnes case is distinguishable on the basis that the Barnes accident occurred in 2012, whereas this accident occurred in March 2010, well before the SABS-2010 came into force. According to s.3(1.1) of the 1996 Schedule and s.2(2)2(i) of the SABS-2010, entitlement to and the amount of accident benefits payable for accidents that occurred on or after November 1, 1996 and before September 1, 2010, are determined under the 1996 Schedule. The SABS-2010 and the 1996 Schedule both set out the particular sections of the SABS-2010 that apply to accidents that occur after November 1, 1996 and before September 1, 2010 as follows:

• Subsections 25 (1), (3), (4) and (5), which deal with payment for the cost of examination;

• Part VIII, which deals with the procedures for claiming benefits:

• Part IX, which deals with the payment of benefits, but not ss. 50 (2) to (5), which deal with the issue of benefit statements;

• Part X, which deals with an insured person's responsibility to obtain treatment, participate in rehabilitation and seek employment;

• Part XI, which deals with the interaction of the regulations with other systems; and

• Part XII, which deals with miscellaneous matters such as the assignment of benefits, delivery of notices, forms and substitute decision makers.

18It is clear from a review of those sections that neither the SABS-2010 or the 1996 Schedule state that entitlement to and the amount of attendant care benefits payable set out in s.19 the SABS-2010 apply to accidents that occurred before September 1, 2010. Nor do they state that the definitions in s.3 of the SABS-2010 apply to accidents that occurred before September 1, 2010. The 1996 Schedule has no definition of incurred. If the Legislature intended for the definition of incurred in s.3 and for s.19(3)4 and 5 of the SABS-2010 to apply to accidents that occurred before September 1, 2010, the 1996 Schedule regulations would have been amended to state that. Since the Legislature did not make those amendments to the 1996 Schedule, the definition of incurred expense in the SABS-2010 and the amendments to the SABS-2010 do not apply to the applicant's claims.

19The respondent also relies on the Court of Appeal case of Beattie v. National Frontier Insurance Co. In that case, one of the issues was whether the 1996 Schedule applied to Mr. Beattie's November 1996 accident or whether Bill 164 applied because it was in force when Mr. Beattie entered into his contract for insurance. The respondent submits that the Court of Appeal in Beattie held that even a new version of the Schedule applies to the insured person, by virtue of section 268(1) of the Insurance Act. I find that Beattie does not assist the respondent because the Court of Appeal held that the Schedule that was in force at the time of the accident applies. When this principle is applied to the applicant's case, the 1996 Schedule applies for determining the applicant's entitlement to benefits and the amount of the benefits payable.

20Because there is no requirement in either the 1996 Schedule or the SABS-2010 that the amount of attendant care benefits payable in s.19(3)4 or s.19(3)5 of the SABS-2010 apply to the applicant's March 2010 accident, the amendments adding those sections effective February 1, 2014 do not apply to the applicant's claims for attendant care benefits for services provided either before February 1, 2014 or after.

V. DECISION AND ORDER

21I find that the applicant's entitlement to and the amount payable to the applicant for attendant care and housekeeping benefits is determined under the 1996 Schedule. Neither the definition of "incurred expense" in s.3(7)(e) of the SABS-2010 nor the determination of quantum in ss.19(3)4 and 5 of the SABS-2010 apply to the applicant's claims. The amendment to the SABS-2010 made by s.9 of O. Reg. 251/15 and s.2 of O. Reg. 347/13 that limit the amount of attendant care payable to the economic loss sustained by the attendant care provider does not apply to the applicant as her accident occurred prior to September 1, 2010.

22Either party may contact the Tribunal to schedule a case conference for the purposes of conducting settlement discussions or scheduling a hearing on the substantive issues.

Released: February 23, 2018

___________________________

Deborah Neilson, Adjudicator

Footnotes

1. 1The Order and the parties indicated I am to determine whether s.9 of O. Reg. 251/15 and s.2 of O. Reg. 347/13 apply retrospectively to claims for attendant care benefits made after February 1, 2014 for accidents that occurred prior to February 1, 2014. This is a very broad question that could deal with facts that have no relation to the applicant's claim and accordingly, I will address the issues only as they pertain to the applicant's claims for housekeeping and attendant care benefits.
2. 2Section 3(7)(e)(iii) of the SABS-2010 states that an expense is not incurred unless the person who provided the goods or 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 sustained an economic loss as a result of providing the goods or services to the insured person.
3. 3s.9 of O. Reg. 251/15, s.2 of O. Reg. 347/13 amended s.19(3) of the SABS-2010 effective February 1, 2014 to limit the amount of attendant care payable to the economic loss of the service provider in certain circumstances.
4. 4See s.2(2) of the SABS-2010 : Subsections 25 (1), (3), (4) and (5), Parts VIII and IX, other than subsections 50 (2) to (5), and Parts X, XI and XII, as they read immediately before Ontario Regulation 251/15 came into force apply with such modifications as are necessary in respect of benefits provided under the Old Regulation with respect to accidents that occurred on or after November 1, 1996 and before September 1, 2010. See also s.3(1.2), (1.3) and (1.4) of the 1996 Schedule.
5. 5Section.2(2)2 of the SABS-2010.
6. 6Section 2(2)2(i) of the SABS-2010.
7. 7Housekeeping benefits are only available under the SABS-2010 for people with catastrophic impairments or if the optional housekeeping benefit was purchased.
8. 8Section 3(7)(e) of the SABS-2010.
9. 9Section 2 of O. Reg. 347/13
10. 10Motor Vehicle Accident Claims Fund and Barnes (FSCO Appeal P16-00087, April 6, 2017)