17-006563 v Allstate Insurance Company of Canada, 2018 CanLII 97831

Date: 2018-06-13

Tribunal File Number: 17-006563/AABS

Case Name: 17-006563 v Allstate Insurance Company of Canada

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:

Applicant

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

Counsel For the applicant: Darcy R. Merkur

Counsel for the respondent: Jennifer Griffiths

HEARD In Writing: March 19, 2018

OVERVIEW

1The applicant was injured in an automobile accident on July 6, 2017, and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule – June 1, 2016¹ (the “Schedule”). The respondent refused to pay for certain medical/rehabilitation benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2A case conference was held on January 15, 2018 and an Order was issued on February 2, 2018 ordering a written preliminary issue hearing proceed on March 19, 2018 to decide the following issue noted below.

ISSUE TO BE DECIDED

3The disputed claim in this preliminary issue hearing is:

(i) Did the purchase of optional benefits described in s. 28(1) 5 of the Schedule, provide coverage for case management services pursuant to s. 17(1) (b) of the Schedule, in the absence of a catastrophic impairment designation?

RESULT

4I do not find the applicant’s purchase of optional benefits described under s.28(1) 5 of the Schedule entitles the applicant to coverage for case management services pursuant to s.17(1) (b) of the Schedule, in the absence of a catastrophic impairment designation. I find s.17(1) (b) when read in conjunction with s. 28 (1) 5 of the Schedule provides an insured with entitlement to claim case management services if the optional catastrophic impairment benefit has been purchased and the insured has been deemed to have sustained a catastrophic impairment as a result of the accident.

FACTS

5The applicant is claiming entitlement to case management services as a result of injuries sustained from the accident. The parties concede the applicant has not been deemed to suffer from a catastrophic impairment pursuant to the new definition of catastrophic impairment defined by the Schedule.

6It is conceded by both parties that at the time of the accident, the applicant was the named insured on a policy held by the respondent and the applicant had purchased the optional catastrophic impairment benefit as defined within s. 28(1) 5 of the Schedule.

7The applicant sought case management services pursuant to s.17 (1) (b) of the Schedule. On August 22, 2017, a treatment plan (“OCF-18”) was submitted to the respondent for case management services in the amount of $2,658.99. The respondent denied the OCF-18 on the basis the applicant is not catastrophically impaired.

8The applicant has not yet applied for catastrophic impairment designation and is unable to do so until at least two years from the date of the accident have lapsed.

9The dispute I must decide on is whether the applicant is entitled to claim case management services as she has purchased the optional catastrophic impairment benefit in accordance with s. 28(1) 5 but has not yet applied for catastrophic impairment determination.

10The Schedule notes under subsection 17 (1) (b) the provisions for optional benefits which include: medical, rehabilitation, and an attendant care benefit. This subsection further references paragraphs 4 and 5 of subsection 28 (1).

• Paragraph 4 of subsection 28 (1) provides entitlement up to a maximum of $1,000,000.00 (instead of the maximum amount as per clause 18 (3) (a) of the Schedule) if the insured person is non-catastrophic and up to a maximum of $2,000,000.00 (instead of the maximum amount as per clause 18 (3) (a) of the Schedule) if the insured person sustained a catastrophic impairment.

• Paragraph 5 of subsection 28 (1) provides entitlement up to $1,000,000.00 medical, rehabilitation, and an attendant care benefit if the insured person sustained a catastrophic impairment as a result of the accident.

RESPONDENT’S POSITION

11The respondent submitted the Schedule establishes that until an insured person is designated to have sustained a catastrophic impairment, the insured person is precluded from accessing catastrophic impairment level benefits, which include case management services. It is the respondent’s submission that the applicant is seeking entitlement to case management services under the optional catastrophic impairment benefit purchased under s. 28(1) 5. The respondent noted the applicant is seeking entitlement based on the contingent possibility the applicant may be designated catastrophically impaired in the future. The respondent relied on the Supreme Court of Canada case Rizzo v. Rizzo Shoes Ltd. which noted: “the words of an Act are to be read 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.”²

12As submitted by the respondent, the plain language reading of s.17 (1) (b) and s.28 (1) 5, the entitlement to optional benefits under s. 28(1) 5 is contingent on the applicant obtaining a catastrophic impairment designation. It is the respondent’s position that until this condition is met, the benefit is not available to the applicant. The respondent further noted that s. 17(1) (b) provides case management benefits through s. 28(1) 4, for both catastrophic and non-catastrophic persons.

13The following chart provides a summary of the provisions of the catastrophic impairment benefit as noted under Case Manager Services under s. 17 (1) (a) (b) of the Schedule.

ACCESS TO CASE MANAGER SERVICES

Schedule Reference	Eligibility Criteria	Benefits
17(1)(a)	If the insured sustains a catastrophic impairment	Up to $1,000,000 med /rehab benefits; including access to case management services
17(1)(b)	If the insured purchased optional med/ rehab, and the attendant care benefit as referred to in subsection 28 (1) 4	i. Up to a maximum of $1,000,000 med/ rehab, and attendant care benefit; including access to case management services if the insured person did not sustain a catastrophic impairment as a result of the accident. ii. Up to a maximum of $2,000,000 med/ rehab, and attendant care benefit; including access to case management services if the insured person sustained a catastrophic impairment as a result of the accident.
17(1)(b)	If the insured purchased the optional catastrophic impairment benefit as referred to in subsection 28 (1) 5	Up to $1,000,000 in med/rehab and attendant care benefit; including access to case management services if the insured person sustained a catastrophic impairment as a result of the accident.

14The respondent submitted that s.17 (1) (a) provides an insured person who sustains a catastrophic impairment with access up to $1,000,000.00 in medical/rehabilitation, attendant care benefits, and includes access to case management services. The respondent noted this is distinguishable from the optional coverage available under s.17 (1) (b). The respondent submitted that under s.17 (1) (b) - both s. 28(1) 4 and s. 28(1) 5 are referenced. The respondent noted if the insured person purchased the optional benefit coverage under s. 28(1) 4, this would provide the insured person with access up to $1,000,000.00 in medical/rehabilitation, attendant care benefits, and includes access to case management services if the insured person is not catastrophically impaired. If the insured person is catastrophically impaired, up to $2,000,000.00 is available for medical/rehabilitation, attendant care benefits, and access to case management services. While s. 28(1) 5 is an optional catastrophic impairment benefit which provides medical/rehabilitation, attendant care benefits, and access to case management services up to $1,000,000.00 if the insured is catastrophically impaired.

15It was submitted by the respondent that the principles of statutory interpretation “mandate the avoidance of absurd provisions” to reject interpretations which can lead to consequences unintended by legislature. The respondent relied on the FSCO decision Gonzalez-Izquieta and RBC General Insurance Company³. The respondent submitted the wording in s. 28(1) 5 is clear that in the absence of a catastrophic impairment designation, there is no additional entitlement whatsoever [emphasis respondent’s]. Lastly, the respondent submitted that providing additional entitlement under this section to non-catastrophically impaired insured persons would constitute an “unintended consequence” and there would be no need for the optional coverage as noted in s. 28(1) 4 as it would “automatically flow” when optional coverage is purchased under s. 28(1) 5. The respondent submitted this would be an absurd result.

16The respondent submitted that if the applicant would have purchased s. 28(1) 4 as an optional benefit, she would have gained entitlement to claim the coverage she is seeking from the respondent for the case management services.

APPLICANT’S POSITION

17The applicant submitted that as a result of the applicant purchasing the optional catastrophic impairment benefit described under s. 28(1) 5, and through the operation of s. 17 (1) (b), this entitles the applicant to reasonable and necessary case management services to be funded by the respondent, even though “she is not (yet) CAT” [emphasis applicant’s].

18The applicant noted within the submissions that the Schedule “must receive a large and liberal construction and interpretation to best attain its consumer protection [emphasis applicant’s] objective”. The Supreme Court of Canada Case, Smith v. Co-operators General Insurance Company⁴ was relied on by the applicant. Therefore, it is the applicant’s submission that s.17 (1) and s. 28 (1) 5, must be construed broadly and in favour the insured [emphasis applicant’s]. Further the applicant submitted that insurance coverage provisions are to be broadly interpreted, and coverage exclusions/restrictions are to be narrowly construed, in the favor of the insured. The applicant relied on Monks v. ING Insurance Company of Canada⁵

19The applicant submitted that s. 17(1) (a) notes that someone who is catastrophically impaired is entitled to case management services. Therefore, the applicant submits that s. 17(1) (b) must be interpreted to include “circumstances where a catastrophic impairment designation is not (yet) available”. It is the applicant’s position that a determination of catastrophic impairment is not necessary to make the purchased optional catastrophic impairment benefit available to the applicant and any ambiguity should be resolved in favour of the applicant.

20The applicant relies on the reading of s. 17 (1) (b) to support that the applicant is eligible to claim case management services; “if…the catastrophic impairment benefit referred to in paragraph 5 of subsection 28(1) is available [emphasis applicant’s] to the insured person”. It is the applicant’s position that this benefit became available to the applicant when the optional benefit was purchased prior to the accident.

21The applicant rejected the respondent’s position that case management services are only available if the optional catastrophic impairment benefit purchased under s. 28 (1) 5 was purchased by the applicant and the applicant’s impairments are determined to be catastrophic. The applicant’s position is that sections 17(1) (a) and 17(1) (b) would be redundant if the respondent’s submission is accepted.

22It is the applicant’s submission that the purchased and applied language is utilized in three other sections of the Schedule relating to the optional catastrophic impairment benefit. The sections include: s.s.19 (3) 1, 3, and s. 30 (1) 5. The applicant submitted the word “available” referenced in s. 17(1) (b) of the Schedule cannot be interpreted to have the exact same meaning as the “purchased and applied” language as referenced within the sections above. The applicant lastly submitted that the legislation’s intended use of the word “available” means that the optional benefits purchased by the applicant are available to her even though she remains non-catastrophically impaired.

23The applicant challenged the respondent’s position which maintained that s. 17(1) (b) is a potential entitlement available to the applicant but is subject to the fulfilment of the condition noted in s. 28(1) 5. The applicant’s position is that entitlement to case management services is created when the insured has purchased the optional catastrophic impairment benefit and is entitled to claim accident benefits as a result of being in a motor vehicle accident. The applicant noted the two different interpretations create ambiguity which must be resolved in favor of the applicant.

ANALYSIS

ENTITLEMENT TO CASE MANAGEMENT SERVICES

24I find the applicant is not entitled to claim the benefit of case manager services. I find the plain language reading of s.17(1) (b) read in conjunction with s. 28 (1) 5 of the Schedule provides an insured with entitlement to claim case management services if the optional catastrophic impairment benefit has been purchased and the insured has been deemed to have sustained a catastrophic impairment as a result of the accident. As of the hearing, the parties concede the applicant’s injuries have not been deemed catastrophic.

25I rely on the Supreme Court of Canada’s decision, Rizzo v. Rizzo Shoes which emphasizes the words of an Act (in this case, the Schedule) are to be read in their entire context and grammatical and ordinary sense with the scheme and object of the Act, and intention of parliament. The Schedule specifically notes under s. 17 (1) (b) that an insured person is entitled to claim case manager services when the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) is available [emphasis mine] to the insured person. The Schedule further noted under paragraph 5 of subsection 28 (1), an optional catastrophic impairment benefit for medical, rehabilitation and attendant care benefits up to $1,000,000.00 if [emphasis mine] the insured person sustained a catastrophic impairment as a result of the accident. It is the word if that confirms this contingency.

26Therefore it is not the purchase of this optional catastrophic impairment benefit alone under s. 28 (1) 5 which makes this benefit available to the insured person, but rather the purchase of the optional catastrophic impairment benefit and then the insured person sustaining a catastrophic impairment as a result of the accident which triggers the entitlement to claim the optional catastrophic impairment benefit which would include case manager services.

CONCLUSION

27For the reasons noted above, I find in favor of the respondent and the applicant shall not proceed to a hearing on this issue.

Footnotes

1. 1O. Reg. 34/10: Statutory Accident Benefits Schedule- Effective September 1, 2010. Consolidation period: From June 1, 2016 to e-laws currency date.
2. 2Rizzo v. Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998], 1 SCR 27 (SCC), at para 21
3. 3Gonzalez-Izquieta and RBC General Insurance Company (FSCO A14-008055), February 1, 2016
4. 4Smith v. Co-operators General Insurance Company, 2002 SCC 30, [2002], 2 SCR 129 (SCC), at para 11
5. 5Monks v. ING Insurance Company of Canada, 90 O.R. (3d) 689, 2008 ONCA 269 at paras 51, 52