[J.W.] v. Wawanesa Insurance, 2019 CanLII 119761

Citation: [J.W.] vs. Wawanesa Insurance, 2019 ONLAT 18-003407/AABS

Date: December 10, 2019

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:

[J.W.]

Appellant(s)

and

Wawanesa Insurance

Respondent

DECISION AND ORDER

PANEL:

D. Gregory Flude, Vice Chair

Appearances:

For the Appellant:

Gurjiwan Brar, Counsel

For the Respondent:

James Brown, Counsel

Heard:

In Writing: November 8, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1J.W., the applicant, is a resident of Ontario. She was seriously injured in an automobile accident in Quebec on September 30, 2000. She elected to receive benefits under the Quebec no-fault accident benefits scheme, as she was entitled to do pursuant to the applicable Ontario no-fault accident regulations. Over the years, the fee for service guidelines in Ontario and Quebec have changed, as a result of which the Ontario hourly fee for service scale currently allows for greater fees to be paid to service providers than the Quebec fee for service scale. J.W. seeks to continue to receive benefits under the Quebec no fault regime, which has no upper limit for medical benefits and attendant care benefits, but to have those benefits paid at the Ontario hourly rate. The respondent, Wawanesa, takes the position that the applicable rate is the Quebec hourly rate.

2In support of her position that she should be paid according to the Ontario scale, J.W. argues that the amount paid to service providers is a procedural matter and that there is a legal doctrine that procedural matters are governed by the jurisdiction where the file is administered. Under the Ontario no-fault regime, Wawanesa administers the file in Ontario, but applies the Quebec no-fault rules. Wawanesa takes the position that Quebec law should apply as the hourly rate paid to service providers is not procedural but a substantive entitlement.

3For the reasons below, I find that J.W. is covered by the Quebec legislation, including the Quebec fee for service scale. Her position runs directly counter to the clear wording of the governing Ontario legislation.

ISSUE

4The preliminary issue in dispute was identified and agreed to as follows:

i. Whether the rates of benefits paid are substantive or procedural in nature, in accordance with the applicant’s election and payable under Quebec or Ontario rates.

RESULT

5Section 57(1)(b) of Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O. Reg 403/96 (the “SABS”) governs J.W.’s election. To the extent that interpretation of that section can be characterized in terms of substantive and procedural components, a proposition that is in some doubt, it provides that once she has elected to received benefits under the Quebec system, she is to receive those “benefits in the same amounts and subject to the same conditions as if [she] was a resident of the jurisdiction in which the accident occurred.” In other words, for the purpose of calculating benefits, J.W. is deemed to be a resident of Quebec.

ANALYSIS

6The parties focussed their arguments around the wording of s. 57 of the SABS. In particular, they each focus their argument on the word “amount” in s. 57(1)(b), reproduced below. J.W. argues that the word “amount” is substantive and refers to the total aggregate of benefits available. She submits that the “amounts” paid to service providers is simply a procedural matter and that the Ontario fee guide should apply. In contrast, Wawanesa argues that the word “amount” catches any amount, whether an hourly rate or an aggregate total, and that the Quebec fee guide should apply. In my view, the narrow focus on one word runs directly counter to the modern approach to statutory interpretation. Before proceeding to look at s. 57(1)(b), I will briefly outline the facts.

7There are no material facts in dispute. J.W. suffered catastrophic injuries in the September 2000 accident and is a quadriplegic. She needs extensive ongoing medical services. The SABS limits the amount available for medical and rehabilitation benefits to $1,000,000. (s. 19(2)). The corresponding Quebec no-fault legislation is the Automobile Insurance Act, C. Q. L. R., 1989, c. A-25 ("AIA"). It has no upper limit on medical and rehabilitation benefits. As of January 29, 2019, J.W. has received $1,287,205.10 in medical and rehabilitation benefits.

8Both Quebec and Ontario publish fee guidelines for the minimum hourly rates an insurer must pay for listed services for injured persons. At present, the Ontario fee guideline sets higher rates than the Quebec fee guideline for several services required by J.W. There is no prohibition preventing an insurer from paying more than the fee guideline.

9From the date of the accident until August 2010, Wawanesa paid for services provided to J.W. at the Quebec hourly rates for service providers. Unilaterally, in 2010, Wawanesa notified J.W. that they would pay her service providers at the Ontario rate. In August 2016, Wawanesa unilaterally switched back to the Quebec rates. J.W. alleges that this switch has caused her hardship, since there is a shortfall between the rates charged by her Ontario service providers and the Quebec fee schedule. For the purposes of this analysis, I need not get into details of the shortfall for each service.

10J.W. argues that the amount paid for a specific service is a procedural requirement in administering the no fault scheme. As such, it is Ontario law that should apply. She argues that the Ontario limit of $1,000,000 for medical and rehabilitation benefits and $1,000,000 for attendant care benefits as against the Quebec regime that has no upper limit is a substantive requirement. In her submission, she is entitled to the substantive right to no upper limit on benefits, along with the procedural right that those benefits are to be paid at the Ontario hourly rates. As stated above, she focusses her argument on the use of the word “amount” is s. 57(1)(b). In my view, the grammatical and ordinary sense of s. 57(1)(b) does not support that interpretation.

11In my view, when read in its totality s. 57(1)(b) answers the very question the parties have posed. The SABS occupies a somewhat unique position in that it is both a legislative and contractual obligation. Its terms are incorporated into every contract of automobile insurance issued in the province of Ontario. It is trite law that parties may by contract address question of applicable law and procedure. Section 57(1)(b) does just that. It states as follows:

57. (1) If, as a result of an accident in another province or territory of Canada or a jurisdiction in the United States of America, a person insured in that jurisdiction dies or sustains an impairment or incurs an expense described in section 14, 15 or 16, the insurer shall pay, as the person may elect,

(a) benefits provided by this Regulation, other than the benefits referred to in clause (b); or

(b) benefits in the same amounts and subject to the same conditions as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction. [emphasis added]

12There is only one grammatical and ordinary sense to the meaning of s. 57(1)(b). Once J.W. made her election, she was thereafter to be treated as if she resides in Quebec. Thus, whether procedurally or substantively, it is the law of Quebec that applies, just as it applies to Quebec residents, and governs her claim for benefits.

13Such an interpretation does not offend the overall purpose of the SABS or its consumer protection mandate. Quite the contrary, the SABS’s purpose and mandate are actually advanced by giving an injured party an option to consider which no-fault scheme best satisfies their needs (i.e., provides greater protection). Having determined that she was best served by the Quebec no-fault scheme, and having made her election, J.W. was then bound to that scheme with no option to opt back into all or part of the Ontario scheme, including rates for service. The wording, in fact, is designed specifically to provide certainty with regard to applicable rates and limits.

ORDER

14Having heard the submissions of the parties, the material facts not being in dispute, I order that claim for hourly rates of benefits is substantive and payable in accordance with Quebec law as set out in s. 57(1)(b) of the SABS.