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Will the Cap on Attendant Care Benefits Have Retroactive Effect? Superior Court Says 'No'

Case Comment: Davis ats Wawanesa 2015

March 2016

A newly released decision of the Superior Court has put time limits on the application of legislation that sought to "cap" the amount payable in respect of attendant care benefits.

Effective February 1, 2014 Ontario Regulation 347/13 provided that attendant care benefits provided by a family member were to be "capped" at the "amount of the economic loss sustained by that family member" as a result of providing the care.

The regulation was silent on the issue of whether it applied to claims arising from accidents occurring before February 1, 2014.

A plaintiff named Teresa Davis was involved in a motor vehicle accident on November 15, 2013, a date clearly occurring before the new regulation came into force. The plaintiff was deemed to meet the criteria for a catastrophic impairment under the SABS. Her Form 1 assessment of attendant care needs was submitted one week after the regulation came into force, on February 7, 2014. At that time the plaintiff’s attendant care needs were assessed at $7,790 per month. The maximum payable under the SABS for a catastrophic claim was $6,000 per month.

The plaintiff chose to receive attendant care services from family members rather than professional service providers. A daughter-in-law would have taken a leave of absence from work to provide the attendant care. The daughter-in-law earned $4,061 on a monthly basis.

While the plaintiff claimed that she was entitled to the higher monthly amount of $6,000 per month for the attendant care services, the insurer relied on the newly enacted regulation which capped the monthly benefit to the amount of the daughter-in-law’s monthly income i.e. $4,061.

Justice Quinlan ruled that the "cap" could not be applied "retroactively" to claims that arose as a result of accidents occurring prior to February 1, 2014.

Justice Elizabeth Quinlan considered the issue and ruled on October 27, 2015 that the "cap" on attendant care benefits effective February 1, 2014 could not be applied "retroactively" to claims that arose as a result of accidents occurring prior to that date. Her analysis proceeded through several steps. After concluding that the regulation "changed" the law and "interfered" with substantive rights, she noted that the "presumption against retrospectivity" had not been rebutted:

"A clear, legislative intent is required to rebut the presumption against retrospectivity. Wawanesa argues that this intent is shown by the timelines of the Regulation, its remedial nature and the explanatory notes that accompanied its filing…there is nothing in the record, including the explanatory notes, that demonstrates a clear legislative intent that the amendment is to apply retrospectively. Accordingly, the presumption has not been rebutted and therefore applies. I find that the plaintiff has a vested right to payment of the attendant care benefit to which she was entitled on the date of her accident."

Although the plaintiff’s attendant care needs were obviously assessed after the regulation came into force, the insurer was now prevented from relying on the "cap" that limited the amount of attendant care benefits to the economic loss of a given family member.

The decision would support the view that amendments to the SABS, at least those coming into effect on February 1, 2014, do not have retroactive effect on claims involving accidents that occurred prior to that date, even if the regulation is silent about this retroactivity. As can be expected, the decision has been received favourably by plaintiff personal-injury advocates. The insurer has decided not to appeal.

... the date of the accident will ultimately determine which amendment to the regulation applies...

The decision raises at least one issue. That concerns whether what was proposed by the insurer was in fact a "retroactive" application at all, given that the plaintiff’s assessment of attendant care occurred after February 1, 2014 and the attendant care services would also have been provided after that date. What is clear is that in circumstances of uncertainty it will be the date of the accident that will ultimately determine which amendment to the regulation applies to a given claim.

Read the full case decision Davis ats Wawanesa 2015 from the Canlii site.




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