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May 2017

Retroactivity, Retrospectivity & Immediate Applicability

Motor Vehicle Accident Claims Fund (MVACF) and Barnes, P16-00087

It is hoped that the recent appeal decision in MVACF and Barnes will shed some light on this turbulent, but interesting, area of accident benefits.

Case Facts

The Applicant was involved in a motor vehicle accident on January 3, 2012. She applied for and received statutory accident benefits from the Motor Vehicle Accident Claims Fund. There was a dispute regarding her entitlement to certain attendant care benefits following which the Applicant applied for arbitration.

The Applicant received attendant care services from her mother, who took an unpaid leave from her employment. At the time of the accident, the Statutory Accident Benefits Schedule ("SABS") provided that expenses for attendant care services were not incurred unless the person providing the services sustained an economic loss as a result of providing the services. In addition, once any economic loss was established, the full prescribed cost of the services was recoverable, up to the maximum payable, regardless of the amount of the service provider’s economic loss. However, the SABS were subsequently amended and, effective February 1, 2014, the amendment limited recovery for services provided by non-professional service providers to the amount of the economic loss the service provider sustained as a result of providing the service.

The issue... was whether the amendment applied to the Applicant for services provided after its effective date.

The issue, in this case, was whether the amendment applied to the Applicant for services provided after its effective date.


Before reviewing this appeal decision, it is important to look to the Insurance Act for further guidance. In particular, s. 268(1) of the Insurance Act states the following:

"Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the [SABS] is made or amended, shall be deemed to provide for the statutory accident benefits set out in the [SABS] and any amendments to the [SABS], subject to the terms, conditions, provisions, exclusions and limits set out in that [SABS]."

As Delegate Rogers rightfully pointed out, s. 268(1) establishes three important principles:

  1. It displaces the concept of a motor vehicle liability policy as a private agreement between an insurer and its insured;
  2. It makes the SABS a part of every policy; and
  3. It makes all amendments to the SABS a part of every policy, including all terms, conditions, provisions, exclusions and limits.

    These three principles are important to keep in mind...

These three principles are important to keep in mind when determining whether a particular case should be afforded retroactivity, retrospectivity or immediate application of the new amendment. Also, these three principles further support the argument that opposes the idea that rights to accident benefits arise from a private contractual agreement and are vested at the time of the accident.

As Delegate Rogers rightfully put it, it would be illogical to apply the concept of vested contractual rights to a relationship in which the parties have no direct input in the terms of their relationship, and the terms may be amended from time to time without their input or consent.

Further, the test for deciding whether legislation is being retrospectively applied is set out in Buskirk v. Canada (Solicitor General), where the Court stated the following:

"Before proceeding, it is helpful to consider the distinction that Professor Ruth Sullivan draws between legislation of retroactive, retrospective and immediate application. While legislation of retroactive application operates to "change the past legal effect of a past situation" and legislation of retrospective application operates to "change the future legal effect of a past situation", legislation of immediate application operates to "change the future legal effect of an on-going situation" [Emphasis added]

As such, it was held that in this Applicant’s circumstances, the application of the amendments fits into the category of legislation that had immediate application. The amendment changed "the future legal effect of an on-going situation." Therefore, the Applicant’s entitlement to attendant care benefits, for services provided by the non-professional service provider after the amendment took effect, is limited to a maximum of the economic loss that non-professional service provider sustained in providing the services.

This decision brings clarity to an area of accident benefits where there was conflicting case law and ought to help simplify and facilitate ongoing disputes pertaining to attendant care claims.

Read the full decision here.


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