Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585

Released July 15, 2015 | CanLII

This Divisional Court decision concerns the issue of when interest begins to run on attendant care benefits.  The Divisional Court noted that the determination of this issue turned on when the payment of a benefit is “overdue”.

The Plaintiff was involved in a motor vehicle collision on December 7, 2001. The Plaintiff retained various occupational therapists and case managers to prepare attendant care assessments (Form 1s).

In early 2009, the Plaintiff retained an occupational therapist to prepare a “retroactive” attendant care assessment (Form 1) to re-examine the attendant care assessments that had previously been submitted by the Plaintiff. The retroactive Form 1 was subsequently submitted to Wawanesa for payment. Wawanesa refused to pay for the retroactive attendant care benefits.

At trial, the jury awarded the Plaintiff an amount in excess of the amount that Wawanesa had paid the Plaintiff for attendant care benefits.

Wawanesa paid the amount owing, together with interest, from the date the Plaintiff submitted the retroactive Form 1. The Plaintiff disputed Wawanesa’s start date for the calculation of interest and claimed interest from the date the jury determined the excess amount of attendant care benefit had been payable (February 2002). The difference in the respective interest calculations amounted to $46,801.00.

The trial judge accepted the Plaintiff’s position. She held that simply because Wawanesa did not know what amounts were due for attendant care benefits did not mean that interest did not begin to run from 10 business days after the payments were subsequently found owing. Wawanesa appealed the trial judge’s decision to the Divisional Court.

The Divisional Court held that the central issue was the proper interpretation of section 46 of the Statutory Accident Benefits Schedule (“the Schedule”), which states that interest is payable on overdue amounts and an amount is overdue if the insurer fails to pay within the required time under Part X of the Schedule.

The Divisional Court went on to note that section 39 states a claim for attendant care benefits must be in the prescribed form of a Form 1. An insured is required to pay attendant care benefits within 10 business days after receiving a Form 1. Section 39 also provides that the insurer may, but is not required, to pay an expense incurred before a Form 1 is submitted.

Therefore, the Divisional Court held that an insurer is not required to pay a claim for attendant care benefits until 10 business days after it receives a Form 1. In the case at bar, Wawanesa did not receive a Form 1 for the disputed amount of attendant care benefits until early 2009, when the retroactive Form 1 was submitted. The Divisional Court allowed the appeal and amended the trial judge’s judgment with respect to the amount of interest owing.

 

Counsel for Plaintiff: Gordon McGuire

Counsel for Defendant: Ian Kirby

Full decision available on CanLII

Liane Shepley-Brown
Written by

Liane first joined Oatley Vigmond as a law student and later joined the team as an Associate Lawyer after her call to the bar. She holds a JD from the University of Windsor and an undergraduate degree in Psychology from the University of Guelph.

Liane is committed to representing individuals who have suffered serious personal injuries and to families who have suffered the loss of a loved one. Her practice concentrates on personal injury law, including accident benefits, motor vehicle collisions, medical malpractice, occupiers’ liability, product liability and wrongful death cases.

When Liane isn’t practicing personal injury law, she enjoys working out and spending time with family and friends.