Davis v. Wawanesa Mutual Insurance Company, 2015 ONSC 6624

Summary Judgment Motion – Changes to the attendant care benefit that came into force on February 1, 2014 only apply to accidents on or after February 1, 2014.

Released October 27, 2015 | Full Decision [CanLII]

Facts

Ms. Davis was catastrophically injured in a motor vehicle accident on November 15, 2013. Her claim for accident benefits was governed by the 2010 SABS — Effective September 1, 2010, O. Reg. 34/10. Under the 2010 SABS, a non-professional attendant care provider only needed to prove that he or she sustained some economic loss as a result of providing care to obtain the full amount of the Form 1 entitlement.

On February 1, 2014, Ont Reg. 347/13 came into force. This Regulation changed the law so that the amount paid to a family member for attendant care was capped at the family member’s actual economic loss. The Regulation did not indicate whether it was intended to apply to accidents occurring before February 1, 2014.

 

Issue

Does the new Regulation apply retrospectively to the insured’s pre-existing claims for accident benefits?

 

Holding

Ont Reg. 347/13 does not apply retrospectively. Changes to the attendant care benefit only apply to accidents occurring on or after February 1, 2014.

 

Reasoning

Legislative changes that affect a substantive right cannot be applied retrospectively. In limiting entitlement to attendant care benefits to the actual amount of the economic loss, “the Regulation changes the law” (para 26).

The Regulation affected a claimant’s right to access the full amount of attendant care benefits available in accordance with the Form 1 and, in doing so, had a substantive impact on the right to attendant care benefits. This affects the content or the right to attendant care benefits, and as such, the Regulation interferes with substantive rights.

The Court held that an insured’s right to attendant care benefits is a contractual right, and not a right that claimants have that might exist from time to time such as Employment Insurance and ODSP.

 

Read the full decision on CanLII

Ben Irantalab
Written by

Ben enjoys the complexities of personal injury litigation. But what attracts him most to represent seriously injured people is the satisfaction that he receives from helping clients achieve the best possible outcome during their most difficult times. Ben’s practice is exclusively devoted to motor vehicle collisions, occupiers’ liability, accident benefits, product liability, medical malpractice, and wrongful death. For Ben, the cases that require special creativity and thinking outside the box are most gratifying.

In his spare time, Ben enjoys travelling, playing soccer, swimming, and playing backgammon. Ben also speaks Farsi.