[The Applicant] by his Guardian, K. R. v. Unifund Assurance Company, 2019 CarswellOnt 7818

Full Decision

Legal fees incurred in obtaining a guardianship order for persons deemed catastrophically impaired may or may not be considered “rehabilitative benefits”.

The applicant was catastrophically injured in a collision on August 19, 2017. He remained in a coma until his death a year later. Repayment of legal fees incurred in obtaining a guardianship order, in the amount of $9,210, was sought but denied by the insurer.

The applicant argued that the costs for guardianship were a “rehabilitative benefit” under sections 16(1) and 16(3)(l) of the SABS, relying on the 2005 decision in Stukic (Litigation Guardian of) v. Personal Insurance Co. of Canada, [2005] O.J. No. 3325. Here, the court found that the legal costs of obtaining a guardianship order for a catastrophically impaired person were payable under s. 15 (a prior version of s. 16 in the current SABS).

The respondent argued that the legal fees did not fall under “rehabilitative benefits”. In the alternative, they relied on s. 38(2) and denied liability based on the applicant’s failure to submit a treatment plan in advance of incurring the expense. They further argued that the current section is narrower that the old s. 15, limiting entitlement to the activities and measures described in s. 16(3). They relied on the recent amendment to s. 16(3)(l), which now requires that the insurer agree that goods and services, other than those specifically listed in s. 16(3), are essential for the rehabilitation of the insured person.

The LAT determined that the applicant was not entitled to reimbursement for the legal fees incurred because it failed to submit a treatment plan in advance of incurring the legal fees, as required by Section 38(2). The LAT did not make a determination as to whether or not such expenses meet the definition of a “rehabilitative benefit” under the SABS. It seems that for now, a small window is left for repayment of legal fees associated with obtaining a guardianship order as long as:

  1. a treatment plan is first submitted, or notice is given by the insurer that they will pay the expense without a treatment plan; and
  2. the insurer agrees this is a “rehabilitative benefit” which falls under s. 16(3)(l).
Irina Rosca
Written by

Irina Rosca received her law degree from the University of Windsor – Faculty of Law. After articling at a full service, national firm on Bay Street, she joined Greg Monforton and Partners as an Associate in 2018, where she practices exclusively in the field of personal injury. Irina is passionate and committed to protecting the rights of her clients and fighting to secure the compensation they deserve. In her spare time, Irina enjoys giving back and volunteering within her community.