Full Decision
Adjudicator: Robert Watt
For the Applicant: Michael Giordano, Counsel
For the Respondent: Matthew Owen, Counsel
Heard: September 10, 2019, In Writing along with submissions
Facts:
The applicant was a Quebec resident involved in a motor vehicle accident in Ontario on March 12, 2017. She was a passenger in the collision and received medical treatment in Ontario. There was no dispute that she was an insured person under the Statutory Accident Benefits Schedule (the “Schedule”) and she reported the accident to the Society d’Assurance Automobile du Quebec (the “SAAQ”), which they acknowledged.
Issues in Dispute:
- Is the applicant required to apply to SAAQ for medical benefits and submit all expenses to the SAAQ prior to receiving benefits under the Schedule?
- If yes, is the respondent entitled to deductions for benefits not received but reasonably available to the applicant pursuant to section 47(2) of the Schedule?
- Is the respondent entitled to deductions for income replacement assistance available from the SAAQ from the specified income replacement assistance pursuant to sections 12(2) and 4 of the Schedule?
Position of the Parties:
The applicant argued that she had the absolute discretion to select which insurance scheme to apply under. Her position stems from the fact that there is no mandate within the Schedule that requires the applicant to apply for, and submit her expenses to, the SAAQ to become eligible for benefits under the Schedule.
Furthermore, the applicant asserts that benefits received from the SAAQ is not a collateral benefit subject to section 47 of the Schedule, as it is an independent scheme parallel to the Schedule in another jurisdiction. As such, section 47 would not be relevant to the SAAQ and so any compensation arising out of the SAAQ would be separate from those the applicant received under the Schedule and would not be subject to deductions.
The respondent countered that, as a resident of Quebec, the applicant was required to apply to the SAAQ prior to obtaining benefits in Ontario and could only receive excess benefits under the Schedule once compensation under the SAAQ have been exhausted.
The respondent further added that medical, rehabilitation, attendant care and visitor’s expenses were not payable as these expenses were available under the Quebec Automobile Insurance Act (the “QAIA”) and should be applied for through the SAAQ first. Additionally, as the QAIA makes income replacement assistance available, this would be considered “other income replacement assistance” defined within the Schedule and deductible from non-earner benefits.
Conclusion:
The tribunal concluded that the applicant was required to apply, and submit all expenses, to the SAAQ prior to receiving benefits under the Schedule. Additionally, the tribunal determined that the respondent was entitled to deductions of other expenses and income replacement assistance.
Reasons:
Pursuant to section 7 of the QAIA, the applicant would be entitled to compensation under this scheme. Additionally, section 83.59 of the QAIA specifically states that, any persons receiving compensation under this scheme retains their right to receive excess compensation under a scheme where their accident occurred. The tribunal interpreted this to mean that the QAIA intended for it to be the primary insurer for Quebec residents.
Additionally, Ontario courts have upheld the position that the Schedule is an excess insurance and applies following the depletion of the primary insurance. As such, the issue is whether the Schedule would cover the applicant as an excess insurer and not a priority dispute between the two schemes, which is dealt with in section 286 of the Insurance Act and which is not relevant to the SAAQ.
In relation to deductions, the tribunal found that the Schedule was quite clear that section 47(2) refers to deductions for compensation received from “any other insurance plan or law”. The tribunal clarified that this includes benefits that are not received but that are reasonably available to the applicant. Furthermore, section 4(1) of the Schedule again permits deductions for income replacement assistance received from a scheme “under the laws of any jurisdiction”, for which the QAIA does provide.
