The Ontario Court of Appeal has clarified key aspects of the law regarding attendant care benefits in the case of Morrissey v. Wawanesa Insurance Company. This landmark decision addresses critical issues related to retroactive claims and the definition of "incurred" expenses under the Statutory Accident Benefits Schedule (SABS). The ruling has important implications for individuals seeking attendant care benefits, simplifying the process and removing previous barriers.
Background of Steven Morrisey's Case
The Plaintiff, Steven Morrisey, was catastrophically injured in a motor vehicle accident in 2000. He applied for and received statutory accident benefits from Wawanesa. In April 2018, he applied for increased attendant care benefits from October 2015 forward. Wawanesa denied his claim, in part, on the basis that:
He failed to meet the test of “urgency, impossibility, or impracticability” when claiming benefits retroactively; and
He had not “incurred” the attendant care expenses as required by the 2010 SABS.
Court of Appeal Overturns LAT and Divisional Court Decisions
Wawanesa was successful at the Licence Appeal Tribunal (“LAT”) and the Divisional Court. Mr. Morrisey appealed. In a detailed decision, Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602, Justice van Rensburg of the Ontario Court of Appeal, found against Wawanesa on both issues and granted the appeal.
No precondition of “urgency, impossibility, or impracticability”
On the first issue, she found that the lower court erred in its interpretation of s. 42(5) of the 2010 Schedule, and held that there was “no basis in s. 42(5) for requiring as a precondition to the consideration of such a claim that the insured provide an explanation, based on urgency, impracticability, impossibility or otherwise, for why the claim is in respect of goods or services already provided.” In so doing, the Court of Appeal eliminated a long-standing legal hurdle that had developed in the case law and made it easier for injured people to claim retroactive benefits.
Definition of “incurred” does not apply
On the second argument, the Court noted that:
This issue engages the interaction between the 1996 and 2010 Schedules. Section 3(7)(e) of the 2010 Schedule limits the expenses claimed for ACBs to goods or services provided by a qualified provider or other person who has incurred an economic loss. The 1996 Schedule, by contrast, did not define the term "incurred", and case law interpreted "incurred" to permit ACBs to be paid when goods or services were provided by an unqualified person without evidence of an economic loss, and even if the goods or services were not actually supplied, provided that they were reasonably necessary and the amount of the expense could be determined with certainty the prior case law which held that for claims arising from accident prior to September 1, 2010.
Following a detailed analysis of the applicable section and the case law, the Court held:
The Schedules, including their transitional provisions, make it clear that the definition of "incurred" in s. 3(7)(e) of the 2010 Schedule does not apply to Mr. Morrissey's claim for ACBs. Rather, the settled case law applies to the interpretation of when an attendant care expense is incurred for the purpose of the 1996 Schedule.
Impact of the Ruling on Future Attendant Care Claims
In the result, the Court reaffirmed the prior case law which held that injured people claiming attendant care benefits from claims arising from accidents prior to September 1, 2010 need only prove that the benefits were reasonably necessary, if not actually incurred, in order to receive them. This finding will also make it easier for claimants to receive benefits.
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