On October 27, 2014 Quinlan, J. rendered a decision in Davis
v. Wawanesa Mutual Insurance Company, 2015 ONSC 6624.
The Plaintiff sought a determination before trial with respect to
whether section 2 of Ontario Regulation 347/13, effective February
1, 2014, which amended the Statutory Accident Benefits
Schedule, Effective September 1, 2010, is to be applied
retroactively. Specifically, the issue was whether the change
that limited attendant care benefits payable to the lesser of the
amount of economic loss sustained by a non-professional service
provider or the Form 1 amount applies to an accident that occurred
prior to February 1, 2014.
The Plaintiff was involved in a motor vehicle accident on
November 15, 2013 and was rendered catastrophically impaired.
A Form 1 was submitted on her behalf by an occupational therapist
on January 31, 2014 which confirmed she required $7,790.15 in
attendant care benefits per month. She was discharged from
the hospital on February 6, 2014 and chose to live with her son,
James, and daughter-in-law, Hilary. The plaintiff chose to have
family members instead of a professional service provider complete
her attendant care needs.
Hilary took a leave of absence from her job as a financial
analyst as of March 10, 2014 in order to care for her
mother-in-law. Wawanesa paid the attendant care in accordance
with Hilary's lost wages ($4,061.16 per month). The
plaintiff was also advised by Wawanesa that if she retained the
services of a professional service provider to complete the respite
attendant care, the difference up to $6,000 per month would be
The plaintiff brought this action claiming that Ontario
Regulation 347/13 does not apply to accidents that occurred prior
to February 1, 2014.
Quinlan, J. held that the amendment to attendant care benefits
under Regulation 347/13 is not a clarification of the law but
instead a substantive change to the plaintiff's entitlement to
attendant care benefits (as it directly affects the amount of
attendant care she is entitled to receive). Therefore, the
presumption against restrospectivity would apply. There was
nothing put before Quinlan, J. that amounted to a clear legislative
intention that the amendments under Regulation 347/13 are to apply
retrospectively and therefore it was found that they only apply to
accidents that occur after February 1, 2014.
Wawanesa was ordered to pay the full amount of the Form 1
(subject to the $6,000 per month limit).
While not a surprising decision, insurers that have taken the
position that the amendments apply retroactively will want to read
it and adjust their claims handling accordingly
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