A newly released decision of the Superior Court has put time
limits on the application of legislation that sought to
"cap" the amount payable in respect of attendant care
Effective February 1, 2014 Ontario Regulation 347/13 provided
that attendant care benefits provided by a family member were to be
"capped" at the "amount of the economic
loss sustained by that family member" as a result of
providing the care.
The regulation was silent on the issue of whether it applied to
claims arising from accidents occurring before February 1,
A plaintiff named Teresa Davis was involved in a motor vehicle
accident on November 15, 2013, a date clearly occurring before the
new regulation came into force. The plaintiff was deemed to meet
the criteria for a catastrophic impairment under the SABS. Her Form
1 assessment of attendant care needs was submitted one week after
the regulation came into force, on February 7, 2014. At that time
the plaintiff's attendant care needs were assessed at $7,790
per month. The maximum payable under the SABS for a catastrophic
claim was $6,000 per month.
The plaintiff chose to receive attendant care services from
family members rather than professional service providers. A
daughter-in-law would have taken a leave of absence from work to
provide the attendant care. The daughter-in-law earned $4,061 on a
While the plaintiff claimed that she was entitled to the higher
monthly amount of $6,000 per month for the attendant care services,
the insurer relied on the newly enacted regulation which capped the
monthly benefit to the amount of the daughter-in-law's monthly
income i.e. $4,061.
Justice Elizabeth Quinlan considered the issue and ruled on
October 27, 2015 that the "cap" on attendant care
benefits effective February 1, 2014 could not be applied
"retroactively" to claims that arose as a result of
accidents occurring prior to that date. Her analysis proceeded
through several steps. After concluding that the regulation
"changed" the law and "interfered" with
substantive rights, she noted that the "presumption against
retrospectivity" had not been rebutted:
"A clear, legislative intent is required to rebut the
presumption against retrospectivity. Wawanesa argues that this
intent is shown by the timelines of the Regulation, its remedial
nature and the explanatory notes that accompanied its
filingâ€¦there is nothing in the record,
including the explanatory notes, that demonstrates a clear
legislative intent that the amendment is to apply retrospectively.
Accordingly, the presumption has not been rebutted and therefore
applies. I find that the plaintiff has a vested right to payment of
the attendant care benefit to which she was entitled on the date of
Although the plaintiff's attendant care needs were obviously
assessed after the regulation came into force, the insurer was now
prevented from relying on the "cap" that limited the
amount of attendant care benefits to the economic loss of a given
The decision would support the view that amendments to the SABS,
at least those coming into effect on February 1, 2014, do not have
retroactive effect on claims involving accidents that occurred
prior to that date, even if the regulation is silent about this
retroactivity. As can be expected, the decision has been received
favourably by plaintiff personal-injury advocates. The insurer has
decided not to appeal.
The decision raises at least one issue. That concerns whether
what was proposed by the insurer was in fact a
"retroactive" application at all, given that the
plaintiff's assessment of attendant care occurred after
February 1, 2014 and the attendant care services would also have
been provided after that date. What is clear is that in
circumstances of uncertainty it will be the date of the accident
that will ultimately determine which amendment to the regulation
applies to a given claim.
The Alberta Court of Appeal provided useful guidance on the application of the organizing principle of good faith in contractual performance, established by the Supreme Court of Canada in its landmark decision Bhasin v Hrynew.
In the blink of an eye, your life can change forever. Car accidents can happen so quickly that in the immediate aftermath, your mind may be racing as you attempt to process what just happened and what happens next.
Recently in Alberta, there have been a number of cases where a municipality has been sued in a civil action concerning a development while there is an ongoing subdivision application being considered by the municipality.
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