Canada: Bring Out Your Calculators! Retroactive Attendant Care And SABS Interest


Section 42(1) of the current Statutory Accident Benefits Schedule,1 previously section 39(1), requires an insured to apply for attendant care benefits by submission of a Form 1, the "Assessment of Attendant Care Needs", completed by an occupational therapist or registered nurse. Typically the Form 1 is submitted and – subject to insurer's evaluation of the claim – reasonable and necessary attendant care benefits are paid out on an ongoing basis.

However, the Schedule does not address what occurs when the Form 1 determines the attendant care benefits which were already previously incurred by the insured for a period in the past. These are known as "retroactive" applications, and are rising in popularity. Many proceedings have turned on the nuances associated with retroactive applications, and while many issues have been conclusively resolved, many remain outstanding or conflicted in the jurisprudence.

Retroactive Attendant Care - Delayed But Not Denied

Section 42(5) of the Schedule, previously section 39(3),states as follows:

An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with this section is submitted to the insurer. 

In Kelly v. Guarantee Company of North America,2 the insured was injured in a motor vehicle accident on April 6, 2009. She was hospitalized at Parkwood Hospital for over two months until June 11, 2009. She was then discharged to 24-hour supervisory care. As a result of the accident, the insurer conceded that Ms. Kelly had sustained a catastrophic impairment under the 1996 version of the Schedule.3

The dispute in this case related to the attendant care services that were provided to Ms. Kelly by her parents, as well as those not services not covered by OHIP, between the period of April 6, 2009 and June 23, 2009. No Form 1 was provided until February 1, 2013 covering this time period.

The insurer denied the payment of attendant care benefits firstly on the basis that retroactive Form 1s were not compliant with the provisions of the Schedule. Concerns were also raised as to whether the benefits were "incurred" by the insured.

Arbitrator John Wilson held that although a Form 1 may be a pre-condition to the payment of attendant care expenses, it would be unacceptable to require an injured person in every circumstance to complete all the paperwork required of them prior to incurring attendant care benefits. This was particularly the case involving seriously injured individuals. As there was nothing explicitly denying the availability of retroactive Form 1s in the Schedule, absent stronger statutory language, the insured was permitted to proceed in such a manner.

This approach has been upheld by the Courts. In Grigoroff v. Wawanesa Mutual,4 a decision of the Divisional Court on appeal from a trial judge of the Superior Court, the Court was clear that the failure to submit a Form 1 merely delays the payment of attendant care benefits, it does not forfeit the right of the insured to make that claim. The Court conclusively found that benefits were not payable, in the case of a retroactive Form 1, until the Form 1 is submitted:

In the case at bar, an insurer is not required to pay a claim for attendant care needs until 10 business days after it receives an assessment of attendant care needs. In the case of the disputed benefits, that did not happen until February of 2009, when a revised assessment of attendant care needs was filed for the period from January 20, 2002 to August 1, 2003. 

In T.N. v. Personal Insurance,5 Arbitrator Bayefsky clarified that the insurer is entitled to delay the payment of attendant care benefits due to the absence of a Form 1. However, the benefits cannot be denied on that basis once the Form 1 is submitted:

In my view, section 39(3) of the Schedule does not displace an insurer's basic obligation to pay reasonable and necessary attendant care benefits determined in accordance with a duly prepared Form 1. Section 39(3) establishes an insured's obligation to claim attendant care benefits in accordance with a Form 1, and an insurer's right to await a Form 1 before assessing an insured's entitlement to attendant care benefits.  Section 39(3) allows an insurer to pay attendant care benefits without a Form 1. It states that an insurer is not required to pay attendant care benefits before a Form 1 is submitted. This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person's need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment. 

Delegate Evans, in the recent FSCO appeal of MG v. Economical Mutual Insurance,6 also held that section 39(3) allows an insurer to delay payment, but not deny benefits on that basis. The section concerns a matter of timing.

It is worth noting at this stage that merely submitting a Form 1 does not conclusively establish the insured's entitlement to attendant care benefits. It remains open to the insurer to challenge the evidence (or lack thereof) put forth by the insured, and dispute the reasonableness and necessity of the benefits claimed. As stated by Arbitrator Bayefsky:

... this can only be answered in light of the evidence at the relevant times. The question at that point will be whether the evidence prior to the receipt of the Form 1 reflects the assessment contained in the Form 1.

Interest - Date of Entitlement or of Submission?

Interest is payable on overdue benefits. If the interest runs from the date that the insured became entitled to attendant care benefits, the insurer faces the potential of a large interest award despite a relatively short denial period. If the interest runs from the date of the submission of the Form 1, in cases of retroactive Form 1s at least, the insured has essentially forfeited their right to interest on all retroactive amounts.

Section 51 of the Schedule, previously section 46, states as follows:

(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount in accordance with this section for each day the amount is overdue.

Therefore, interest is payable on overdue amounts. An amount is "overdue" if the insurer has failed to pay the benefit within the required time under the Schedule.

In order to determine this issue, arbitrators and judges often refer to the nature of interest itself. Justice Major, speaking on behalf of the unanimous Supreme Court of Canada in Bank of America Canada v. Mutual Trust Co., highlighted that interest is meant to compensate for the time-value of money:

Compensation is one of the chief aims of the law of damages, but a plaintiff who is successful in his action and is awarded a sum for damages assessed perhaps years before but now payable in less valuable dollars finds it quite obvious that he has been shortchanged. Equally obviously, payment of interest on his damage award from some relevant date is one way of redressing this problem.

The overwhelming opinion today of Law Reform Commissions and the academic community is that interest on a claim prior to judgment is properly part of the compensatory process.7

In other words, interest is not intended to serve a punitive function.

Grigoroff, as cited above, is the most authoritative decision currently on the issue of interest in the context of a retroactive Form 1. As it was a decision of the Divisional Court citing in appeal of the Superior Court of Ontario, its comments are binding as precedent on trial judges. The Court held that attendant care benefits only become "overdue" once 10 days have passed since the submission of a Form 1. Interest cannot be applied retroactively.

Interestingly, the date of loss in Grigoroff was on December 7, 2001. The Court referred to then section 39(1):

An application for attendant care benefits for an insured person must be in the form of an assessment of attendant care needs for the insured person that is prepared and submitted to the insurer by a member of a health profession who is authorized by law to treat the person's impairment.

However, this was not section 39(1) in 2001. This amendment was made in 2005 via O. Reg. 546/05. Prior to this date, section 39(1) stated as follows:

Within 14 days after receiving an application for an attendant care benefit, an insurer shall,

(a) give the insured person notice that it has approved the application, if the insurer determines that it is required to pay for the expenses described in the application; or

(b) give the insured person notice that the insurer required the insured person to furnish a certificate from a member of a health profession who is authorized by law to treat the person's impairment stating that the expenses described in the application are reasonable and necessary for the person's care.

This was emphasized by Justice Gunsolus in Mulhall v. Wawanesa Mutual Insurance.8 Justice Gonsolus correctly stated that in 2001, the law did not require the submission of a Form 1, and therefore, the decision in Grigoroff did not apply to the case before him (which had a similar date of loss):

Therefore, pursuant to s. 39(1), a claim for attendant care benefits must be in the prescribed form of an Assessment of Attendant Care Needs. As counsel for the plaintiff suggested, before the amendment an injured party had only to file an application in response to which the respondent insurer would either: a) agree to the payments, or b) take the further step of requiring the applicant to submit a form prepared by their health care professional (Form 1).

Despite the fact that Justice Gonsolus did not have to follow the Divisional Court's ruling in Grigoroff because of the different legislation, he then indicated that he would not have followed the Court's binding precedent because the Court did not deal with the consumer protection aspect of insurance law:

"interest in this case should begin to accrue from the date that the insurer had sufficient information to be able to assess whether the benefit should have been paid regardless of whether or not the plaintiff or his parents specifically applied for attendant care expenses".

In any event, FSCO arbitrators have applied Grigoroff with ease. In a recent decision Nadesu v. Zurich Insurance Co.9, Arbitrator Rogers followed the approach of the Divisional Court in Grigoroff:

8      In my view, the decision of the Divisional Court in Grigoroff v. Wawanesa Mutual Insurance Co. precludes the approach Mr. Nadesu suggests. In that case the insurer paid ACBs pursuant to an Assessment the plaintiff delivered shortly after the accident. About 7 years later, the plaintiff delivered a retroactive Assessment, claiming further ACBs. The insurer did not pay pursuant to the retroactive Assessment. At trial, the plaintiff was found to be entitled to further payment from a date preceding delivery of the retroactive Assessment and the trial Judge ordered payment of interest from the date of entitlement.

9      The Divisional Court reversed the trial Judge's decision. The Court concluded that delivery of the Assessment is critical to entitlement to interest. The Court noted that: "pursuant to s. 39(1), a claim for attendant care benefits must be (emphasis added) in the prescribed form of an assessment of attendant care needs..."

Further, in Whyte v. State Farm Mutual Automobile Insurance Co.,10 the arbitrator did not award interest on retroactive attendant care benefits, using the same reasoning as the Divisional Court in Grigoroff: there is no obligation on the insurer to pay interest on the attendant care benefits until it received a Form 1.


The decisions above indicate that an absence of a Form 1 is not a bar to retroactive claims for attendant care. However, with respect to the interest payable on the retroactive attendant care expenses, the law has been less certain. Although decisions in Grigoroff and Nadesu ruled that interest was calculated after the Form 1 was submitted, the decision in Mulhall stated that interest should begin to accrue from the date that the insurer has sufficient information to be able to assess whether attendant care benefits should have been paid.

Until the matter comes before the Court of Appeal for Ontario, the Divisional Court's ruling in Grigoroff remains the binding precedent to be followed by trial judges and arbitrators alike.


1. Statutory Accident Benefits Schedule â€" Effective September 1, 2010, O. Reg. 34/10.

2. Kelly v. Guarantee Company of North America, FSCO A12-006663 (August 7, 2014).

3. Statutory Accident Benefits Schedule â€" Accidents on or after November 1, 1996, O. Reg. 403/96.<

4. Grigoroff v. Wawanesa Mutual Insurance Co., 2015 ONSC 3585 (Div. Ct.).

5. T.N. v. Personal Insurance Co. of Canada, FSCO A06-000399 (July 26, 2012).

6. MG v. Economical Mutual, 2014 CarswellOnt 10513 (FSCO App.).

7. Bank of America Canada v. Mutual Trust Co., 2002 SCC 43 citing Mary Anne Waldron, The Law of Interest in Canada (Scarborough, Ont.: Carswell, 1992), at pp. 127-128

8. Mulhall v. Wawanesa Mutual Insurance, 2015 ONSC 7495.

9. Nadesu v. Zurich Insurance Co., 2016 CarswellOnt 1577 (F.S.C.O. Arb.) ("Nadesu").

10. Whyte v. State Farm Mutual Automobile Insurance Co., 2015 CarswellOnt 11967 (F.S.C.O. Arb.).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.