News Update – March 22, 2019

The Court was Not Amused

A recently released judicial review of an April 2017 FSCO decision Barnes v. Motor Vehicle Accident Claims Fund considered a January 2012 accident and whether the Applicant’s ongoing claim for attendant care services was subject to the February 1, 2014 amendments for calculating the amount of attendant care benefits payable for care provided by non-professional caregivers.

The Applicant had been receiving benefits at the rate of $6,000 per month, with the services having been provided on an ongoing basis by her mother, who had taken a leave from her employment to care for her daughter. The “substantive issue at play is whether the applicant’s claims for attendant care benefits for care provided by her mother after February 1, 2014 would continue to be paid under the pre-existing law or would be capped by the new regulation at the amount of income lost by her mother by leaving her job”.

The Court noted that most of the focus was on whether “the applicant had a ‘vested right’ in the benefits calculated under the old SABS at the time that it changed…applicant argued that her entitlement to benefits at $6,000 per month for her mother had become a vested right prior to the new regulation coming into force”. It was further noted that in both FSCO proceedings, “the applicant refused to disclose the income that her mother earned prior to leaving her job as she asserted that it was not relevant to the case”.

The Court then referenced “SURPRISE #1”, a recent disclosure that the Applicant’s “mother’s former employment income exceeded $6,000 per month. The respondent fund has recognized that the applicant is therefore entitled to continue to receive the maximum benefit per month for her mother’s attendant care under the new law as she had before.” The Court further noted the following:

This disclosure raised a question as to whether the legal issue being argued arose on the facts of the case. The applicant has not lost any entitlement to benefits under the new regulation. She will continue to be paid the maximum benefit despite the cap that might limit other people’s’ benefits. The applicant suffers no deprivation of economic value. She suffered no detrimental reliance. There is no expropriation of value. There is no interference with the applicant’s choice of caregiver. The applicant’s individual interests are not affected by the enforcement of any societal interest in the new regulation. It works no injustice upon her.

Then comes “SURPRISE #2”, with counsel for the responding fund confirming there to be “a separate legal proceeding in which his client and the snowmobile insurer are in a dispute over which of them ought to be required to fund the applicant’s benefits under the SABS. Counsel told us that the respondent fund and the snowmobile insurer had been through an arbitration and then an appeal to the Superior Court. A further appeal is now pending before the Court of Appeal… Justice Lederer held that the snowmobile’s insurer Echelon is the party liable to pay the applicant’s benefits under the SABS. Although the respondent fund was represented before us, it has no liability to the applicant under the SABS.”

The Court accordingly held that “the issues in this case are moot. The outcome of the issue argued by the parties does not affect them. Apart from the waste of parties’ and judicial time and resources, the case is not fit for decision-making.” While the intervenor in this matter (OTLA) “argue that there are grave injustices being committed”, the Court noted that resolution of such matters turn on facts and “the necessary facts do not arise in this case”, and further that “this is not a case where the likelihood of repetition of the issue is remote or where there is an important collateral purpose to justify trying to resolve the issue even though it is moot. The case is all about injustice.” “The only injustice before the court is to others who may actually suffer real prejudice if the new regulation retrospectively applies to them and who find themselves unable to seek relief because the applicant and the intervenor brought a case with an insufficient factual foundation to succeed.”

Dismissing the application as moot, the Court was “not inclined to exercise the discretion to award costs in light of the unsatisfactory manner that this application was both brought and to which it was responded.” “Neither the applicant nor the respondent fund moved to admit fresh evidence as to the applicant’s late disclosure of her mother’s income or of the proceedings before Lederer J. Neither of them moved to add Echelon as a party. Neither raised the doctrine of mootness. Moreover, the respondent responded to a case in which it has no interest. And I do not know why the applicant refused to disclose her mother’s income to the tribunals below or why she brought this application given that, on the facts as finally disclosed, it is apparent that she does not suffer harm from the law whose application she is challenging. I note that we have little information about how much knowledge about these issues each of the individual counsel who appeared before us had. But there should not have been any surprises revealed in court – let alone two.”

In a similar fact situation, B.D. and Wawanesa, 17-005604, released to the parties in September 2018 but yet to be published on CanLII, the Tribunal considered again whether the February 1, 2014 amendments applied for a January 21, 2014 accident. The Applicant in this case “argued her right to attendant care benefits vested on the day of her accident and the amendment does not apply…because her accident occurred on January 21, 2014, which pre-dated the amendment, and the amendment cannot be applied retroactively. The Applicant argued it is well-established law application of amendments affecting vested or substantive rights retrospectively should be limited unless there is clear language by the drafters of the legislation.”

In response however, the insurer “argued the amendment does apply to this case for two main reasons. First, the legislature intended for this amendment to have an immediate and retrospective effect on all open cases and jurisprudence supports this intention. Second, the Divisional Court has held there are no vested rights under any section of the Schedule.” The Respondent relied upon the decision above for which judicial review was sought, that (on appeal) confirmed that the February 1, 2014 amendments did in fact apply. In that case, the Director’s Delegate “relied on an earlier appeal decision in Gan Canada Insurance Company v. Lehman, which was upheld at the Divisional Court. In Lehman, the [Director’s Delegate] held there are no vested rights under the Schedule because it would be in direct contradiction of section 268(1) of the Insurance Act.”

The Barnes decision was further noted to have spoken to the fact of it being “illogical to apply the concept of vested contractual rights to a relationship in which the parties have no direct input in the terms of their relationship, and the terms may be amended from time to time without their input or consent”.

The Tribunal, finding that the Applicant required around the clock care, determined the “amount of attendant care benefits payable is limited to $839.29, because that is the amount of economic loss sustained by her nonprofessional attendant care providers. If the Applicant were to hire a professional attendant care provider, she is entitled to $5,489.14, the full amount outlined in the Assessment of Attendant Care Needs Form (Form 1) dated April 10, 2018.”

The Barnes decision was just published to CanLII on March 20th and the LAT decision 17-005604 v. Wawanesa has yet to be published to CanLII – Many thanks to our subscribers who are behind the solution, making information available immediately that we can share.


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