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Insurance (Auto) - Attendent Care (2). Goovaerts (Litigation Guardian of) v. Motor Vehicle Accident Claims Fund
In Goovaerts (Litigation Guardian of) v. Motor Vehicle Accident Claims Fund (Ont Div Ct, 2026) the Ontario Divisional Court allowed a SABS dual appeal-JR, this brought against a LAT "determination of attendant care benefits ('ACBs')".
Here the court considers the law of auto insurance 'attendent care benefits' (ACBs):[29] The starting point for determining the purpose and nature of ACBs under the 1996 SABS is the Court of Appeal for Ontario’s pronouncement in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3d) 438, leave to appeal refused, [2020] S.C.C.A. No. 39017. Hourigan J.A. confirms the principle that the Statutory Accident Benefit Schedule is consumer protection legislation and “is supposed to maximize benefits”: Tomec, at paras. 42-43. At para. 42, the Court of Appeal adopts the purpose of no-fault benefits for catastrophically injured persons as described in Arts (Litigation Guardian of) v. State Farm Insurance Co. (2008), 2008 CanLII 25055 (ON SC), 91 O.R. (3d) 394, at paras. 14, 16:The legislature’s definition of “catastrophic impairment” is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive.
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The SABS are remedial and constitute consumer protection legislation. As such, it is to be read in its entire context and in their ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. The goal of the legislation is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial. [30] I must interpret and apply the applicable attendant care provisions in the 1996 SABS in this context.
[31] Because Kevin’s accident occurred on June 12, 1999, the 1996 SABS govern the benefits available to him. In 2010, O. Reg. 34/10 (the “2010 SABS”) replaced the 1996 SABS. The 2010 SABS apply to accidents occurring after August 31, 2010. However, s. 68.1 of the 2010 SABS provides that the 1996 SABS, in the form it read immediately before its revocation on July 3, 2010, continues to apply to accidents that occurred between November 1, 1996, and September 1, 2010.
[32] Section 16(2) of the 1996 SABS defines the purpose of ACBs. It provides as follows:16(2) The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,
(a) services provided by an aide or attendant; or
(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital. [33] Section 16(4) provides that the monthly amount payable as an ACB shall be determined in accordance with Form 1.
[34] Under the 1996 SABS, an insured does not need to receive or pay for attendant care to satisfy the “incurred” requirement in s. 16(2). It is sufficient that the services are reasonably necessary and that their amount can be determined with certainty: Morrissey v. Wawanesa Insurance Co., 2024 ONCA 602, 500 D.L.R. (4th) 143, at paras. 73-74; Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689, at paras. 46-52; and Pucci v. Wawanesa Mutual Insurance Co., 2020 ONCA 265, 2 C.C.L.I. (6th) 165 at paras. 35-36.
[35] In Morrissey, the Court of Appeal confirmed that the subsequent definition of “incurred” in s. 3(7)(e) of the 2010 SABS, which requires that goods or services be received or paid for, does not apply to accidents occurring before September 1, 2010. As a result, the fact that Kevin did not receive or pay for the level of attendant care he claims does not mean he did not need the services. It is not a basis to deny the ACBs if the services are reasonable and necessary.
[36] The Court of Appeal further held that an insurer cannot reject a retroactive claim for ACBs solely because the insured did not explain the delay in submitting a Form 1. An insured may submit successive Form 1s: Morrissey, at para. 44.
[37] To determine the appropriate level of ACBs, the LAT adjudicator was required to consider the nature and full extent of Kevin’s impairments, and the evidence of attendant care needs arising from those impairments and limitations, applying the governing legal principles. ....
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[51] Prior LAT decisions hold that an ACB is available where accident-related injuries render a person unable to appropriately respond to an emergency, making supervisory care necessary. This principle informs the assessment of the appropriate level of ACBs. The adjudicator departed from these authorities and did not justify his departure based on the evidence in this case, which renders the decision unreasonable: Vavilov, at paras. 129, 131.
[52] In N. (T.) v. Personal Insurance Co. of Canada, 2012 CarswellOnt 10008 (F.S.C.O.), at para. 96, the arbitrator held that a person who is alone during the day or evening may nonetheless require care and supervision. A person with a significant brain injury may respond to some emergencies on some occasions, but their unpredictability may render them unsafe and unable to respond appropriately to others.
[53] At paras. 95-96 and 106 of N. (T.), the arbitrator stated that 24-hour supervision does not require consistent one-on-one supervision. Instead, having a person available or on-call day and night constitutes a need for 24-hour per day supervision, regardless of whether someone is physically present at all times. Further, assistive devices such as smoke detectors, a lifeline button and cooking devices with automatic shutoffs did not address the fundamental problem of the applicant’s “unpredictability, impulsivity and impaired judgment”: N. (T.), at para. 106. Moreover, they do not replace the need for constant monitoring and assistance to ensure the applicant did not harm himself or be harmed by others.
[54] The same principles were applied in M. (S.) v. Intact Insurance Co., 2013 CarswellOnt 15845 (F.S.C.O.), at para. 57, where the arbitrator states:Once it has been established that, due to cognitive or behavioural impairments (caused by an accident), an applicant can no longer appropriately respond to an emergency or otherwise needs custodial care due to changes in behaviour, it seems reasonable to me to start with the assumption that round-the-clock care will be required unless there is evidence to the contrary. By definition, one cannot predict when an emergency will arise. Fortunately, emergencies tend to occur relatively rarely but, if they could be predicted with precision, they would not be emergencies at all. [55] In Vaillancourt v. The Guarantee Company of North America, 2023 CanLII 9261 (ON LAT), the adjudicator confirmed that, in assessing the level of attendant care benefits, it is important that occupational therapists consider the person’s ability to respond to emergency situations. . Hamad v. Cooperators General Insurance Company
In Hamad v. Cooperators General Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a LAT SABS JR, this against an "application for attendant care benefits on the basis that he had failed to prove economic loss sustained by his family members who provided attendant care to him".
Here the court focusses on the requirement that attendent care be actually incurred before payment:[4] The applicant acknowledges that the LAT did not misinterpret the SABS. Rather, he takes issue with the applicable framework for attendant care benefits that requires that attendant care benefits be ‘incurred.’ He submits this results in an absurd outcome because the calculation has no bearing on what the applicant needs and because the applicant lacked resources to obtain professional care. He submits that this framework is inconsistent with the “consumer protection mandate of the SABS” and its application resulted in an error in law, is inequitable and unreasonable.
[5] The applicant seeks an order quashing the LAT’s decision and confirming his entitlement to attendant care benefits. In the alternative, he seeks an order that the matter be remitted to the LAT to be decided by a different adjudicator along with a declaration that the requirement that attendant care benefits be “incurred”, in accordance with s. 3(7)(e)(iii) of the SABS, is not applicable to the determination of entitlement to such benefits and an order prohibiting the insurer from denying a claim for attendant care benefits on the basis of the Schedule regime that currently applies.
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Legislative Framework
[8] Section 3(7)(e) of the SABS provides:(7) For the purposes of this Regulation,
(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless, (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person; The Decision October 31, 2023
[9] The LAT held it would be an error in law for the LAT to ignore the requirements set out in the Schedule. The LAT was aware of no exceptions to s. 3(7)(e) granting the LAT jurisdiction to ignore the economic loss requirement. The LAT found that the Schedule reflects a clear intention on the part of the legislature to compensate non-professional attendant care providers only for their economic loss.
[10] The LAT acknowledged that the applicant’s family members likely spent many hours providing attendant care to the applicant since his 2021 accident. However, the applicant had not met his onus to establish economic loss on a balance of probabilities.
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Analysis
[12] The applicant accepts that the LAT did not misinterpret s. 3(7)(e). The applicant concedes that for a non-professional attendant care provider, the section is clear that attendant care costs cannot exceed the person’s economic loss. Rather, he takes issue with the law itself regarding attendant care benefits. He argues that there is a conflict of laws between the purpose of the SABS as consumer protection legislation and s. 3(7)(e) that must be resolved in favour of the consumer.
[13] Generally a conflict of laws analysis is engaged in multi-jurisdictional private law disputes and falls outside a statutory interpretation exercise. The applicant was not able to find any caselaw in support of his argument that conflict of laws applies in this situation. We find no merit to this argument.
[14] The applicant agreed that what he was asking us to do was to re-write the legislation to create a fair, reasonable and equitable result. He relies on Tomec v Economical Mutual Insurance Company, 2019 ONCA 882 at para. 45: “Given the choice of a statutory interpretation that furthers the public policy objectives underlying the SABS and one that undermines it, the only reasonable decision is to side with the former.” The problem with the applicant’s reliance on para. 45 of Tomec is that he is not making a statutory interpretation argument. There is no ambiguity in the legislation. Rewriting the legislation to create what the applicant submits is a more reasonable or non-absurd result is not a justiciable issue. An application for judicial review or appeal is not the appropriate forum or procedure for seeking such relief. The applicant has not raised a constitutional issue. Where it is conceded that there is no ambiguity in the words of s. 3(7)(e), the applicant’s disagreement with legislation that the LAT has reasonably interpreted and applied is not a basis for quashing the Decision. . Luluquisin v. Aviva Insurance Co. of Canada
In Luluquisin v. Aviva Insurance Co. of Canada (Div Court, 2024) the Divisional Court allowed a claimant's LAT SABS appeal.
Here the court sets out 'attendent care' SABS benefit provisions:(a) Claim for Attendant Care Benefits
The Statutory Scheme
[7] Mr Luluquisin was deemed catastrophically impaired by his insurer. Section 14 of the SABS provides:Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
1. Medical and rehabilitation benefits under sections 15 to 17.
2. If the impairment is not a minor injury, attendant care benefits under section 19. Mr Luluquisin’s impairment is not a “minor injury” – it is catastrophic. Therefore, the insurer is liable to pay attendant care benefits to Mr Luluquisin in accordance with section 19 of the SABS.
[8] Section 19(1)(a) of the SABS provides:(1) Attendant care benefits shall pay for all reasonable and necessary expenses,
(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Fixing Long-Term Care Act, 2021 or a chronic care hospital; [9] There are two aspects to the test under s.19(1)(a) that are material to this appeal: (i) whether the claimed expenses are “reasonable and necessary”, and (ii) whether those expenses “are incurred by or on behalf of” Mr Luluquisin.
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