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The Ontario Court of Appeal largely upheld a Rule 21 motion to strike, but allowed Lucia Derenzis leave to amend her breach of good faith claim against Gore Mutual Insurance Company.
The Court allowed the appeal: s.42(5) of the 2010 Schedule governs only the timing of payments and does not impose a precondition of demonstrating urgency, impossibility or impracticability to submit a retroactive Form 1; the definition of 'incurred' in s.3(7)(e) of the 2010 Schedule does not apply to claims arising from accidents before September 1, 2010 given the transitional provisions, so the broader interpretation of 'incurred' under the 1996 Schedule governs entitlement; accordingly Mr. Morrissey is entitled to the $451.50 monthly allowance retroactive to October 2015 if the parties agr…
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The words in ss.14 and 19 of the SABS are not ambiguous: HST paid on taxable attendant care services is a 'reasonable and necessary' attendant care expense and therefore forms part of 'attendant care benefits' and is included within the statutory maximums ($6,000 per month and $1,000,000 total) as those limits applied to accidents before the June 3, 2019 amendment.
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The trial judge erred by applying pre-2010 caselaw construction of 'incurred' instead of the statutory definition in s.3(7)(e) SABS-2010 and by deeming expenses incurred under s.3(8) based on a material misapprehension of delay evidence; the appellate record lacks sufficient evidence to determine whether the insurer unreasonably withheld payment, therefore paragraphs 3 and 4 of the trial judgment are set aside and a new trial on those issues is ordered.
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Economic loss in s.3(7)(e) of SABS-2010 is a threshold requirement for entitlement to attendant care benefits for family caregivers but is not a mechanism to prorate the amount payable; where a family caregiver has sustained an economic loss attendant care benefits are payable for all reasonable and necessary care detailed in a valid Form 1 subject to the caps in s.19(3) and insurer safeguards under ss.42 and 33.
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The court held that subsection 50(10) of the SABS prescribes mandatory fixed hourly rates to be used in Form 1 and that subsection 50(12) does not permit insured persons to dispute those hourly rates; insureds may only dispute the assessor's determination as to number of hours or level allocation. Therefore the plaintiff is prohibited from contesting the hourly rates in s.50(10).
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