On October 27, 2014 Quinlan, J. rendered a decision in Davis v. Wawanesa Mutual Insurance Company, 2015 ONSC 6624.  The Plaintiff sought a determination before trial with respect to whether section 2 of Ontario Regulation 347/13, effective February 1, 2014, which amended the Statutory Accident Benefits Schedule, Effective September 1, 2010, is to be applied retroactively.  Specifically, the issue was whether the change that limited attendant care benefits payable to the lesser of the amount of economic loss sustained by a non-professional service provider or the Form 1 amount applies to an accident that occurred prior to February 1, 2014.

The Plaintiff was involved in a motor vehicle accident on November 15, 2013 and was rendered catastrophically impaired.  A Form 1 was submitted on her behalf by an occupational therapist on January 31, 2014 which confirmed she required $7,790.15 in attendant care benefits per month.  She was discharged from the hospital on February 6, 2014 and chose to live with her son, James, and daughter-in-law, Hilary. The plaintiff chose to have family members instead of a professional service provider complete her attendant care needs.

Hilary took a leave of absence from her job as a financial analyst as of March 10, 2014 in order to care for her mother-in-law.  Wawanesa paid the attendant care in accordance with Hilary’s lost wages ($4,061.16 per month).  The plaintiff was also advised by Wawanesa that if she retained the services of a professional service provider to complete the respite attendant care, the difference up to $6,000 per month would be paid.

The plaintiff brought this action claiming that Ontario Regulation 347/13 does not apply to accidents that occurred prior to February 1, 2014.

Quinlan, J. held that the amendment to attendant care benefits under Regulation 347/13 is not a clarification of the law but instead a substantive change to the plaintiff’s entitlement to attendant care benefits (as it directly affects the amount of attendant care she is entitled to receive).  Therefore, the presumption against restrospectivity would apply.  There was nothing put before Quinlan, J. that amounted to a clear legislative intention that the amendments under Regulation 347/13 are to apply retrospectively and therefore it was found that they only apply to accidents that occur after February 1, 2014.

Wawanesa was ordered to pay the full amount of the Form 1 (subject to the $6,000 per month limit). 

While not a surprising decision, insurers that have taken the position that the amendments apply retroactively will want to read it and adjust their claims handling accordingly