Regulation capping benefits for attendant care services provided by a family member at economic loss sustained by that family member did not apply retrospectively.

[2015] O.J. No. 5571

2015 ONSC 6624

Ontario Superior Court of Justice

E. Quinlan J.

October 27, 2015

The plaintiff was in a motor vehicle accident and met the criteria for catastrophic impairment requiring 24 hour attendant care under the Statutory Accident Benefits Schedule, O Reg 34/10 (“SABS”). After the accident, a provision came into force amending s. 19(3) of SABS capping the attendant care benefits provided by a family member that were available (the “Regulation”). The plaintiff brought an application for a determination about whether the attendant care benefit cap applied, in light of the fact that the accident occurred before the Regulation came into force but the claim for attendant care services was made after.

The Court applied the rules of interpretation for whether legislation is to have prospective or retrospective effect and held that the Regulation did not apply retrospectively.

The Regulation did not simply declare the state of an earlier, uncertain law. Rather, it was a change to the law. The Regulation also interfered with substantive rights as it affected the content of the right to attendant care benefits. The Court distinguished this case from how changes to Ontario’s employment insurance benefits and disability support benefits are treated, in that, unlike those regulatory schemes, s. 2 of SABS provides that the benefits provided thereunder are a private contractual right. As such, the plaintiff’s right to payment of the attendant care benefit to which she was entitled had crystallized on the date of her accident. Finally, the presumption against retrospective application of the Regulation had not been rebutted as there was nothing on the record that demonstrated a clear legislative intent that the amendment was to apply retrospectively. The fact that the legislation was remedial did not necessarily mean that it was intended to apply retrospectively.