January 5, 2007 by Canadian Underwriter
Attendant care hourly rates in SABS are fixed by legislation and therefore cannot be changed by means of litigation, the Ontario Court of Appeal confirmed in a recent decision.
Siding with the insurer in McEwen v. ING Halifax Insurance Company, the appeal court reversed a decision by a motions judge, who held that a 39-year-old woman suffering from a severe brain injury after a 1994 vehicle accident was “entitled to dispute the rates to be paid by the defendant insurer for Attendant Care Benefits in accordance with s. 50(12) of the [SABS] legislation.”
The motions judge agreed the plaintiff was entitled to be paid for necessary services at hourly rates higher than those prescribed in s. 50(10), up to the maximum permitted under the statute which is Cdn$10,020.00 per month.
In doing so, the motions judge noted an unusual feature of the legislation upon which attendant care rates are based. He wrote: “The fact of the matter is that an injured person such as the plaintiff, who suffers severe brain damage and qualifies under s. 47(7) for the maximum monthly amount for an attendant care benefits of $10,020, can never reach that maximum when the rates to be paid for attendant care benefits are calculated in accordance with [the hourly rates listed in] Form 1.” [Form 1 is a worksheet that, by law, must be used to calculate attendant care benefits.]
Nevertheless, the Appeal Court reversed the decision of the motions judge, noting that while the necessary number of hours of attendant care might be subject to debate, the hourly rates for different injury categories are clearly outlined in the legislation.
SABS contains three categories of care, each one defined by the severity of the injury. Level 1 care is paid at the rate of $8.75 per hour, Level 2 at the current minimum hourly wage and Level 3 at $14.00 per hour.
“I acknowledge that there is a gap in the legislation and it appears to be a serious oversight that Level III care in Form 1 includes only complex physical/health care needs with no category for psychological needs,” Ontario Court of Appeal Justice Joan MacFarland wrote for a panel of three judges. “However, as with the court in Monachino, I am charged with interpreting the legislation and not with amending it.
The hourly rates set out in 50(10) are fixed rates, MacFarland concluded, citing a court decision in a separate matter, “and there is no discretion for an assessor to increase or reduce those rates.”