Court dismisses appeal on declaratory benefits

The Ontario Court of Appeal has dismissed an insurer’s appeal, ruling that a trial judge did not overstep the SABS when granting declaratory benefits.
In Monks v. ING Insurance Company of Canada, Suzanne Monks was rendered an incomplete quadriplegic following three separate auto accidents. ING Insurance Company of Canada was her auto insurer when the third and final accident took place in 1998.
ING paid Monks statutory accident benefits in respect of the third accident for roughly 3.5 years, on a without-prejudice basis, wrote Ontario Court of Appeal Justice Eleanore A. Cronk.
After 3.5 years, it terminated any further payments and sought repayment of some payments already made on the basis that Monks was not “catastrophically impaired” within the meaning of SABS. Monks sued ING, claiming declaratory relief and an award of aggravated damages.
A two-month trial at the Superior Court found Monks to be catastrophically impaired as a result of the third accident, and she was entitled to statutory accident benefits as such. The trial judge also granted specific declarations regarding her entitlement to income replacement benefits, past and ongoing medical, rehabilitation and attendant care benefits, and housekeeping and home modification expenses, Cronk noted.
In addition, the trial judge awarded Monks Cdn$50,000 in aggravated damages, plus interest and costs, and a Cdn$75,000 risk premium for her counsel.
ING appealed on several grounds. In particular, it challenged the grant of declaratory relief relating to ongoing accident benefits and the trial judge’s awards of aggravated damages and a $75,000 risk premium for Monks’ counsel.
But Cronk ruled the trial judge had “crafted the declarations in question to ensure that the quantum of any particular future benefits claim remained to be determined in accordance with the SABS and to preserve ING’s right to seek to establish that a benefit claimed in the future was no longer reasonable and necessary.”
ING argued at the end of trial that if a declaration was granted regarding Monks’ entitlement to ongoing benefits, the relief allowed should be limited to a declaration of entitlement, without any determination of the amount of the benefits in question.
“That is precisely what the trial judge did,” Cronk wrote. She set aside the risk premium awarded by the trial judge, but in all other respects dismissed the appeal.