Insurer not exempt from paying medical benefits that may be available through social assistance

An insurer cannot be exempted from paying supplemental medical benefits for long-term care under s.75.13 of the Statutory Accident Benefits Schedule (SABS) if those same benefits are “reasonably available” through an application for social assistance under Regulation 832 of the Nursing Homes Act.
In Allstate Insurance Company of Canada v. Da Rosa, the Ontario Divisional Court dismissed Allstate’s request for a judicial review of a decision by the Ontario Ministry of Health to deny Zita Da Rosa’s application for a reduction in her payments for long-term care.
Da Rosa suffered permanent and serious injuries, including brain injuries, in a 1995 motor vehicle accident. She was transferred to the O’Neill Centre, a long-term care facility, in February 1997.
Da Rosa’s health care benefits covered most of the costs of her care, but nursing homes in Ontario are permitted to charge monthly “co-payments” for accommodation and meals. Da Rosa applied to the ministry for a reduction of some or all of her co-payments based on financial need.
The ministry denied Da Rosa’s application, saying she had not demonstrated financial need because she had access to Allstate’s insurance benefits.
Allstate argued s.75(13) of SABS exempted it from paying Da Rosa’s medical benefits because her benefits were “reasonably available…under any insurance plan or law or any other plan or law” i.e. in this case, Regulation 832 of the Nursing Homes Act, which permits residents of a nursing home to apply to the ministry for a reduction in whole or in part of the co-payments they make for long-term care based on financial need.
The court upheld the ministry’s decision to deny Da Rosa’s application.
“If Da Rosa was a person of substantial financial means, it is clear she would not be eligible for a reduction under the Regulation,” the court ruled. “It is equally clear that in that situation, Allstate, as her insurer, would be liable under its policy to cover the co-payments.
“If Allstate’s position on this appeal is correct, then insureds would be required to pay insurance benefits for wealthy insureds, but not required to pay the same benefits for indigent insureds under policies and legislation that is exactly the same.
“That is an anomalous result and one which is not consistent with the object and intention of the legislative scheme, considered as a whole.”