Div Crt Resets Clock on Attendant Care Interest

The Ontario Divisional Court has allowed an insurer’s appeal in a case deciding when interest begins to run on attendant care benefits that are found to be owing under the SABS.

In Grigoroff v Wawanesa, the plaintiff was involved in a motor vehicle accient on December 7, 2001. She retained occupational therapists and case managers who prepared assessments of her attendant care needs on the form required by the SABS (Form 1). Invoices were prepared pursuant to these assessments, all of which the insurer paid in full.

In early 2009, the plaintiff asked an occupational therapist to perform a “retro-active attendant care assessment” to, among other things, re-examine the attendant care assessments that had previously been performed and submitted by her for the period from the date of the accident to July 27, 2003. Consequently, on February 16, 2009, a retro-active attendant care assessment prepared on Form 1 was submitted to the insurer.

The Defendant did not pay the retro-active assessment. At trial, the jury awarded the Plaintiff an amount in excess of the amount that the Defendant had paid to the Plaintiff for the period from the date of the accident to July 27, 2003.

The insurer paid the amount owing, together with interest, from February 16, 2009, the date that the plaintiff first submitted a Form 1 claim for these amounts. The plaintiff disputed the insurer’s starting point for the calculation of interest and claimed interest from February of 2002 (as the jury award of monthly attendant care for the period from December 7, 2001 to January 19, 2002 was zero). The difference in the respective calculations amounted to $46,801.

The trial judge accepted the Plaintiff’s position as to the calculation of interest.

The determination on appeal turned on when, under the SABS, the payment of a benefit is “overdue”.

The court reviewed the legislative framework and noted that a claim for attendant care benefits is not due to be paid until 10 days after the insurer receives a Form 1:

In the case at bar, an insurer is not required to pay a claim for attendant care needs until 10 business days after it receives an assessment of attendant care needs. In the case of the disputed benefits, that did not happen until February of 2009, when a revised assessment of attendant care needs was filed for the period from January 20, 2002 to August 1, 2003. Under s. 46(1) of the SABS, a payment is not overdue unless “the insurer fails to pay the benefit within the time required” under s. 39, which is 10 business days after the receipt of an assessment of attendant care needs. Further, s. 39(3) specifically provides that an insurer is not required to pay attendant care benefits before “an assessment of attendant care needs that complies with subsection (1) is submitted to the insurer.

Accordingly, the Divisional Court held that a payment for attendant care benefits is not overdue until 10 business days have elapsed after a Form 1 assessment of attendant care needs is received by the insurer. It follows that interest does not begin to accrue until the payment is overdue.

Although this case dealt with the Bill 59 SABS, the decision will still apply to interest calculations under section 51 (1) and (2) of the existing SABS, as the wording is for the most part similar to the wording in section 46 (1) and (2) of the Old SABS.

The decision should also apply to interest calculations for other benefits (not just attendant care benefits). In each case, the task is to determine the day when the insurer became obligated to start paying the disputed benefit. That will be the day that the interest clock starts ticking.

See Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585 (CanLII)