Background of Steven Morrissey’s Case
Steven Morrissey was catastrophically injured in a motor vehicle accident in 2000. Following the accident, he applied for and received statutory accident benefits from Wawanesa Insurance. In April 2018, Mr. Morrissey sought increased attendant care benefits, retroactive to October 2015.
Wawanesa denied the request in part, relying on two primary grounds:
- Mr. Morrissey did not meet the alleged requirement of demonstrating “urgency, impossibility, or impracticability” when seeking retroactive benefits; and
- The attendant care expenses were not “incurred” as required under the 2010 Statutory Accident Benefits Schedule (SABS).
Court of Appeal Overturns LAT and Divisional Court Decisions
Wawanesa was successful before the Licence Appeal Tribunal (LAT) and on appeal to the Divisional Court. Mr. Morrissey then appealed to the Ontario Court of Appeal.
In Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602, Justice van Rensburg allowed the appeal, finding that both prior decisions were based on errors of law. The Court of Appeal ruled in Mr. Morrissey’s favour on each of the disputed issues.
No Precondition of “Urgency, Impossibility, or Impracticability”
On the first issue, the Court of Appeal considered the interpretation of section 42(5) of the 2010 SABS. Justice van Rensburg concluded that there is no statutory basis for requiring an insured person to justify a retroactive claim by reference to urgency, impracticability, impossibility, or similar considerations.
The Court held that imposing such a precondition was inconsistent with the language of the Schedule. As a result, the decision removes a barrier that had developed through earlier case law and clarifies that retroactive attendant care claims must be assessed on their merits, without an added explanatory threshold.
Application of the Definition of “Incurred”
The second issue required the Court to examine the interaction between the 1996 and 2010 SABS. Section 3(7)(e) of the 2010 Schedule restricts attendant care benefit claims to expenses incurred through a qualified provider or another person who has sustained an economic loss.
By contrast, the 1996 Schedule did not define the term “incurred.” Earlier case law interpreted this term more broadly, allowing attendant care benefits to be paid even where services were provided by an unqualified person, without proof of economic loss, or in some cases where services had not yet been supplied, provided the care was reasonably necessary and the amount could be determined with certainty.
After reviewing the transitional provisions and the relevant jurisprudence, the Court of Appeal determined that the definition of “incurred” found in the 2010 Schedule does not apply to claims arising from accidents that occurred before September 1, 2010. Instead, the established interpretation under the 1996 Schedule continues to govern such claims.
Impact of the Decision on Attendant Care Claims
The Court of Appeal’s decision reaffirms that, for accidents occurring prior to September 1, 2010, a claimant seeking attendant care benefits is not required to prove that the expense was actually incurred in the technical sense defined by the 2010 Schedule. It is sufficient to establish that the attendant care was reasonably necessary and that the cost can be determined.
This clarification provides important guidance for insurers, claimants, and practitioners across Ontario, and is expected to influence how retroactive attendant care claims are assessed going forward.
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