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Fridays With Rogers Partners

This morning, at our muffin meeting by videoconference, we discussed a Court of Appeal decision regarding a dispute over whether an insurer was required to pay benefits that were not incurred. We also discussed a Superior Court decision which granted an injunction to nurses at long-term care facilities to be permitted access to personal protective equipment and for the facilities to comply with safety protocols.

Statutory Accident Benefits – “Incurred”

Micah Pirk O’Connell discussed Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265. This was an appeal from the Superior Court of Justice regarding the definition of “incurred” under s. 3(7)(e) of the Statutory Accident Benefit Schedule, O. Reg. 34/10 (“SABS”).

Ms. Pucci was 22 years old when she was involved in a motor vehicle accident. At the time of the accident, she did not remember losing consciousness and her injuries appeared to be minor. In the following months, her condition degraded rapidly. Her symptoms indicated a traumatic brain injury. Ms. Pucci became unable to go to work or school and required assistance for her most basic needs.

At the time of the accident, Ms. Pucci was insured under a motor vehicle policy issued by Wawanesa. Ms. Pucci was immediately provided with income replacement benefits.

Wawanesa classified Ms. Pucci as being eligible for the maximum household expenses and attendant care benefits available under the SABS to individuals not catastrophically injured. At the time, these benefits were available for two years post accident, or 104 weeks.

In 2015, Ms. Pucci’s lawyer advised Wawanesa that a catastrophic determination was being sought. This would allow Ms. Pucci to recover expenses after the two-year mark.

There was a dispute over causation. While there was no suggestion that Ms. Pucci was fabricating or exaggerating her symptoms, experts agreed they met the criteria for a somatoform or conversion disorder. Ms. Pucci’s symptoms were related more to her psychiatric and emotional problems than to the physical sequela of the accident itself.

Dr. Ozersky, Wawanesa’s expert, wrote in his report that the accident was not “responsible” for Ms. Pucci’s condition.

The trial judge ultimately agreed with the plaintiff’s expert, Dr. Feinstein, who felt that but for the motor vehicle accident, Ms. Pucci would not have suffered the conversion disorder. This was not contested on appeal.

Wawanesa took issue with the trial judge’s reasoning with respect to the orders pertaining to housekeeping and attendant care benefits. The trial judge ordered the maximum rates available, and that the benefits were to run to the date of judgment and “thereafter as incurred”.

Wawanesa contended that while the trial judge properly limited payments for housekeeping and attendant care post-judgment to expenses “incurred”, she erred in failing to place the same limitation on any amounts owed in reference to those benefits for the pre-judgment period from February 2016 to March 2019.

On appeal, the court dealt with the narrow question of whether the trial judge had erred in holding that Ms. Pucci was entitled to payment of prejudgment household and attendant care benefits, regardless of whether or not she received the services.

The court found that the trial judge had erred in applying outdated law. For an expense to be “incurred” under s. 3(7)e of the SABS, the insured person has to have received the goods or services to which the expense relates.

Alternative Arguments

Counsel for Ms. Pucci submitted that, even if the trial judge erred in finding Wawanesa was obliged to pay the housekeeping and attendant care benefits, Wawanesa could not raise causation for the first time in response to Ms. Pucci’s request for a determination that she had suffered a catastrophic injury.

Three arguments were raised in support of this submission. First, by paying the expenses in the first two years post-accident, Wawanesa waived any right to assert that Ms. Pucci’s condition was not caused by the accident.

Second, by paying the first 104 weeks of benefits, Wawanesa is estopped from challenging causation at the catastrophic impairment stage of the process.

Third, s. 45 of the SABS precludes any causation inquiry at the catastrophic impairment determination; only the nature and extent of the impairment can be assessed at that stage.

The court found that s. 45 of the SABS does not compel the insurer to accept that the impairment in question was caused by the accident. The opening language simply sets out a precondition to the bringing of an application to determine the injury. Furthermore, if the payment of post-accident benefits by an insurer were taken to be an admission of causation, there would be a strong disincentive to pay those benefits in a timely manner.

The waiver argument also failed. There was no evidence to show that Wawanesa knew or had reason to believe that Ms. Pucci’s condition was not a result of her accident, but chose to waive reliance on the absence of a causal connection and make payments under the policy.

As to the claim for estoppel, the court held that a finding of detrimental reliance would be required. On the evidence, Ms. Pucci did not rely to her detriment on anything done by Wawanesa. Ms. Pucci was in fact able to advance a “full and ultimately convincing” case for her catastrophic impairment.

The fact-finding powers of appellate courts are rarely exercised. The court felt the record was not sufficient to permit a finding of fact on the reasonableness of Wawanesa’s reliance on Dr. Ozersky’s opinion. Accordingly, the appeal was allowed, the offending paragraphs of the trial judge’s order were set aside, and a new trial was directed on those issues.

Injunction to Protect Safety of Nurses

Matthew Umbrio addressed the case of Ontario Nurses Association v Eatonville/Henley Place, 2020 ONSC 2467. The applicants represent the Registered Nurses employed by the respondent Long-Term Care Facilities.

An application was brought seeking, on an urgent basis, mandatory orders addressing what were described as serious health and safety problems at the named facilities.

An injunction was sought requiring the respondent facilities to refrain from ongoing breaches of the Directives issued by the Chief Medical Officer of Health for Ontario. These Directives pertained to practices and procedures in Long-Term Care Facilities and to the supply of personal protective equipment (PPE) in those facilities.

The applicants requested that the respondents take any and all reasonable precautionary measures to ensure that the nursing staff receive health and safety protections as directed by the Chief Medical Officer.

They sought access to the PPE that they felt they required to protect themselves and the residents and for the proper implementation of the required administrative controls for the facilities. This included allowing the nursing staff to make PPE decisions at the point-of-care, rather than management of the facilities, and following isolating and cohorting protocols.

The four respondent facilities have all experienced outbreaks of COVID-19 and several allegations were made as against each respondent that they failed to provide N95 masks to their nursing staff when these masks were requested.

Further allegations were that several of the facilities had failed to follow isolation and cohorting protocols to separate ill residents from healthy residents.

Justice Morgan noted that, although this matter is primarily a labour dispute, and a labour arbitration will likely follow, it is an urgent matter than cannot wait 30 days, as would be required in the arbitral process.

Justice Morgan reviewed the relevant directives released by the Chief Medical Officer, Directives #3 and #5.

Directive #3 includes the required precautions to be taken in medical facilities, including active screening, ensuring appropriate PPE, masking, limiting essential visitor, and staff and resident cohorting.

Directive #5 states that Long-Term Care Facilities are to explore all available avenues to obtain and maintain a sufficient supply of PPE. The Directive also noted that, where a health care worker determines, based on the point-of-care risk assessment, that certain health and safety measures may be required in the delivery of care, the facilities must provide them with access to appropriate measures and will not unreasonably deny access to the appropriate PPE.

Justice Morgan interpreted these directives as giving final word on whether the delivery of care to a resident of a Long-Term Care Facility required specific health and safety measures to the nurse at the point-of-care, not management of the facility.

The facility is to facilitate access to whatever is appropriately required, but the balancing is left to the nurse at the point-of-care.

Justice Morgan recognized that Long-Term Care Facilities that are privately owned have economic and long-term imperatives of their own, but that the decision as to what PPE, and other health and safety measures, are required does not take those economic concerns into account in any direct way. The medical staff is to make the decision as to what measures are required.

Justice Morgan then evaluated the above circumstances through the lens of the test outlined in RJR MacDonald v Canada to determine whether or not to grant the requested relief.

The test has three parts: a) whether there is a serious question to be tried; b) whether the applicant will suffer irreparable harm; and c) whether the balance of convenience favors granting relief pending the final determination of the matter.

The applicants and the respondents agreed that there was a serious question to be tried, so Justice Morgan instead focused on the second two parts to the test.

The respondents argued that certain forms of PPE are in high demand and are limited. Allocating these scarce resources to one group may well lead to a shortage to another at-risk group.

The respondents also argued that the Chief Medical Officer directives addressed the interests of the public at large, equating their stance as being in the public interest, while framing the applicants’ stance as a private interest.

Justice Morgan noted the irony of this argument – the nurses are currently providing care to the most at-risk groups, sacrificing their personal interests to those under their care. Justice Morgan stated that the argument that the nurses’ quest for PPE is a narrow private interest sorely missed the mark.

Ultimately, it was held that, under the circumstances, no prejudice to the respondents outweighed the irreparable harm that the applicants could suffer. As a result, the requested relief was granted.

The respondents were ordered to provide nurses with access to N95 masks and other appropriate PPE when assessed by a nurse at point-of-care and the facilities were ordered to implement administrative controls such as isolating and cohorting.