Top 5 Civil Appeals From The Court Of Appeal

1. Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804 (Laskin, MacFarland and Roberts JJ.A), November 1, 2016

2. Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 (Hoy A.C.J.O., Benotto and Huscroft JJ.A.), November 3, 2016

3. VanEvery v. VanEvery-Albert, 2016 ONCA 817 (Blair, Epstein and Huscroft JJ.A.), November 3, 2016

4. Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896 (Cronk, Blair and Pardu JJ.A.), November 28, 2016

5. McLaughlin v. McLaughlin, 2016 ONCA 899 (Simmons, Pepall and Huscroft JJ.A.), November 28, 2016

1. Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804 (Laskin, MacFarland and Roberts JJ.A), November 1, 2016

   At issue in this appeal was when interest starts to accrue on amounts owing to an insured person for statutory benefits under the SABS, and, specifically, when additional catastrophic attendant care and home maintenance benefits become overdue so that interest begins to accrue on those benefits. Interest payable in statutory accident benefits disputes is significantly higher than in other types of disputes, so the timing on when interest starts to be payable can result in vastly different exposures for an insurer.

   The respondent, Anna Marie Van Galder, was badly injured in a motor vehicle accident in January 2004. Since the date of the accident, Van Galder has been unable to walk. She eventually required two amputations.

   The appellant paid the respondent attendant care and housekeeping/home maintenance benefits for non-catastrophic cases until January 2006, 104 weeks following the accident. The insurer took the position that the respondent's medical documentation and assessments did not indicate that she had sustained a catastrophic impairment within the meaning of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 under the Insurance Act, R.S.O. 1990, c. I.8. The appellant further claimed that it had no obligation to continue paying these benefits because the respondent had not made an application within the 104 weeks following her accident for a determination as to whether she was catastrophically impaired.

   Although Van Galder did not make an application for a catastrophic impairment determination within the 104 week period following her accident, she did make an initial application in February 2004 for statutory benefits within the statutory deadline and submitted to numerous assessments. Later, between 2007 and 2012, she made four applications for a determination that she had suffered a catastrophic impairment as a result of the accident.

   Following the fourth such application, the appellant had its medical examiners evaluate the appellant's injuries and, pursuant to their reports, accepted that the respondent had indeed suffered a catastrophic impairment within the meaning of the SABS. The insurer accordingly paid the respondent a lump sum for the additional attendant care benefits owing retroactive to August 2005 and for housekeeping/home maintenance benefits back to January 2006. It paid some interest on these amounts but refused to pay any interest from August 2005 on the attendant care benefits and from January 2006 on the housekeeping/home maintenance benefits, claiming that the additional amounts were not overdue absent a catastrophic injury application and determination, which did not occur until July 2013.

   The application judge found that the respondent had suffered a catastrophic impairment at the time of her accident and held that it would be inequitable to deprive her of interest on the additional attendant care and housekeeping/home maintenance benefits. He accordingly ordered the appellant to pay interest in the amount of two percent per month, compounded monthly, on attendant care benefits from August 2005, and on housekeeping/home maintenance benefits from January 2006 to date.

   The appellant's appeal turned on the question of when the additional catastrophic attendant care and housekeeping/home maintenance benefits that were payable to the respondent became overdue so that interest began to accrue.

   Writing for the Court of Appeal, Roberts J.A. noted that under the SABS, interest is payable on overdue amounts owing to an insured person, and that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required.

   The appellant argued that the additional payments were not due – and therefore not overdue – until the respondent made an application for a catastrophic impairment determination and the...