Malitskiy attendant care decision should not apply to accidents on or after April 14, 2018

Author(s): Darcy R. Merkur

November 23, 2021

Accident victims yet again find themselves worried about being able to access adequate care required for their safety and well-being, though accident victims involved in accidents on or after April 14, 2018 should  not  be impacted by this recent problematic attendant care decision.

In the recent case of Malitskiy v. Unica Insurance (2021 ONSC 4603), the Ontario Divisional Court ruled that accident benefit insurers must only pay the modest hourly rates set out in the legislation for professional attendant care services provided, at least when it comes to claims for accident that occurred  prior to April 14, 2018.

As some of these stipulated hourly rates are below minimum wage, the Court essentially concludes that the accident benefit insurer must merely contribute to the cost of attendant care services accessed.

Is that fair? How can accident benefit insurers honour their duty of good faith to their insured when they agree the claimant needs supervision for their safety while refusing to pay reasonable market rates to professional attendant care providers to provide that needed supervision? In fact, Guideline No. 01/18 specifies that, “Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.”

The system doesn’t make sense! Attendant care benefits MUST, by definition, allow the accident victim to get some degree of attendant care assistance.

Up until the Malitskiy decision, providers have been invoicing accident benefit insurers for attendant care services provided up to the calculated Form 1 monthly attendant care amounts. In other words, if the monthly attendant care needs were calculated at $1,200 per month in accordance with the Form 1, then the accident victim could access 40 hours of professional attendant care assistance at a rate of $30 per hour. But, the Malitskiy decision concludes that the insurer must only contribute rates like $10.25 per hour in accordance with the Guideline in place at that time, essentially eliminating the option of accessing ANY professional attendant care assistance. Instead, rather than having friends and family supplement some degree of professional attendant care assistance being provided, friends and family must now provide all of the needed attendant care and the insurer gets off the hook paying any attendant care benefits (or, even worse, the accident victim tries to get by without adequate care).

Where the accident victim is innocent and has a lawsuit, they can eventually claim and try to recover the additional debts owed to providers who can be partially paid by the accident benefit insurer in the interim. As part of such a lawsuit, the accident victim can also claim the value of the services provided by friends and family at market rates, but not all accident victims have lawsuits to rely on in that regard.

Importantly, for accidents on or after April 14, 2018, Bulletin No. A-03/18 released by the Superintendent of Financial Services confirms that the calculated monthly attendant care amount (for accidents on or after April 14, 2018) can be accessed in full by the accident victim from their insurer without regard to the mandated modest hourly rates set out, so long as the hourly rates incurred are reasonable of course.

In Malitskiy, the accident dates back to March 16, 2014, and the focus was on a previous Guideline that expressed a different approach to the calculation of attendant care rates.

Up until Malitskiy there was the view that the April 14, 2018 Guideline applied to all ongoing claim, but the Divisional Court unfortunately decided otherwise.

Darcy Merkur is a highly regarded Ontario trauma lawyer helping accident victims such as pedestrians, cyclists and motorists, who have sustained catastrophic injuries. 

Darcy is the first lawyer in Canada to be qualified as a Certified Brain Injury Specialist by the Brain Injury Association of America. In addition, Darcy has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, is listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada, is ranked AV Preeminent® in Martindale-Hubbell ® and is a partner at Thomson Rogers, one of Ontario’s Top 10 Personal Injury Law Firms as selected by Canadian Lawyer Magazine, and ranked one of the Best Law Firms in Canada by The Globe and Mail. 

Darcy can be reached at 416-868-3176 or by EMAIL.

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