Van Galder v. Economical Mutual Insurance Company

[11] There is no issue that the respondent was seriously injured in a motor vehicle accident on January 20, 2004. She suffered significant physical injuries to both legs. Since the date of the accident, she has been unable to walk unaided and is now wheelchair-bound. Subsequent complications and surgeries that followed over the next several years resulted in the amputation of her lower right leg and left her with chronic pain.

[93] The appellant submits that the application judge’s order has the opposite effect: it “incentivizes” an insured person to delay his or her catastrophic application as long as possible in order to accrue tremendous amounts of interest in the interim. According to the appellant, this would also create difficulty for insurers in properly establishing reserves for claims files open beyond the 104 (or 260)-week period.

[94] These arguments were submitted to and rejected by the application judge. I also would not give effect to them.

[95] First and foremost, it defies common sense that a catastrophically impaired insured person would delay making an application that would open the door to desperately needed enhanced catastrophic benefits. I agree with the application judge’s observations in this regard:

A catastrophic injury is a serious one; catastrophically injured people require assistance to perform their activities of everyday living and to cover medical expenses. The nature of these expenses are such that they cannot be forgone by a victim or denied by an insurer, with the aim of accruing or avoiding costs.

[96] There is no question that the SABS requires an insured person to make the necessary applications and provide the required information to an insurer. However, these obligations must be understood in the context of a catastrophic impairment. The nature of many catastrophic impairments may necessarily render a catastrophically impaired insured person incapable of navigating and completing the complicated and detailed application process for a catastrophic impairment determination. As the application judge found, this is clearly what happened in the present case.

Source/more: 2016  ONCA 804 (CanLII), < http://canlii.ca/t/gvd47