[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
