Insurer refuses to fund attendant care for man deemed catastrophically impaired
In a vehicular collision case, the Ontario Superior Court found the delay excusable because both parties’ counsel and not the plaintiff himself caused it, a factor the court considered especially significant where a brain injury catastrophically impaired the plaintiff.
In Ainsley v. Allstate Insurance Company of Canada, 2025 ONSC 6144, the motor vehicle collision involving the plaintiff occurred on May 31, 2006.
The defendant insurance company acknowledged that the plaintiff had a brain injury and underwent hospitalization and time in a rehabilitation facility due to the collision. The accident benefits insurer declared him catastrophically impaired.
Later, an occupational therapist found that the plaintiff no longer needed attendant care services. Thus, the insurer refused to fund these services.
The plaintiff retained counsel in late 2013. He applied for mediation to challenge the insurer’s denial of attendant care services and other denials. The mediation, held on Dec. 3, 2015, failed to resolve the disputed issues.
On Feb. 26, 2016, the plaintiff filed a statement of claim. He alleged that he still required caregivers to enable him to manage his affairs and make decisions. He requested the following from the insurer:
On Feb. 5, 2021 and Jan. 26, 2022, the plaintiff obtained two orders extending the time to set down the action for trial by Jan. 19, 2022 and Jan. 16, 2023, respectively. The parties set down the action for trial on Jan. 9, 2023.
In September 2024, the lawyer carrying the insurer’s file left his law firm. On Nov. 14, 2024, the parties attended a pre-trial conference, which did not resolve the matter.
In affidavit evidence, the plaintiff alleged that his new lawyers only received his file from his former counsel last January.
The insurer moved to dismiss the plaintiff’s action for delay. The plaintiff’s cross-motion sought to restore the action to the trial list and compel the insurer to attend examinations for discovery.
The Ontario Superior Court of Justice restored the plaintiff’s action to the trial list, declined to dismiss the action for delay, and refused to require the insurer to attend an examination for discovery.
First, the court found an inordinate delay. The court noted that the plaintiff had filed the statement of claim nine years prior, had only recently served expert reports, and had yet to examine the insurer for discovery.
However, the court did not deem the plaintiff solely responsible for the delay, given that the insurer’s former counsel acted insufficiently and contributed significantly to the delay. The court noted that the plaintiff’s prior counsel repeatedly asked the insurer’s former counsel to provide a statement of defence and receive a sworn affidavit of documents.
Second, the court deemed the delay excusable. The court attributed the delay in moving the litigation forward to counsel for both the plaintiff and the insurer, with the insurer’s counsel being the primary cause of the delay.
The court noted that the plaintiff reached out to the insurer’s counsel three months after the matter’s striking from the trial list in December 2024 to agree on dates for a motion to restore the action to the trial list.
Third, given the action’s circumstances, the court ruled that the plaintiff clearly meant to proceed with the litigation upon issuing the statement of claim. The court added that dismissing the action would irrevocably prejudice the plaintiff, while delaying it did not result in non-compensable prejudice to the insurer.
Fourth, the court determined that permitting the plaintiff to examine the insurer’s representative would risk even more delay in restoring the action to the trial list, which the court could not tolerate, given the litigation’s already lengthy delay.
The court concluded that the plaintiff forfeited his right to examine the insurer for discovery because he failed to explain why he had yet to conduct such an examination in proceedings that were over nine years old.
