It has been some time since the Accident Benefit Reporter has updated its readers with respect to home modifications for accident victims pursuant to Section 15 of the Statutory Accident Benefits Schedule. Section 15 provides that all reasonable and necessary rehabilitation expenses are to be paid to reduce or eliminate the effects of an accident-related disability. Section 15(5)(i) of the SABS provides that an insurer may be required to purchase a new home for the insured if it is more reasonable to purchase a new home to accommodate the insured person’s needs than renovate his or her existing home. However, Section 15(8) of the SABS states that the amount of the benefit for the purchase of a new home shall not exceed the value of the renovations to the insured person’s existing home that would be required to accommodate his or her needs.
On its face, the legislation provides adequately for insureds who own their own pre-accident homes, which can then be modified to accommodate their post-accident needs. However, challenges arise when a home cannot realistically be modified to accommodate ithe post-accident functional needs of an insured person.
Consider a situation in which a person lives in a rented basement apartment and requires the use of a wheelchair after being seriously injured in a motor vehicle accident. At first blush, a benefit would be available only to modify the existing rental accommodation that is owned by someone else, not to purchase a new home to be owned by the accident victim. However, in order to build a ramp or elevator so the insured can gain access to his or her apartment, the owner of the property would have to consent to these modifications. That consent may not be forthcoming or may only be forthcoming at a high price. Owners also may insist that the residence be restored to its original condition upon the insured’s departure, thereby necessitating not only the calculation of modification costs and “consent costs” but also the costs of restoring the property upon the insured’s departure.
Perhaps an insured owned a one-bedroom condominium pre-accident and now requires the assistance of a 24-hour attendant due to his or her injuries. In order to modify the insured’s condominium to create a living space for an attendant, the condominium unit next door likely would have to be purchased and amalgamated with the insured’s unit to create a larger, single living area with extensive modifications. Sufficient financial incentive would have to be offered to the adjacent owner in order for them to sell their unit and even then, the condominium association may not approve the extensive renovations required.
Finally, consider the situation in which an injured person resides in a house with a narrow one-car driveway with steps leading up to the front door. That person will require a modified van to accommodate a wheelchair and, therefore, also would require an oversized sheltered garage with level, paved direct ramp access to the house, to enable smooth transitions into and out of the van. This could be extremely costly to build even if an appropriate building permit and/or the approval of a local municipal by-law committee were obtained.
In each of the above scenarios, the true cost of renovation may well exceed the cost of purchasing an appropriately modified home for the accident victim.
State of the Law
In 2002, a motion was brought before the court by an insured in Wynn v Belair Direct, seeking an urgent Order that the insurer pay for the purchase of a new home, to accommodate her housing needs after a 2000 motor vehicle accident rendered her quadriplegic. In the insured’s existing rental apartment, she was unable to access the bathroom or the second floor, among other difficulties. An occupational therapist submitted that the insured’s existing living situation would “not enable her to maximize her potential with regard to independence and life satisfaction.” After reviewing the evidence on possible housing options in the insured’s area, Justice Pedlar decided that it was “more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person’s existing home.”
Justice Pedlar ruled that in the insured’s situation, renovations to her existing home were not reasonably possible, therefore the analysis under section 15(8) could not be carried out and, as such, section 15(8) did not apply. Justice Pedlar ordered the insurer to approve the funding of a new home for the insured at a cost of approximately $250,000.00.
The insurer then brought a motion seeking leave to appeal Justice Pedlar’s decision and seeking a stay of Justice Pedlar’s order until the appeal was heard. In granting the motion, Justice Lalonde stated that an analysis of the cost of renovating the insured’s existing home must always be taken into account in deciding how to best meet the living needs of the insured person after an accident. Justice Lalonde stated that in section 15(8) “there is a statutory requirement that obliges the defendant to determine what it will cost to renovate the plaintiff’s home…even though the rented premises of the plaintiff will not be renovated.” The case settled before the appeal proceeded and as such, it is arguable that if the pre-accident housing situation of a person cannot be modified to facilitate their post-accident impairments, the insurer may be required to fund the cost of a new home without even taking into account the costs of renovating the insured’s pre-accident residence.
Alternatively, in many cases, such as those examples noted above, the cost of modifying the unmodifiable may well exceed the cost of purchasing a new home for the previously “non-owning” accident victim. In these circumstances, the accident victim may end up owning a modified home where previously they were only renting an apartment or condominium.