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There have been several developments over the last few months following last year’s Court of Appeal for Ontario decision in Henry v. Gore Mutual Insurance Company, in relation to attendant care benefits under the 2010 Statutory Accident Benefit Schedule – Effective September 1, 2010 (“SABS”). The first of these was the Financial Services Commission of Ontario (“FSCO”) Appeal Order in Kevin Simser and Aviva Canada Inc. (Appeal P14-00004), released on January 9, 2014. The second was an amendment to the SABS, which included a new limit on attendant care benefits, and came into effect on February 1, 2014.

The Simser Appeal

The Simser decision involved an unsuccessful appeal from an Arbitrator’s order in January, 2013, in which the insured, Kevin Simser was found not entitled to benefits in dispute related to certain attendant care provided by his estranged wife and daughter.

Kevin Simser was seriously injured in a motor vehicle accident in 2010. Simser’s wife, who was separated from him at the time of the accident moved from a nearby town to Simser’s home to provide care for him following the accident for several months following his discharge from hospital. During the same period, Simser hired a lawncare company, JJ Lawncare, to maintain his rural property. Following an assessment of his attendant care needs, Mr. Simser applied for attendant care benefits from his first-party insurer, Aviva Canada. The insurer declined to pay Mr. Simser attendant care benefits for the eight month period that his wife cared for him, however he received benefit payments for attendant care and housekeeping services after his wife was no longer living in his house. Mr. Simser appealed the insurer’s decision.

The appeal concerned the test for incurred expenses (“incurred test”) in subsection 3(7)(e) of the SABS, which provides that an expense related to goods or services referred to in the SABS is not incurred by an insured person unless the person has received the goods or services to which the expense relates, and has paid or promised to pay to pay the expenses. In addition, the person who provided the services must have done so in the course of the employment, occupation or profession in which they would ordinarily been engaged, but for the accident; or sustained an economic loss as a result of providing the goods and services. The parties agreed that Mr. Simser had met the first and second parts of the test, and that he had received, and either paid or agreed to pay for attendant care, housekeeping and homecare services from his wife, daughter and JJ Lawncare during the period in question that were related to his Form 1 assessment.

It is the third part of the “incurred test” that was at issue in this case, and the onus of proof was on Mr. Simser, as the insured person, to prove that his wife and daughter had sustained an economic loss as a result of providing attendant care and housekeeping for him. He was also required to prove that JJ Lawncare had provided home maintenance services in the course of the employment in which it would ordinarily have engaged, but for the accident. At the arbitration hearing, Arbitrator Lee found that Mr. Simser had failed to do so.

In his appellate decision, Director’s Delegate Blackman discussed the Court of Appeal for Ontario’s earlier decision, Henry v. Gore Mutual Insurance Company, (2013) ONCA 480 (“Henry”), which also addressed the issue of economic loss. In Henry, the Court of Appeal had found that insurance coverage restrictions should generally be interpreted narrowly in favour of the insured. Acknowledging that the SABS did not define economic loss, or impose a minimum financial loss or other restrictions, the Court declined to do so, finding that on the facts of the case, economic loss was clear. The Court also found that economic loss merely served as a threshold for benefit entitlement, and was not a factor in quantifying the amount of reasonable or necessary benefits to be paid by an insurer. If economic loss was sustained, attendant care benefits were generally payable with respect to all care detailed in the Form 1 Assessment of Attendant Care Needs, subject to the insurer’s right to dispute whether the services provided in the Form 1 were reasonable and necessary. Where no economic loss was sustained, no attendant care benefits were payable.

With regard to economic loss, in Simser, Delegate Blackman agreed that Mr. Simser had not met his onus of establishing that his wife had sustained economic loss in the form of lost wages or out-of-pocket expenses as a result of providing him attendant care and housekeeping services. There was an absence of documentation supporting her loss of income during the period. Most of her out-of-pocket expenses were incurred for parking while Mr. Simser was still in hospital, and not related to the services she had provided after he was released. There was also insufficient evidence to prove that Mr. Simser’s daughter’s schooling was adversely affected because of lost time at school in a manner that would constitute an economic loss; or that JJ Lawncare had provided goods or services in the course of the occupation in which it would ordinarily have been engaged.

Delegate Blackman rejected the argument that lost time or opportunity equated to economic loss, noting that any service provider will always lose some time or opportunity in providing services; and that if this type of loss were included in the definition of economic loss, the provisions of the SABS at issue would be rendered meaningless. He acknowledged that there might be specific occasions where a loss of opportunity might be considered an economic loss under the SABS, but not in this case.

Ultimately, Delegate Blackman found that, with regard to attendant care benefits where no economic loss is sustained, no benefits are payable in respect of care provided by a family member, even if the family member provided care that would otherwise be provided by someone in the course of their employment.

The SABS Amendments

In response to the Court of Appeal for Ontario’s decision in Henry v. Gore, the Ontario Provincial Government announced amendments to the SABS in December of 2013. The amendments in Ontario Regulation 347/13 (“the Regulation”) came into effect on February 1, 2014, with the goal of helping reduce costs and uncertainty in the automobile insurance system.

In particular, and with regard to attendant care benefits, section 2 of the Regulation amended subsection 19(3) of the SABS by adding a fourth paragraph as follows:

4. Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by the attendant care provider during the period while, and as a direct result of, providing the attendant care.

As such, the SABS have been amended to clarify that claims for attendant care performed by non- professional attendant care providers are limited to the economic loss sustained by the care provider. The outcome of these developments is that economic loss is no longer considered a threshold requirement, but as a factor in calculating the amount of attendant care benefits. It is also a benefits “cap” for care provided by family and friends outside of the ordinary course of their employment. In addition, loss of time will not be considered an economic loss in most cases. Finally, clear evidence from an insured supporting an alleged economic loss is necessary in making a statutory accident benefits claim for attendant care or housekeeping services under the SABS.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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