There have been several developments in the past few years . Gore Mutual Insurance Company , in relation to waiting for 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 waiting for benefits, and came into effect on February 1, 2014.
The Simser Appeal
The Simser’s Decision on an Unsuccessful Appeal from an Arbitrator’s Order in January, 2013, in which the insured, Kevin Simser
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 to a hometown of Simser’s home hospital. During the same period, Simser hired a lawncare company, JJ Lawncare, to maintain his rural property. Following an assessment of his expectation of care, Mr. Simser applied for waiting for benefits from his first-party insurer, Aviva Canada. Mr. Simser is waiting to be paid for benefits, but he does not need to pay more for his living expenses. Mr. Simser appealed the insurer’s decision.
The appeal of the test for incurred expenses in subsection 3 (7) (e) of the SABSSABS is an obligation incurred by the SABS, which is subject to the payment of costs. In addition, the person who provided the services must have done so in the course of employment, occupation or profession in which they would ordinarily have 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 been the first and second parties of the test, and that he had received, and that he was in question that was related to his Form 1 assessment.
It is the third part of the “incurred test” that was tested in this case, and the evidence was of providing care and housekeeping for him. He was also required to prove that JJ Lawncare would have been ordinarily engaged but not for the accident. At the arbitration hearing, Arbitrator Lee found that Mr. Simser had failed to do so.
In his appellate decision, Henry v. Gore Mutual Insurance Company , (2013) ONCA 480 (“Henry”), which also addresses the issue of economic loss. In Henry , the Court of Appeal has found that insurance coverage narrowly in favor of the insured. Acknowledging that the SABSIt does not define economic loss, or imposes a minimum financial loss or other restrictions, the Court declined to do so, finding it on the facts of the case, economic loss was clear. The Court also found that the rate of payment is a reasonable threshold for entitlement, and it is not a factor in quantifying the quantum of reasonable or necessary benefits to be paid by an insurer. The economic loss has been sustained, the expectations of the care of the care of the caregiver, and the health care of the caregiver. Where no economic loss has been sustained, no waiting for benefits have been payable.
With regard to economic loss, in Simser, Delegate Blackman agreed that Mr. Simser had not established a position of providing adequate care and housekeeping services. There was an absence of documentation supporting the loss of income during the period. Most of the out-of-pocket expenses have been incurred while under the care of the child. There was also insufficient evidence to prove that Mr. Simser’s daughter’s schooling was adversely affected because of a loss of school life. or that JJ Lawncare had provided goods or services in the race of the occupation in which it would ordinarily have been engaged.
Delegate Blackman rejected the argument that it is a good business opportunity or provides a business opportunity for the business of business; and that if this type of loss were included in the definition of economic loss, the provisions of the SABS would be rendered meaningless. It may be a special occasion where a loss of opportunity may be considered an economic loss under the SABS , but not in this case.
Ultimately, Delegate Blackman found that, with a view to the expectation of care, where it is not race of their employment.
The SABS Amendments
In response to the Court of Appeal for Ontario’s decision in Henry v. Gaming , the Ontario Provincial Government enacts amendments to the SABS in December of 2013. The Amendments in Regulation 347/13 (“the Regulation”) came into effect on February 1, 2014, with the goal of automobile insurance system.
In particular, and with regard to the expectation of care benefits, section 2 of the Regulation, subsection 19 (3) of the SABS:
4. Despite paragraphs 1, 2 and 3, if a person who is in the labor force, the occupation or occupation of the person care provider would ordinarily have been engaged for compensation, but for the purpose of the accident, the amount of the benefit as a direct result of, providing the waiting care.
As such, the SABS have been amended to make claims for non-professional services. The outcome of these developments is that of a cost-loss factor. It is also a benefit “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 in most cases. Finally, the provision of a claim for damages is necessary in the context of a statutory accident benefits claim for maintenance or housekeeping services under the SABS .