September 30, 2013

Accident Benefits Update – Crossing the Threshold

 Accident Benefits Update

For the week of September 30 to October 4

Henry v. Gore Mutual Insurance Co.2013 ONCA 480; Simmons, Hoy and Strathy JJ.A

On July 16, 2013, the Ontario Court of Appeal maintained that economic loss within the Statutory Accident Benefits Schedule (“SABS”) is a threshold issue and, as a result, attendant care benefits are not limited to the economic losses sustained by a caregiver.

BACKGROUND

On September 28, 2010, Mr. Henry was rendered paraplegic as a result of a motor vehicle accident. Mr. Henry’s mother took an unpaid leave of absence to provide the full-time care her son required.

Mr. Henry was assessed as requiring $9,500 per month in attendant care on his Form 1 and, therefore, sought the monthly maximum of $6,000 per month as permitted under the SABS. The insurer argued that the amount owed should be assessed according to his mother’s actual economic loss ($2,100 per month) and not on the basis of his Form 1 assessment, which entitled Mr. Henry to the monthly maximum.

SUPERIOR COURT’S DECISION

On June 27, 2012, Justice T.D. Ray of the Superior Court of Justice decided in favour of Mr. Henry. The Court concluded that the SABS requirement of the caregiver having to have “sustained an economic loss” was a threshold issue, meaning that the caregiver had simply to incur some economic loss, with the amount being irrelevant. Therefore, a caregiver’s economic loss was not an appropriate method for determining the amount of attendant care owed.

APPEAL COURT’S DECISION

The insurer argued before the Court of Appeal that it was only required to pay attendant care for the hours that Mr. Henry’s mother would have worked had she not been caring for her son, which represented the amount of economic loss she sustained. The insurer rationalized its position by noting that the purpose for requiring an economic loss to be sustained was to limit the compensation payable to family members. In addition, the insurer argued that it is not automatically required to pay the benefits noted in the Form 1 as it is entitled to request some form of validation that expenses had been incurred. Lastly, the insurer implored the Court to define “economic loss” in the hope of limiting future claims based on de minimis financial or monetary loss qualifying as an economic loss.

Despite the foregoing arguments, the Court of Appeal agreed with decision of Justice Ray that “economic loss” is a threshold issue and stated, in agreement, that the regulation was intended to limit payments to family caregivers, that the economic loss requirement, even as a threshold issue, “provides a rough check on attendant care costs.” The Court agreed with the insurer that an insurer is entitled to information to validate that a family member has sustained an economic loss, but noted that Justice Ray said nothing to the contrary.

The Court purposefully avoided defining “economic loss”, rationalizing that the economic loss in this instance was clear.

IMPLICATIONS

The amount of attendant care benefits that are payable is determined by Form 1 and the insurer must pay this amount after confirming that care has been provided and an economic loss, of any amount, has been incurred. Economic loss is a threshold issue. A family member who provides attendant care need only show that some economic loss was sustained as a result of providing that care. The amount of economic loss does not quantify the amount of the attendant care benefit.

Accessing This Decision

If you would like to read the decision for yourself, it can be found at: http://canlii.ca/t/g09wk

If you have questions or comments about this post, contact info@md-lawyers.ca