December 1, 2014

SABS Update – Discrimination Against Unpaid Homework Continues: What Would the OCA Think?

Josey v. Primmum Insurance Co. (2014) FSCO 4213  Arbitrator Alec Fadel

MVC: Dec, 2011. The parties agreed that Josey required attendant care as a result of injuries sustained in the crash. He received attendant care services from his spouse. The undisputed value of the care provided was $15,795. The claim was denied on the basis that she did not sustain an economic loss. The result in this case is a good illustration of the ongoing discrimination against unpaid caregivers in Ontario, despite strong statements of the worth of women’s work by the Supreme Court of Canada and the Ontario Court of Appeal

The only issue was entitlement. Josey argued that since his spouse was a full time albeit unremunerated caregiver to their three children before the accident, she was a person who provided care in the course of her “employment, occupation, or profession” and he was therefore entitled to the attendant care benefit without needing to prove economic loss.

The argument advanced by Josey was that the 2010 Schedule did not include a definition for “incurred” that would require a non-professional attendant care provider to show they have sustained an economic loss as a result of providing attendant care services to the insured. If the services were provided by a professional service provider, it must have been done in the course of their “employment, occupation or profession”. These three words were not defined in the 2010 Schedule.

The Insurer provided definitions for “employment, occupation or profession” to demonstrated that a person is either being paid, or there is an expectation or goal of financial gain.

Arbitrator Fadel found the plain meaning of s 3(7)(e) (iii)(A) is that a professional care provider (usually an arm’s length individual), be reimbursed for services provided in the course of their employment. This implies that remuneration is an aspect of that service. The amendments to the 2010 Schedule show a distinct and deliberate shift. He notes there was a “concerted effort on the part of the legislature to exclude family members from being reimbursed for attendant care services they provided to an insured without showing an economic loss had been sustained.” Likewise, in Henry v. Gore, the Court of Appeal has agreed that SABS 2010 was intended to provide a check on payments to family care providers. Consequently, insured persons like Mr. Josey, are no longer entitled to receive the attendant care benefit strictly on the basis of demonstrated need.

The amendments did not contemplate that a stay at home parent would be considered someone providing attendant care services in the course of their “employment, occupation or profession”. The arbitrator recognized that an unpaid, stay-at-home parent providing care to their children provides an important service, but acknowledged that a working parent also provides care to their children for a significant part of the day. The result would be that both would qualify under s. 3(7)(e)(iii)(A) if the arbitrator had held that an unremunerated “care provided” was an “occupation”. This expansive approach was not the intention of the Legislature.

There has been a political shift away from protecting the rights of the victim in favour of insurance industry profits. Cuts to attendant care are one example. The passing of Bill 15 -“Fighting Fraud and Reducing Automobile Rates” which also restricts a claimant’s access to the Courts to sue for disputed benefits is another example.

In the tort context, the Courts have upheld monetary claims for the loss of past and future homemaking services and recognized the contribution of these services formerly provided by the injured party. (See: McIntyre v. Docherty, 2009 ONCA 448 and Peter v Beblow, [1993] 1 S.C.R. 980) Chief Justice Beverly McLachlin of the Supreme Court stated:

The notion that household and childcare services are not worthy of recognition by the court fails to recognize the fact that these services are of great value…The notion, moreover, is a pernicious one that systematically devalues the contributions which women tend to make to the family economy. It has contributed to the phenomenon of the feminization of poverty.

The wife of Mr. Josey was unsuccessful in proving that homemaking was her “employment, occupation, or profession.” Since the Court provides compensation for loss of these services, perhaps it ought to be recognized in the SABS context to trigger payment of attendant care.

In this situation, the quantum was agreed to in the amount of $15,000. If there is a tort claim, there is the opportunity for a Family Law Act Claimant to recover money for the service provided or for the Plaintiff to recover the expense. The Insurer’s agreement on quantum may even be helpful in “proving” the damages. However, where there is no tort claim, family members who provide benevolent service without incurring a loss are entirely shut out.
Finally, section 19(3) 4 was subsequently amended after the Henry decision to specify that the attendant care provider must have been engaged for remuneration so the uncertainty no longer exists in the wording of the Statute.
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