August 5, 2015

SABS Update – A Brave New World: Attendant Care in the 21st Century

Shawnoo v. Certas Direct Insurance Company, 2014 ONSC7014, Justice Garson.

 

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Laura Camarra

MS suffered a catastrophic brain injury in a motor vehicle collision which occurred on December 12, 2010.  As a result of her injuries, MS developed issues with impulsivity and risk-taking, such that she required constant monitoring and supervision.  MS brought a Rule 21 motion to determine the following issues:

  1. Whether MS had incurred expenses for attendant care within the meaning of section 3(7)(e) of the SABS;
  2. Whether attendant care services provided indirectly, through telephone calls, emails, FaceTime, text messaging and other similar electronic means, qualify as attendant care services.

Attendant care services were provided by her mother, CB, a certified healthcare aide akin to that of a personal support worker.  CB had not been employed for remuneration in that capacity for at least two years before the collision and was in receipt of Ontario Works immediately before the collision.

Attendant care services were also provided by her roommate, CP, a certified child and youth worker (CYW), during evenings and weekends, as CP was employed as a CYW during the day. Both CB and CP provided some attendant care services to MS by way of electronic means such as telephone calls, emails, FaceTime and text messaging. There was no dispute MS had received the services in question and either paid, promised to pay or incurred an obligation to pay the related expenses.

The question to be decided was whether CB and CP provided attendant care services within the meaning of section 3(7)(e)(iii)(A), “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”. The parties agreed the requirements of subsections 3(7)(e)(i) and (ii) had been met. The parties also agreed neither CP nor CB incurred an economic loss within the meaning of section 3(7)(iii)(B) of the SABS.

The court held neither CB nor CP provided their services in the course of their employment. The court concluded CP did not possess the appropriate professional qualifications to provide the attendant care required by MS. Although she provided supervision and support for troubled youth in the course of her employment, she did not possess the qualifications of a personal support worker or healthcare aide. The court noted there can be little doubt the intent of the drafters of the 2010 amendments to the SABS was to reduce the threshold of eligibility for attendant care benefits. Although he declined to comment on whether the February 1, 2014 amendment to the SABS applies to claims for attendant care services before February 1, 2014, Justice Garson noted the amendment makes clear the intention of the drafters of the legislation: “persons who are not ordinarily engaged in healthcare services employment, prior to the accident, are required to show an economic loss in order to receive SABS benefits for their attendant care services.”

In terms of providing attendant care through electronic means, the court acknowledged there appeared to be no authority addressing the question of whether, for the purpose of section 3(7)(e)(iii), services may be provided from a distance via electronic means and devices rather than in person. The only section in the assessment form under which attendant care is allocated for electronic services is that dealing with supervisory “custodial care” due to changes in behaviour. The court held such care does not require the service provider to “stand over” the person or be within their immediate physical presence. There is an abundance of legal and medical services appropriately proffered and received by electronic means in 2014. The court concluded attendant care services may be provided in the form of phone calls, emails, texting, FaceTime and other similar electronic means, for the purpose of the 2010 amendments to the SABS.

 

IMPLICATIONS

We are in a brave new world when it comes to the proliferation of technology in our everyday lives. The provision of attendant care services through such means is a natural extension of that evolution.

 

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