November 20, 2015

When is an Economic Loss Incurred by a Non-Professional Caregiver?: An Expansive Definition

Brent Hodge

Brent Hodge

Under the Statutory Accident Benefits Schedule, attendant care benefits are only payable to family members and other persons providing non-professional care if they  incur an economic loss. The term “economic loss” is not defined by the Regulation.  The leading authority on interpretation of the Regulation is Henry v. Gore, 2013 ONCA 480, which held that insurance coverage provisions are to be interpreted broadly, while coverage exclusions or restrictions are to be constructed narrowly, in favour of the insured.

In Futrell v. State Farm, A13-004179-V-ADRCHAMBERS, Arbitrator James Newland was asked to determine whether mileage and parking expenses incurred by the husband of a woman seriously injured in a motor vehicle accident constituted an economic loss such than an attendant care benefit would be payable.  He found that these types of expenses clearly fall within the plain English meaning of economic loss and are consistent with past arbitral and court decisions.  He also found that the amount of the economic loss is irrelevant.  If a loss is incurred, the benefit is payable, subject to meeting other statutory requirements.

In a legislative reaction to the result in Henry v. Gore, the Ontario government enacted Regulation 347/13, effective February 1, 2014.  This regulation limited the amount of the attendant care benefits payable to the amount of the economic loss sustained.  Fortunately, for older accidents, the court in Davies v. Wawanesa, 2015 ONSC 6624, clarified that Regulation 347/13 does not apply retrospectively and will only limit claims arising out of accidents that occurred after February 1, 2014.

Implications

For accidents before February 1, 2014, it has been clarified that, even small economic losses, like mileage and parking, will satisfy the definition of economic loss such that the full amount of the attendant care provided will be payable.  It is recommended that files are reviewed for past entitlements that may have been undervalued by insurers.

 

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