Family Members Sustain Economic Losses in Providing Attendant Care

Posted December 11, 2012
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In the Fall 2005, Volume 6, 3rd Issue of the Accident Benefit Reporter, the writers addressed the topic, “Attendant Care Benefits under Bill 198: Who, What, When, Where and How”. The substance of the article was to suggest that family members were entitled to attendant care in most instances where they took time away from other activities that had economic value in order to care for their seriously injured family member.

A second article entitled, “Attendant Care Incurred under the September 1, 2010 SABS” also appeared in the November 2011, Volume 12, 2nd Issue of the Accident Benefit Reporter, authored by this writer. In this article, we discussed the prerequisite elements to receiving attendant care, the meaning of “occupation” and described various “economic losses”, which occur when a family member must take time from their other pursuits in order to provide attendant care to the injured family member.

As it relates to family members who provide attendant care, the applicable section of the SABS reads as follows:

“3 (7)(c) an aide or attendant for a person includes a family member or friendwho acts as the person’s aide or attendant, even if the family member or friend does not possess any special qualifications.

Followed by:

“3(7)(e) subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person [injured person] has received the goods or services [attendant care] to which the expense relates, (ii) the injured person has paid the attendant care, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services [attendant care provider],”

(A) did so in the course of his or her regular occupation or profession, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person;

We predicted in our “Attendant Care Incurred” under the September 1, 2010 SABS article that:

“Courts will likely accept that the phrase “an economic loss” as it has no modifiers nor qualifications, will be interpreted broadly, in favour of the accident victim so that a modest economic loss will qualify and entitle the care provider for the injured person to receive payment for the full value of the attendant care which he/she provides as determined using the Form 1 and reflecting the amount of time for which services have been provided with attendant care provider.”

Thankfully, the Courts and Arbitrators have been called upon since our article appeared, to consider what was an “economic loss”, in light of the definition of “incurred” expenses in Section 3 (7) (e) of the SABS stated above.

The decision of Justice T. D. Ray, of the Ontario Superior Court of Justice in Henryv. Gore Mutual Insurance Company, issued June 27, 2012, is in line with the interpretations that we have provided to the new SABS provisions in our previous attendant care articles.

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