Ontario’s Top Court Sides with Injured Victim in Dispute over Attendant Care

Background: Imagine you are badly injured in a car crash and need assistance to perform personal care or prepare your meals. You may be entitled to these benefits from your own insurance company under the Statutory Accident Benefits Schedule (SABS) provided that your health care professional completes a Form 1, which indicates how much attendant care, in terms of hours and time, you require.

Case: In Henry v. Gore Mutual Insurance, a son was catastrophically injured and required full time attendant care. Mom left work, unpaid, in order to provide his care, instead of hiring an outside company. Attendant care was assessed at $9,500 per month (reduced to the maximum payable under SABS of $6,000). Mom’s loss of income was $2,100 per month as a result. Gore Mutual determined that mom was only to be compensated for the time she lost at work, despite the fact that she was providing 24 hour per day care, and stated that they would pay only $2,100 of the assessed $6,000 per month in attendant care.

In upholding the decision of the Superior Court of Justice, the Ontario Court of Appeal released its decision last week (Henry v. Gore Mutual Insurance) stating that the requirement that an attendant care provider, must suffer an economic loss in order to be paid is a threshold test only. Once the test has been met, the entire amount on the form 1 is payable.

According to the Court of Appeal, “if the amount of the monthly care benefit were to be calculated based upon the number of hours the family caregiver was unable to work because she was providing care, or the quantum of the economic loss sustained by the caregiver, SABS-2010 could have so indicated.”

This is a good result for insured’s in Ontario. Unfortunately, the Court of Appeal refused to address the definition of economic loss itself, and whether or not the loss has to be a pure loss of income (as the insurer interprets) or a broader concept, including losses such as mileage or out of pocket costs.

Joelle Briggs-Sears