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Wednesday, August 23, 2017

 
 
 

 
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Bus Passes or Tickets constitute an “Economic Loss”: FSCO

The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that confirms that the purchase of bus passes or tickets by a non-professional for the provision of housekeeping and home maintenance, as well as caregiving services and (arguably) attendant care, constitutes “economic loss” under the Statutory Accident Benefits Schedule (SABS).

On September 1, 2010, the accident benefits legislation was changed so that non-professionals (i.e., those who have not provided the services in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident) could only be reimbursed for the services they provided if they had incurred an economic loss.  The term “economic loss” was not defined within the regulations.

In the decision Asokumaran and TD Home (FSCO A12-007443) Arbitrator Susan Alves noted that it was submitted that the insured’s friend purchased bus tickets and/or passes to travel to the insured’s home.  Both parties agreed to submit to a preliminary issue on whether or not these expenses would constitute an “economic loss”.  The arbitrator did not address whether or not these expenses were incurred to provide the housekeeping and caregiver services and that issue will be decided at the main arbitration hearing.

What is clear from this decision is the rejection of a de minimis requirement (that is, that there is a possible minimum amount required for an economic loss argument to be established).  The insurer in this case relied heavily on a previous arbitration decision, Simser and Aviva Canada, which was generally restrictive with respect to broader-use definitions of what constitutes an economic loss.  Arbitrator Alves noted the following:

In Simser and Aviva Canada Inc., (FSCO A11-004610, January 16, 2013), the hearing arbitrator adopted the definition of economic loss from Black’s Law Dictionary and held that economic loss as applied in the Schedule must relate to some form of financial or monetary loss. This conclusion was not disturbed on appeal.
At the Simser hearing, the applicant had significant evidentiary difficulties in establishing the various losses claimed. For example, the hearing arbitrator described the evidence adduced at the hearing as vague and lacking in detail, lacking documentary evidence from the service provider’s employer, despite numerous requests from the insurer, and that there was a failure to link the expense or loss to the attendant care claimed. With respect to some of the out-of-pocket expenses, the arbitrator held that they were de minimis and therefore did not amount to economic loss.
I am not persuaded that the expenditure of $5,048 in this case is de minimis. The Court of Appeal in [Gore v.] Henry rejected any de minimis requirement for an expense to qualify as economic loss. On this point, on appeal, Delegate Blackman noted that the hearing arbitrator in Simser adopted the de minimis approach taken by the trial judge in Henry v. Gore Mutual. However, the arbitrator did not have the benefit of the Court of Appeal’s decision rejecting the de minimis approach at the time he issued his decision.
What is clear from these cases is that a loss of wages or a loss of income will qualify as an economic loss. I am not persuaded by the Insurer’s submission in this case, that the term economic loss should be read restrictively so that only those losses will qualify. Had the legislature intended to restrict economic loss to wage loss or loss of income, it could have so stated. Insurance coverage provisions are to be interpreted broadly, while coverage exclusions or restrictions are to be construed narrowly in favour of the insured.  In my view, the Applicant has demonstrated that funds were expended by her friend and service provider in the amount of $5,048 to purchase bus tickets and/or passes in order for her to travel to the Applicant’s home. The purchases involved the expenditure of funds by the service provider, were a monetary loss to her and therefore qualify as an economic loss within the meaning of the Schedule.

The decision can be read in its entirety by clicking on the link below.

Asokumaran and TD – Economic Loss

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