The Law Times has published an article examining the current legal issue as to what constitutes an “economic loss” for family members and friends of individuals injured in motor vehicle accidents to be compensated for providing attendant care.
In September 2010 the Statutory Accident Benefits Schedule (SABS) was changed so that non-professional attendant care providers could only be compensated if they incurred an “economic loss” by providing the attendant care. The SABS does not define what exactly is an “economic loss” and this has been the subject of vigorous debate between insurers and insureds.
The case of Henry v. Gore Insurance it was upheld by the Ontario Court of Appeal that an insurer cannot just compensate an attendant for the actual amount of the economic loss; rather, the insurer is bound to compensate the attendant for all incurred services in accordance with the amounts calculated by the Attendant Care Needs Assessment (Form 1).
In the October 14, 2013, Law Times article, the focus is now on the decision, Simser and Aviva Canada Inc., which is currently under appeal. In this case the insured tried to broaden the definition of “economic loss” to include loss of opportunity, labour or leisure, which the arbitrator did not agree with. Rather, the arbitrator took the position that there must be some type of monetary or financial loss.
If the Simser matter or some other case ever does reach the appeal court, Toronto personal injury lawyer Michael Smitiuch is confident any definition of economic loss would keep the threshold low to include people who give up part-time jobs or some of their work hours to provide necessary care for family members.
“Although it doesn’t specifically address the issue of economic loss, I believe Henry v. Gore supports the proposition that any time missed from work will constitute an economic loss. That would be consistent with previous case law which says insurance coverage provisions are to be interpreted broadly, not restrictively,” says Smitiuch.
The Law Times article can be read in its entirety by clicking here.