Andrew C. Murray

The plaintiff was injured during a recreational tug-of-war game at a campground.

The defendants previously moved for summary judgment, which was granted but subsequently overturned by the Court of Appeal, finding a genuine issue for trial regarding vicarious liability.

The defendants brought a second motion for summary judgment.

The court dismissed the second motion, holding that the defendants were precluded by the doctrine of issue estoppel from relitigating the Court of Appeal's finding that there is a genuine issue requiring a trial.

The plaintiff brought a Rule 21 motion seeking determination of legal questions concerning entitlement to attendant care benefits under the Statutory Accident Benefits Schedule for Accidents on or after September 1, 2010 (SABS-2010).

The issues were whether expenses for attendant care provided by the plaintiff’s mother and roommate were “incurred” within the meaning of s. 3(7)(e) and whether attendant care services could be provided remotely through electronic communication such as telephone calls, texting, and FaceTime.

The court held that the services provided by the mother and roommate did not satisfy the statutory requirement that the provider be acting in the course of the employment, occupation, or profession in which they would ordinarily have been engaged, because neither sustained an economic loss nor was working in the relevant profession at the time.

However, the court concluded that attendant care services may be provided remotely through electronic means where reasonable and necessary supervision is involved.