Abraham v. Cann, 2003 CanLII 10133 (ON CA)

Abraham et al. v. Cann et al. [Indexed as: Abraham v. Cann]

68 O.R. (3d) 313

[2003] O.J. No. 4548

Docket No. C39492

Court of Appeal for Ontario

Laskin, Goudge and Feldman JJ.A.

November 28, 2003

Insurance -- Automobile insurance -- Statutory accident benefits -- Husband providing caregiver services to wife prior to accident in which husband was seriously injured -- Husband's injuries preventing him from continuing to provide wife with caregiver services and wife being required to hire substitute caregiver for herself -- Husband bringing action for damages for his own injuries and wife claiming damages under s. 61 of Family Law Act which included claim for expenses of hiring substitute caregiver -- Those expenses not constituting "health care" expenses from which defendants were protected by s. 267.5(3) of Insurance Act -- Medical and rehabilitation benefits provided by statutory accident benefits being for expenses that relate to medical and rehabilitation needs of person who sustained impairment as result of accident and not applying where needs are those of someone not involved in accident -- Wife's claim for replacement caregiving services not derivative of husband's claim -- Husband's election to take income replacement benefits not precluding wife from claiming caregiver expenses -- Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(3) -- Family Law Act, R.S.O. 1990, c. F.3, s. 61.

L was seriously injured in a car accident. His wife, B, was not involved in the accident. Since well before the accident, B had suffered from a serious medical condition for which she required the caregiving services of an attendant. Before the accident, L provided most of those services. After the accident, his ability to continue to do so was seriously impaired. L brought an action for damages for his own injuries. The applicable legislation was the Automobile Insurance Rate Stability Act, S.O. 1996, c. 21 (Bill 59). B claimed damages pursuant to s. 61 of the Family Law Act. These included a claim for the expenses she had incurred for replacement caregiving that L could no longer provide. Section 36 of the Statutory Accident Benefits Schedule under Rule 59 required L to elect between receiving an income replacement benefit and a caregiver benefit. He elected the former. The parties stated a case seeking the court's opinion on two questions. The first was whether the substitute caregiver expenses claimed by B were "health care" expenses within the meaning of s. 224(1) and s. 267.5(3) of the Insurance Act. It was agreed that if they were, the defendants could not be sued for them. The second was whether, in any event, B could not claim those expenses because her [page314] claim was derivative of L's claim and L elected to take an income replacement benefit rather than a caregiver benefit. The motions judge found that the expenses that B claimed were not "health care" expenses but that she could not advance a claim for them because of L's election. L and B appealed the answer to the second question. The defendants cross-appealed the answer to the first question.

Held, the cross-appeal should be dismissed and the appeal should be allowed.

The expenses claimed by B were not "health care" expenses from which the defendants were protected by s. 267.5(3) of the Insurance Act. The medical and rehabilitation benefits provided by statutory accident benefits are for expenses that relate to the medical and rehabilitation needs of the person who sustained an impairment as a result of the accident. They do not apply where the needs are of someone not involved in the accident. The substitute caregiver services in this case were not covered by the medical or rehabilitation benefits provided by ss. 14 and 15 of SABS. Thus, caregiver benefits are not included within the definition of "health care" benefits in s. 224(1).

In finding that B could not claim her expenses for substitute caregiving because hers was a derivative claim and that, since L could not claim a caregiver benefit as he had elected to take an income replacement benefit, B could not do so either, the motions judge mistook the nature of B's claim under s. 61 of the Family Law Act. That section required only that L be entitled to recover damages. That was his assertion in this action. The resulting cause of action that the statute gave to B was her own, and it entitled her to claim her own replacement caregiving expenses.

APPEAL and CROSS-APPEAL from an order of the motions judge.

Statutes referred to Automobile Insurance Rate Stability Act, 1996, S.O. 1996, c. 21 Family Law Act, R.S.O. 1990, c. F.3, s. 61 Insurance Act, R.S.O. 1990, c. I.8, ss. 224(1), 267.5(3) Rules and regulations referred to Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, ss. 13, 14, 15, 36

Robert B. Ledgley and Valerie D. Wise, for appellants. James R. Adams, for respondents.

The judgment of the court was delivered by

1GOUDGE J.A.: -- The main issue in this appeal is whether Bonnie Abraham is precluded by the governing legislative scheme from claiming the costs she incurred in hiring a substitute caregiver for herself when her husband could no longer care for her due to the serious injuries he suffered in a car accident. For the reasons that follow, we have determined that she is not barred from making this claim, and we would therefore allow the appeal and reverse the motions judge. [page315]

2Leonard Abraham was seriously injured in a car accident on December 3, 1996. His wife, Bonnie Abraham, was not involved in the accident. Since well before the accident, Bonnie had suffered from a serious medical condition for which she required the caregiving services of an aid or attendant. Before the accident, Leonard provided most of these services. He received no remuneration for this work. Unfortunately, due to the injuries Leonard sustained in the accident, his ability to continue these services is permanently impaired. The accident has also rendered him substantially unable to perform the essential tasks of his regular employment.

3In this action, Leonard sues for damages for his injuries. Given the date of the accident, the relevant legislation is the Automobile Insurance Rate Stability Act, 1996, S.O. 1996, c. 21, known as Bill 59.

4Bonnie also claims damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. These include a claim for the expenses she has incurred for replacement caregiving that Leonard can no longer provide.

5Section 36 of the Statutory Accidents Benefits Schedule (SABS) under Bill 59 required Leonard to elect between receiving an income replacement benefit and a caregiver benefit. He elected the former.

6The parties stated a case seeking the court's opinion on two questions.

7The first is whether the substitute caregiver expenses claimed by Bonnie are "health care" expenses within the meaning of s. 224(1) and s. 267.5(3) of the Insurance Act, R.S.O. 1990, c. I.8. It is agreed that if they are, the respondents cannot be sued for them.

8The second is whether, in any event, Bonnie cannot claim these expenses because her claim is derivative of Leonard's claim and Leonard elected to take an income replacement benefit rather than a caregiver benefit.

9The motions judge found that the expenses Bonnie claimed were not "health care" expenses but that she could not advance a claim for them because of Leonard's election.

10Leonard and Bonnie Abraham appeal the answer to the second question. The defendants cross-appeal the answer to the first question. Because the second question only arises if the motions judge correctly answered the first question, we will deal with the cross-appeal first.

The Health Care Issue

11The two provisions of the Insurance Act that are relevant to this issue are the definition of "health care" in s. 224(1) and the [page316] protection from liability for "health care" expenses in s. 267.5(3). These are as follows:

224. (1) Definitions -- In this Part,

"health care" includes all goods and services for which payment is provided by the medical, rehabilitation and attendant care benefits provided for in the Statutory Accidents Benefits Schedule; ("soins de santé")

267.5(3) Protection from liability; health care expenses -- Despite any other Act and subject to subsections (4) and (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile.

(Emphasis added)

12The cross-appellants say that both s. 14 (the Medical Benefit section) and s. 15 (the Rehabilitation Benefit section) of SABS entitle Leonard Abraham to receive payment for reasonable and necessary expenses incurred by him or on his behalf as a result of the accident, in providing substitute caregiving for his wife. Sections 14 and 15 provide:

14(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.

(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(c) medication;

(d) prescription eyewear;

(e) dentures and other dental devices;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;

(h) other goods and services of a medical nature that the insured person requires.

(3) The insurer is not liable to pay a medical benefit for goods or services that are experimental in nature. [page317]

(4) The insurer is not liable to pay a medical benefit under clause (2)(a), (b) or (h) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette by the Ontario Insurance Commission or Financial Services Commission of Ontario, as they may be amended from time to time.

(5) Subject to subsection (6), the insurer is not liable to pay a medical benefit under clause (2)(g) for expenses related to transportation unless the expenses are authorized by, and are calculated by applying the rates set out in, the Transportation Expense Guidelines published in The Ontario Gazette by the Ontario Insurance Commission or Financial Services Commission of Ontario, as they may be amended from time to time.

(6) The insurer is not liable to pay a medical benefit under clause (2)(g) for expenses related to the first 50 kilometres of transportation in the insured person's automobile to and from a treatment session.

15(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.

(2) The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

(3) Measures to reintegrate an insured person into the labour market include measures that are reasonable and necessary to enable the person to,

(a) engage in employment that is as similar as possible to employment in which he or she engaged before the accident; or

(b) lead as normal a work life as possible.

(4) In determining whether a measure is reasonable and necessary for the purpose of subsection (3), the insurer shall consider the insured person's personal and vocational characteristics.

(5) The rehabilitation benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in subsection (2) for,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person;

(i) home modifications and home devices, including communication aids, to accommodate the needs of the insured person, or the [page318] purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person's existing home;

(j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle;

(k) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(l) other goods and services that the insured person requires, except services provided by a case manager.

(6) The insurer is not liable to pay a rehabilitation benefit under any of clauses (5)(a) to (g) or clause (5)(1) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette by the Ontario Insurance Commission or Financial Services Commission of Ontario, as they may be amended from time to time.

(7) For the purpose of clause (5)(i), expenses incurred to renovate the insured person's home shall be deemed not to be reasonable and necessary expenses if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living.

(8) The amount of the rehabilitation benefit for the purchase of a new home shall not exceed the value of the renovations to the insured person's existing home that would have been required to accommodate the needs of the insured person.

(9) For the purpose of clause (5)(j), expenses incurred to purchase or modify a vehicle to accommodate the needs of an insured person shall be deemed not to be reasonable and necessary expenses if they are incurred within five years after the last expenses incurred for that purpose in respect of the same accident.

(10) The amount of the rehabilitation benefit for the purchase of a new vehicle shall not exceed the cost of the new vehicle, less the trade-in value of the existing vehicle.

(11) Subject to subsection (12), the insurer is not liable to pay a rehabilitation benefit under clause (5)(k) for expenses related to transportation unless the expenses are authorized by, and are calculated by applying the rates set out in, the Transportation Expense Guidelines published in The Ontario Gazette by the Ontario Insurance Commission or Financial Services Commission of Ontario, as they may be amended from time to time.

(12) The insurer is not liable to pay a rehabilitation benefit under clause (5)(k) for expenses related to the first 50 kilometres of transportation in the insured person's automobile to and from a counselling session, training session or assessment.

13The cross-appellants argue that because the expenses claimed by Bonnie Abraham are for medical and rehabilitation [page319] benefits, they therefore constitute "health care" expenses from which they are protected by s. 267.5(3). We disagree.

14In our view the medical and rehabilitation benefits provided by SABS are for expenses that relate to the medical and rehabilitation needs of the person who sustained an impairment as a result of the accident. In this case they would be the medical and rehabilitation needs of Leonard himself. They do not apply where the needs are of someone not involved in the accident. The language of ss. 14 and 15 of SABS makes this clear.

15This conclusion is fortified by s. 13 of SABS. It reads as follows:

13(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

1. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

(2) The caregiver benefit shall pay for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care.

(3) The amount of the caregiver benefit shall not exceed,

(a) for the first person in need of care,

(i) $250 per week, or

(ii) if the optional caregiver and dependant care benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit; and

(b) for each additional person in need of care,

(i) $50 per week, or

(ii) if the optional caregiver and dependant care benefit referred to in section 27 has been purchased and is applicable to the insured person, the amount fixed by the optional benefit.

(4) The insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life.

16This section provides for a caregiver benefit payable to an insured who sustains an impairment as a result of an accident where the insured was the primary caregiver for another and was rendered by the accident unable to continue to be the [page320] caregiver. It much more aptly describes the situation of Leonard and Bonnie Abraham. It supports the conclusion that the substitute caregiver services in this case are not covered by the medical or rehabilitation benefits provided by ss. 14 and 15 of SABS. Thus caregiver benefits are not included within the definition of "health care" benefits in s. 224(1). Hence s. 267.5(3) provides the cross-appellants with no protection from Bonnie Abraham's claim for replacement caregiving expenses.

17We therefore agree with the answer given by the motions judge to the first question and would dismiss the cross-appeal.

The Derivative Claim Issue

18The motions judge found that Bonnie Abraham could not claim her expenses for substitute caregiving because hers was a derivative claim. Since her husband could not claim a caregiver benefit, having elected to take an income replacement benefit, she could not do so either.

19In our opinion, this mistakes the nature of Bonnie's claim under s. 61 of the Family Law Act. That section requires only that Leonard be entitled to recover damages. That is his assertion in this action. The resulting cause of action that the statute gives to Bonnie is her own, and it entitles her to claim her own replacement caregiving expenses.

20Leonard's election to take the income replacement benefit rather than the caregiver benefit under s. 13 of SABS might or might not have barred him from suing in tort for expenses for replacement caregiving for his wife, had he done so. We need not decide that issue in this case. It is sufficient to say that his election under SABS affects him but not Bonnie. It can serve as no bar to her statutory cause of action and the damages she can claim as a result.

21We therefore allow the appeal and answer the second question in the negative. We dismiss the cross-appeal. The expenses claimed by Bonnie Abraham are not barred but are recoverable in tort in her derivative claim under s. 61 of the Family Law Act.

22Given our conclusions on these two questions, we reverse the costs order of the motions judge and award the appellants costs of $3,000 plus GST for the motion. We order costs of the appeal to the appellants in the same amount.