Neutral Citation: 2003 ONFSCDRS 174
FSCO A03-000938
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANTOINETTE McCABE
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
David Muir
Heard:
October 29, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Stan Steinman for Ms. McCabe
Adrian Willsher for Guarantee Company of North America
Issues:
The Applicant, Antoinette McCabe, was injured in a motor vehicle accident on November 13, 2002. She applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.1 The parties have been unable to resolve their disputes through mediation, and Ms. McCabe applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Is Ms. McCabe a primary caregiver as contemplated by section 13 of the Schedule?
Result:
- Ms. McCabe is not a primary caregiver as contemplated by section 13 of the Schedule.
EVIDENCE AND ANALYSIS:
Ms. McCabe gave evidence at the hearing.
Ms. McCabe is a married woman, mother to two children, both of whom currently live away from home while they attend the University of Toronto. She lives in North Toronto with her husband. Ms. McCabe claims that she is the primary caregiver for her younger brother, Tony.
Tony suffers from epilepsy. He was diagnosed at an early age. When he was 15 years old he was offered treatment for this condition. Ms. McCabe believes it to be the case that this treatment did not cure Tony of his epilepsy and as a result left him as a paranoid schizophrenic. When he was 16 years old, Tony quit attending school and his part-time jobs. From that time onward, according to Ms. McCabe Tony retreated into the family home where he remained until his parents both passed away about ten years ago.
Ms. McCabe has always been involved in Tony's care. When she was very young she was required to carry a face cloth with her when she and Tony would walk to school, to clean him up in the event that he had a seizure en route. After she left her parents' home, Ms. McCabe remained involved, taking on increasing responsibility for him as her parents, her mother in particular, grew older.
Ms. McCabe has experienced serious medical challenges of her own. In 1988 she became ill and required a liver transplant. In 1995 she was required to undergo a second liver transplant. The anti-rejection drugs she is required to take have lead, she testified, to the need for a kidney transplant. While she waits for an available kidney, she undergoes dialysis. As a result of these medical problems Ms. McCabe was unable to take Tony into her home after their parents passed away approximately 10 years ago. Tony has lived in the Queen Street Mental Health Centre ("Queen Street") since that time.
At her mother's deathbed, Ms. McCabe promised to take care of Tony as best she could. She has fulfilled that promise despite her own medical challenges. She attends at Queen Street two or three times a week, each and every week. When asked by counsel for Guarantee whether there has ever been a week, when on vacation or otherwise, that she has not been to Queen Street she responded that when the family took a short vacation Tony would go with them. When asked by myself whether she could recall any single week over the ten years after her parents' passing that she had not attended at Queen Street to visit with and care for her brother, she conceded that there might have been but she did not think so. She testified that the family had not taken any lengthy vacations and when they did rent a cottage for a week or took some other short excursion outside of the city for a period of time, they would take Tony with them because he was considered part of the family.
Although she did not use these words to describe it, it would appear that Tony is emotionally dependent on Ms. McCabe. She is often required to intervene on his behalf with staff at Queen Street. Over time she has taken over giving Tony showers at the request of staff, because he would not cooperate with them. Staff no longer ask her to do this and she just does it as part of the routine of her visits. Since the car accident giving rise to these claims, Ms. McCabe has been a much less frequent visitor at Queen Street. As a result, according to Ms. McCabe, her brother has begun to "act out" and has been moved to an isolation area and then to a high security ward within the facility.
Ms. McCabe is significantly involved in her brother's care. As indicated, she attends at Queen Street regularly and often. She has been asked by staff to take away Tony's laundry and do it, but she has declined to do so because she wishes to devote her time to visiting with Tony. She prepares and brings meals with her on her visits because Tony refuses to eat the food provided by the facility. She also feeds her brother to ensure that he eats something. Ms. McCabe testified that he has lost a great deal of weight over the ten years, going from 180 lbs. to about 59 kilos (approximately 130 lbs.) today. She has also been asked to attend with Queen Street staff on Tony's medical appointments at outside facilities because he will not go without her. These appointments are fairly frequent as Tony suffers from cancer and as well, after wandering away from the facility, was seriously injured in an accident of some kind. Ms. McCabe now attends with Tony on all of his medical appointments, which are frequent, because Tony simply will not go without her there. If she is unable to attend for some reason, the appointment in question is cancelled.
I find that Ms. McCabe has been providing important caregiving services to and for her younger brother Tony for much of his life and, in particular, from the time of her parents' passing, until the date of the accident, a period of almost ten years. She has done so in part because of her sense of responsibility for and devotion to her brother and also because of a death-bed promise to her mother. The question remains whether she is the primary caregiver for Tony within the meaning of section 13 of the Schedule?
I find that she is not.
The statutory provision in question is reproduced here:
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:
- 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.
For purposes of this preliminary issue, there was no issue and I have taken as given that Tony is a person in need of care and that Ms. McCabe was not remunerated for the services that she provided to him.
The key difficulties for Ms. McCabe in fitting the important work she does for her brother within the statutory language are that she does not reside with her brother Tony and, additionally, though less obviously perhaps, she is not the primary caregiver.
Ms. McCabe argued that the decided cases at the Commission indicated a willingness on the part of arbitrators to expand the concept of caregiver to take into account the multitude of ways that families organize themselves today.2 It was argued that the services provided by Queen Street to Ms. McCabe and Tony were akin to those provided by a day care centre to many working families. As such it did not displace Ms. McCabe from her role as Tony's primary caregiver.
I do not agree.
Firstly and most clearly the section requires that the person claiming the benefit reside with the person in need of care. Ms. McCabe did not claim to reside with Tony but argued, in effect, that Tony did not really reside at Queen Street.
Reside, according to the Oxford Canadian Dictionary, means in this context:
- (Of a person) have one's home, dwell permanently...
Ms. McCabe's argument would necessitate the reading down of the residence requirement in favour of a focus on the nature of the services being provided to the person in need of care. In interpreting the Schedule, I am required to read it as it is written and not with a view to achieving what might be considered a more fair result in a particular case.
The dilemma for Ms. McCabe and her family after her parents passed away is not one anyone would wish for. I accept Ms. McCabe's evidence that she would have taken Tony in to live with her and only did not do so because of her medical challenges. However, the fact remains that Tony did not have his home with and he did not dwell permanently with Ms. McCabe.
On the contrary, Tony lived or resided at the Queen Street Mental Health Centre. Except for occasional visits to the McCabe home, primarily on weekends but other times as well, he spent almost all of his time there. The nature of the services provided to him were not analogous to those of a day care centre which, for example, provides care and supervision to children for a period of time during the working day, typically. Although the services provided by Queen Street may have been not to Tony's liking or may in other ways be seen as inadequate, the fact remains that the necessaries of life are provided to Tony at and in the Queen Street facility by the staff of Queen Street and not in Ms. McCabe's home.
Perhaps less clearly, but it is also a conclusion that the evidence compels, Ms. McCabe was not the primary caregiver for Tony as that term is understood in the Schedule.
The services provided by Ms. McCabe were important for Tony's well being, perhaps even essential in some sense, and can easily be characterised as caregiving services. As important as the services provided by Ms. McCabe were, they were provided, not in a systematic way, but on an ad hoc basis; not on a daily basis but when, and as often as, Ms. McCabe could attend at Queen Street. The role of a primary caregiver, even with all of its shortcomings, was performed collectively by the staff at Queen Street. It was these people and this facility that day in and day out, twenty-four hours, seven days a week, provided for Tony's physical needs.
I find, therefore, that while Ms. McCabe did many important things for Tony, her primary role was as an emotional support. She visited Queen Street to be there with him, providing emotional and some material support to maintain his contact with the family and the outside world, and not primarily as a caregiver for him.
EXPENSES:
The parties made no submissions about expenses. I leave it to them to resolve this issue in accordance with the relevant provisions of the Dispute Resolution Practice Code.
December 5, 2003
David Muir Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 174
FSCO A03-000938
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ANTOINETTE MCCABE
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. McCabe is not a primary caregiver as contemplated by section 13 of the Schedule.
December 5, 2003
David Muir Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
- See for example the two decisions provided by Guarantee and relied on by both parties: Henry and Allstate Insurance Company of Canada (OIC A01-011487, January 12, 1996), wherein an elder sibling was found to be the primary caregiver of three younger children, and Reda and Wawanesa Mutual Insurance Company, (OIC A96-001230, January 20, 1998), where the issue was whether or not the grandmother of two children was their primary caregiver because the children's mother was otherwise occupied much of the time with other familial responsibilities. These decisions do not support Ms. McCabe's position in this arbitration.