ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-53580
DATE: 20120627

BETWEEN:

TYRONE HENRY APPLICANT – and – GORE MUTUAL INSURANCE COMPANY RESPONDENT

Joseph Obagi, for the Plaintiff

Carlie Flynn, for the Respondent

HEARD: June 21, 2012

REASONS FOR DECISION

T.D. RAY, J.

Introduction

[ 1 ] This application is brought under Rule 14.05(d) and (h) of the rules of civil procedure, by the applicant to determine a dispute that has arisen with the respondent, Gore Mutual Insurance Company, (“Gore”) concerning the quantum of attendant care payable to the 18 year old applicant for services rendered by his mother, in light of the definition of “ incurred” expense at section 3(7)(e) of the recently enacted SABS-2010 , in order to calculate the amount payable for attendant care pursuant to the Insurance Act and the Statutory Accident Benefits Schedule , O. Reg. 34/10. Section 19 .

[ 2 ] The applicant is catastrophically injured as a result of a motor vehicle which occurred September 28, 2010. His significant attendant care needs were assessed at approximately $9,500 per month. Those are agreed. The maximum payable to the applicant by Gore under the SABS [1] for attendant care is $6,000 per month with a lifetime maximum 0f $1,000,000.00. That too is not in dispute.

[ 3 ] Since the applicant has elected to have his mother provide attendant care, Gore has calculated that its liability for attendant care payments to the applicant are limited to the number of hours that the applicant’s mother had been working as a proportion of the total attendant care hours assessed as reasonable. [2] The applicant takes the position that since the Form 1 Assessment is agreed to by Gore that, it should pay the maximum of $6,000, not a proportional amount based on the applicant’s mother’s number of lost hours from work.

Background

[ 4 ] The applicant’s mother took a leave of absence from her fulltime employment as an assistant manager for a retail store in order to provide care to her son. It is accepted that she worked 40 hours per week with a salary of approximately $2,100 per month. As provided in the SABS, Gore sought and obtained the mother’s record of employment for the purpose of determining whether

“...an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(iii) the person who provided the goods or services,

(B) sustained an economic loss as a result of providing the goods or services to the insured person; [3]

[ 5 ] Gore took the position that if the service provider (the applicant’s mother) could show that she had sustained an economic loss then the expense payable to the applicant would be to indemnify her “to the extent of their (her) financial loss”. [4] However, rather than paying her lost income, it calculated her number of hours and paid her a proportion of the attendant care expense. That calculation can best be explained by quoting Gore directly from the motion record [5] :

Based on the Form 1 submitted by Darlene Matheis dated January 17, 2011, I reviewed the amount of care required under each level of care each day and apportioned that into an 8 hour day. Care under level 1 amounted to 1.52 hours of the 8 hour day, care under level 2 amounted to 4.37 hours of an 8 hour day and care under level 3 amounted to 6.37 per day. I then multiplied by the hourly rate set out in the Form 1 “Assessment of Attendant Care Needs’* payable in respect of each type of care.

.........Attendant care was calculated at $105.87 per week, or $2,117.40 per month...

[ 6 ] The applicant continued to submit an OCF-6, Expenses Claim Form, claiming $6,000 per month on the basis that the applicant’s mother was providing all of the attendant care for the applicant.

Analysis

[ 7 ] In 1990, Automobile Insurance in Ontario witnessed the advent of limits on tort compensation for innocent victims of automobile accidents, and replacement with a scheme of enhanced benefits for all injured parties without regard to fault. [6] Both the limitations on tort based damages as well as no-fault benefits have been revised on an almost continuous basis since then with the stated intent to maintain some limits on insurance costs, as well as to maintain limits on no fault benefits. This latest revision was apparently to prevent a member of an insured’s family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway - and would have looked after the injured insured without compensation. [7]

[ 8 ] The amended regulation retained the requirement that the insurer pay all “reasonable and necessary expenses” for attendant care, but required that they be incurred by or on behalf of the insured person.... “ Incurred ” is defined in the amended regulation to require that the insured person has “paid the expense, has promised to pay the expense, or otherwise legally obligated to pay the expense” , and that the person who has provided the service has “ sustained an economic loss as a result of providing the goods or services........”. [8]

[ 9 ] ‘Economic loss’ is not defined in the regulations. If the amount as opposed to the fact of the economic loss were intended to be relevant, then one would expect the regulations to be of assistance in calculating the amount, since economic loss has been defined in very broad terms in claims for compensation in tort law cases, and has been the subject of a great deal of jurisprudence because of the difficulty in quantification. This omission implies that no such calculation is relevant beyond a finding that the person has “ sustained an economic loss ” – or not. It is a threshold finding for “incurred expense”, but is not intended as a means of calculating the quantum of the incurred expense. I accept that the amended provisions now eliminate claims by non professional service providers who have not sustained an economic loss.

[ 10 ] A plain reading of the section provides that if a family member stays home from work, loses income in order to provide all reasonable and necessary attendant care to the insured - and the insured is obligated to pay, promises to pay or does pay the family member, then the definition in section 19(1) has been met. All reasonable and necessary attendant care expenses must then be paid to the insured as described in the Form 1 [9] ,

[ 11 ] I have not attempted to quantify or perform an accounting of what has or has not been paid by Gore for the applicant’s attendant care, and if the parties cannot agree and wish to make further submissions concerning the accounting, they may contact the trial coordinator to make those arrangements.

[ 12 ] Both parties filed costs outlines at the conclusion of argument in accordance with the rules. If they cannot agree on costs, they make submission of two pages or less with a right of reply. If I do not hear from the parties by August 15, 2012, I will assume they have resolved the costs issue.

Honourable Justice Timothy Ray

Released: June 27, 2012

COURT FILE NO.: 12-53580
DATE: 20120627

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: TYRONE HENRY APPLICANT – and – GORE MUTUAL INSURANCE COMPANY RESPONDENT REASONS FOR JUDGeMENT Honourable Justice Timothy Ray

Released: June 27, 2012

[1] S. 19(1)(2) and (3), Statutory Accident Benefits Schedule , (Effective September 1, 2010)O. Reg. 34/10. Section 19.

[2] Form 1, Assessment of Attendant Care Needs, Matheis Therapy Services dated January 17, 2011. Not disputed by Gore. A new assessment, dated March 12, 2012 assessed the attendant care needs at $993.00. That also is not in dispute.

[3] S. 3(7)(e)(ii) B, Statutory Accident Benefits Schedule,

[4] Letter, May 20, 2011, Gore to the applicant’s solicitors

[5] Affidavit of Joanne MacKenzie, Claims Accident Benefits Specialist, Gore Mutual Insurance Company

[6] Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R. O. 1990, Reg. 660/93.

[7] In 1994, the attendant care benefits were expanded to include payment to family members, and in 2002, the benefit was clarified in F.(L) and State Farm (FSCO P02-00026, June 3, 2004) that payment by the insured to a family member for attendant care was not a precondition to payment by the insured for attendant care benefits for a family member. The only requirement was that the services be reasonable and necessary. This was seen as something that needed to be changed and was addressed in the amended Statutory Accident Benefits Schedule – Effective September 1, 2010 , Ont. Reg. 34/10, section 19.

[8] S. 3(7)(e)(ii) B, Statutory Accident Benefits Schedule,

[9] up to the maximum in this case of $6,000 per month.