On July 16, 2013 the Ontario Court of Appeal released their decision in Henry v. Gore Mutual. Gore Mutual appealed the June 2012 decision of Justice Ray of the Superior Court. Justice Ray determined that if a family member stays home from work and loses income, while providing reasonable and necessary attendant care, and then the insured is obligated to pay all attendant care as described in the From 1. He held that economic loss as described in the Statutory Accident Benefits Schedule is a threshold finding for incurred expense, but it is not intended as a means of calculating quantum.
Justice Hoy, speaking for the Court of Appeal, agreed with Justice Hoy and dismissed the appeal. She found that the requirement of economic loss provides a rough check on attendant care costs and once a family member sustains an economic loss, attendant care benefits are payable as detailed in the Form 1. As long as the care was provided, the amount payable in the form 1 will not be reduced by the number of employment hours lost by the family member.
Interesting to note is the fact that Mr. Henrys mother took an unpaid absence from work in order to provide him with the full-time attendant care he required. The losses sustained were specifically income loss and they were significant. This is important to consider when looking at this decision because the court was not determining whether incidental economic losses met the threshold, ie. paying for gas to drive to the injured persons home. In addition, at the time of the appeal, Mr. Henrys mother continued to provide attendant care but had returned to work; however, Mr. Henry conceded that he was no longer entitled to attendant care benefits in respect of the ongoing care provided by his mother. This raises the question when does the threshold stop? Does an economic loss have to be re-established weekly, monthly or with each subsequent Form 1?
Clearly there are still grounds for dispute including ongoing attendant care provided when the provider is no longer missing work, economic losses that are not income losses, and care provided by multiple family members, not all of whom have sustained an economic loss.
Written byJan Marin l Lawyer, Gluckstein Personal Injury Lawyers