The Court's Interpretation of the Words "Incurred Expense"

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Simser v Aviva (Released January 16, 2013); and the Decision of Henry v Gore, (a Decision of Mr. Justice Ray) released June 27, 2012 Prior to September 1, 2010, Insurer's regularly paid family members to provide attendant care in appropriate circumstances.

Amendments to the Regulation which came into effect on that date required claimants to prove that they had actually "incurred" such expense.A great deal of speculation was had as to how this provision would be interpreted. A recent attempt from the Simser decision to provide Professor Jack Carr's opinion, as an Economist, that Economic Loss would include the loss of "opportunity" or "opportunity cost," has been rejected by an Arbitrator at FSCO.

The Arbitrator found that the complex economic theories proposed by Doctor Carr were not intended in the Regulation and consequently Economic Loss, in its ordinary and every day meaning, would be used i.e. Actual loss of money or money's worth.

In Mr. Justice Ray's decision in" Henry v Gore of this past year, Mr. Justice Ray dealt with a claim for Attendant Care which was made in the maximum amount of $6,000.00 per month for Attendant Care provided by a mother to her son Tyrone Henry who was catastrophically injured. The Insurance Company took the position that Economic Loss only occurred during the hours that she gave up her employment (8 hours a day, 5 days a week). When she was providing attendant care in hours other than that time frame, she was therefor not entitled to compensation according to the Insurance Company. This reduced the payment mathematically to 50% of the $6,000.00.

Mrs. Henry was indeed providing the $6,000.00 worth of attendant care but was providing it on evenings and weekends in times other than the time she ordinarily worked. In rejecting the Insurance Company's argument, Mr. Justice Ray found that an injured victim"  only had to prove that there was some Economic Loss sustained at which time the "threshold" in finding there was incurred expense was met. In other word, once Mrs. Henry proved that she had been forced to take time off work to provide attendant care, that was sufficient.

One interpretation suggested of Mr. Justice Ray's conclusion is that once it has been established by a victim that there has been Economic Loss incurred in providing an expense or service, and the threshold is met, there is no further need of proof. This begs the question as to whether or not in subsequent years if Mrs. Henry was providing attendant care and working, would she have still qualified having once proven she actually sustained such loss.

The decision of Mr. Justice Ray certainly answers the absurdity of the Insurer's rather harsh position but raises broader issues which the Court of Appeal is dealt with this May in hearing the Appeal of that case. The decision is expected shortly. The" Simser"  decision tried to rely on the" Henry v Gore decision for the proposition that if the Insurance Company has paid certain out of pocket expenses (parking fees and restaurant bills totaling $50.00) that this is an admission that the expenses are being "incurred." The Arbitrator rejected the injured victim's argument that having once accepted some expenses, that pursuant to" Henry v Gore there was no further requirement of proving that expenses had actually been incurred.


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