The Court of Appeal has released its decision in Henry v. Gore, unanimously upholding the motion judge’s decision on the meaning of the “economic loss” threshold under the new SABS-2010.

Henry was catastrophically injured in a motor vehicle accident on September 28, 2010. The Form 1 indicated his attendant care needs were approximately $9,500 per month. The maximum payable under the SABS is $6000 per month. Gore did not dispute the needs as set out in the Form 1.

Henry’s mother provided the attendant care services post-accident. At the time of the accident, she had been working full-time as an assistant manager for a retail store. She earned $2,100 per month. She took a leave of absence to care for her son, after the accident.

Gore took the position it would indemnify the service provider (Mr. Henry’s mother) to the extent of her financial loss. Rather than paying her lost income, it calculated the number of hours and paid her a proportion of the attendant care expenses. Gore paid the service provider $2,117.40 per month in attendant care benefits. Henry applied to the Superior Court for a determination of the proper amount of attendant care benefits.

In ruling for the claimant, the judge took a plain reading of the legislation and found that if a family member stays home from work and loses income in order to provide attendant care services, the definition of incurred has been met. The term “economic loss” is not defined in the regulations.

Accordingly, Gore was ordered to pay attendant care at a rate of $6,000 per month.

The Court of Appeal agreed with the motion judge and dismissed Gore’s appeal. The Court held that under the SABS-2010, economic loss serves as a threshold for entitlement to (and not as a measure or factor in quantifying the amount of) reasonable and necessary attendant care benefits to be paid by an insurer.

Of note to the industry is that the Court of Appeal refused to provide its own definition of “economic loss” despite Gore’s request to do so. Gore argued that because “economic loss” is not defined in SABS-2010, insurers risk facing claims for attendant care benefits founded on wide and expansive interpretations of “economic loss”, or de minimis financial or monetary loss (such as subway token expenses). Gore argued that if this transpired, the reduction in attendant care costs the legislature sought to achieve with SABS-2010 would not be achieved. However, the Court of Appeal declined to define “economic loss” because on the facts ofHenry the economic loss was clear: the mother gave up her full time job to care for the claimant.

On this issue, the “good” news is that in many cases insurers should be able to distinguish Henry from those cases where the economic loss is unclear. The subway token expense comes into mind again. In other words, minimal “economic losses” might not be enough to get a claimant over the incurred attendant care threshold, despite Henry.

Of course we now wait to see what FSCO’s appellate division does with Simser v. Aviva.

Read the Court of Appeal's decision in Henry v. Gore