In Henry v Gore Mutual Insurance Co,1 the Court of Appeal for Ontario elucidated on how attendant care benefits are calculated under the new SABS-2010. The Court stated that if the caregiver leaves his or her current employment to care for the plaintiff, that individual will be entitled to the maximum amount payable under the SABS-2010 ($6,000), and not the amount of that caregiver’s lost income, nor a proportion of the attendant care expenses based on the number of hours that the caregiver spent caring for the plaintiff.
Henry dealt with a catastrophically injured plaintiff as a result of a motor vehicle accident that occurred on September 28, 2010. This case turned on the interpretation of the term "incurred," as defined in section 3(7)(e) of SABS-2010, which states that:2
For the purposes of this Regulation,
(e) ..., an expense in respect of goods and services referred to in this Regulation is not incurred by an insured person unless,
(i) the insured person has received the goods or services to which the expense relates,
(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
(iii) the person who provided the goods or services,
(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
(B) sustained an economic loss as a result of providing the goods or services to the insured person;
The service provider, the plaintiff’s mother, left her full-time job (earning $2,100 per month) to care for her son. Rather than paying the service provider her lost income, Gore Mutual (“Gore”) paid the service provider $2,117.40 per month. Gore argued that the economic loss sustained by the service provider should be proportionate to the attendant care expenses and the number of hours that the provider cared for the plaintiff:
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...
The Court rejected Gore’s approach, citing that under the new SABS-2010, economic loss serves as a threshold for entitlement. Once this threshold is met, the plaintiff is entitled to reasonable and necessary attendant care benefits. Henry's attendant care needs were assessed at about $9,500 per month on a Financial Services Commission of Ontario (FSCO) Assessment of Attendant Care Needs form, commonly known as "Form 1." Since Gore did not dispute the needs as set out in Form 1, Gore were ordered to pay $6,000 per month, the maximum payable under the SABS-2010.
The Court refused to define “economic loss” stating it was not a live issue, despite the fact Henry’s mom clearly suffered an “economic loss” as a result of leaving her full time job. This case has limited application as only a minority of cases involve a caregiver abandoning full-time employment to care for an injured plaintiff.