On October 31, 2014, Arbitrator Fadel released his decision in
Josey and Primmum Insurance Co.1 In this case,
the sole issue was whether the Applicant was entitled to attendant
It was agreed that the Applicant required attendant care as a
result of the injuries he sustained in the motor vehicle accident
on December 11, 2011. The quantum of the attendant care
benefit, if payable, was also not in dispute. The issue was
whether the Applicant had satisfied the definition of
"incurred" expenses as found in Section 3(7)(e) of the
Statutory Accident Benefits Schedule—Effective September
1, 20102 ("2010 Schedule").
The Applicant received attendant care services from his spouse,
who acted as a full-time caregiver to their three children before
the motor vehicle accident. As such, the Applicant argued
that his spouse was a person who provided care in the course of her
"employment, occupation, or profession", as per Section
3(7)(e); i.e. that his spouse was a professional care
provider. Therefore, he argued that he was entitled to the
attendant care benefits claimed without being required to prove
The Insurer argued that the Applicant's spouse's
pre-accident activities could not be described as "employment,
occupation, or profession" and therefore, for the Applicant to
satisfy the definition of "incurred", he had to
demonstrate that his spouse had sustained an economic loss.
In other words, she was not a professional care provider.
In this case, it was agreed that the Applicant's spouse had
not sustained an economic loss. As such, if she was not a
professional care provider, the definition of "incurred"
would not have been satisfied.
Arbitrator Fadel noted that the 2010 Schedule
represented a significant shift in how attendant care benefits were
payable, as compared to the prior Schedule. The
prior Schedule did not require the use of professional
care providers or proof of economic loss.
In interpreting Section 3(7)(e), Arbitrator Fadel stated that a
plain reading of the provision required that a professional care
provider (usually an arm's length individual) be reimbursed for
services provided in the course of his/her employment,
occupation, or profession. This implied that remuneration was
an aspect of that service. Also, the provision made clear
that the intention was that family members must prove that they had
sustained an economic loss in order to be reimbursed for attendant
care services from the insurer.
Arbitrator Fadel opined that if a family member was trained
and/or working as a professional in the health care industry,
attendant care benefits would be payable for any work he/she did
for the insured person "in the course of the employment,
occupation, or profession in which he or she would ordinarily have
been engaged, but for the accident."
Arbitrator Fadel agreed with the Insurer that the 2010
Schedule did not contemplate that a stay-at-home parent
would be considered someone providing attendant care services in
the course of their employment, occupation, or profession.
This was not the intent of the Legislature, especially given the
requirement in Section 3(7)(e) that a family member must prove an
As the Applicant's spouse was not a professional care
provider and had not sustained an economic loss, Arbitrator Fadel
therefore found in favour of the insurer and dismissed the
This decision offers further clarification regarding
"incurred" expenses pursuant to Section 3(7)(e) of the
2010 Schedule. It is not enough for an insured
person to demonstrate that he or she received attendant care
services that were reasonable and necessary.
This decision highlights the need for documentation to be
requested by insurer in support of an attendant care claim to
ensure that the expenses have been "incurred". For
claims governed by the 2010 Schedule, the insured person
must demonstrate that the care was provided by either a
professional care provider in the course of his or her employment
or by a friend or family member who sustained an economic loss.
1.FSCO A13-005768 (Arbitrator Fadel, October 31,
In an October 3, 2016 preliminary issue hearing Adjudicator Marzinotto of the License Appeal Tribunal allowed an applicant to proceed to a hearing disputing both entitlement to Income Replacement Benefits and Non Earner Benefits.
On August 4, 2016, the Ontario Court of Appeal released its decision in Intact v. Allstate and changed the correctness standard of review for appeals from private arbitrations to one of reasonableness.
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