Service providers can potentially provide attendant care from across the planet, according to a new Superior Court decision in Shawnoo v. Certas Direct Insurance Company. Text messaging, Face Timing, emailing and telephone calls can all qualify as the provision of attendant care services for the purposes of ss 19(1), 19(2), 42(1) and 42(2) of the SABS.
Justice Garson released his decision at the end of December finding that attendant care services can be provided from a distance via electronic means. The decision also discusses ss 3(7)(e)(iii)(A) of the SABS in relation to whether or not attendant care services were provided in the course of employment, occupation or profession in which the service provider would ordinarily have been engaged, but for the accident.
The Plaintiff, Misty Shawnoo, suffered a catastrophic brain injury as a result of a December 12, 2010 motor vehicle accident. Misty's mother, Cheryl, is a certified healthcare aid but had not been working for remuneration as a PSW for at least two years prior to the accident. Instead, she was receiving Ontario Works and spending her time assisting a relative who had been diagnosed with schizophrenia.
Misty's roommate, Chenoa, is a certified child and youth worker employed both before and after the accident with the John Howard Society.
As a result of the accident, Misty developed issues regarding impulsivity and risk-taking, such that she required constant monitoring and supervision. Both Cheryl and Chenoa provided some attendant care services to Misty including some services by way of electronic communication such as telephone calls, emails, Face Time, text messaging and other electronic means, for the years 2011, 2012 and January to July 2013. It was also noted that Chenoa provided other attendant care services (feeding and basic supervisory care) for Misty in the evenings and on weekends when she was not working.
Attendant Care Claims by Chenoa
With respect to the claim for attendant care provided by Chenoa, Justice Garson was unable to find that the services were provided in the course of her employment, occupation or profession in which should would ordinarily have been engaged but for the accident.
In Justice Garson's opinion the question to be answered was whether a professional child youth worker working to provide services to her roommate during evenings and weekends with no qualifications as a PSW or healthcare aide could provide attendant care services in the manner required for the purposes of section 3(7)(e)(iii)(A) of SABS-2010.
Chenoa's curriculum vitae was reviewed along with her job duties as a child youth worker. Justice Garson specifically noted that she did not possess the qualifications of a PSW or a healthcare aide.
Justice Garson found as follows,
"Applying a broad interpretation to the legislative provisions in question and accepting that the goal of the legislation is to reduce hardship on accident victims, I am still unable to conclude that Chenoa possessed the appropriate professional qualifications to provide the attendant care required by MS in the sense require by section 3(7)(e)(iii)(A) of SABS-2010."
Attendant Care Claims for Cheryl
The attendant care claims made for services provided by Cheryl were somewhat more problematic for Justice Garson.
Certas relied on Simser v. Aviva Canada Inc., a decision of Director Delegate Blackman, for the proposition that the relevant service provider must have provided goods or services in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged.
Justice Garson noted that there could be little doubt that the intent of the drafters of SABS-2010 was to reduce the threshold or eligibility for attendant care benefits. He wrote that,
"Applying a broad interpretation to the legislative provisions in question and accepting that the goal of the legislation is to reduce hardship on accident victims, I am still unable to conclude that Cheryl provided her services "in the course of the employment occupation or profession she would ordinarily have been engaged in, but for the accident".
The fact that prior to the accident Cheryl was not employed for remuneration as a PSW or healthcare aide and that there was no evidence she was actively seeking such employment or likely to receive an offer for such employment was problematic for the purposes of ss 3(7)(e)(iii)(A).
In the end, Justice Garson was not satisfied that, but for the accident, Cheryl would ordinarily have been engaged in healthcare services employment.
Electronic Attendant Care Services
The issue of whether attendant care services can be provided from a distance via electronic means had not been addressed by any court or arbitration decision. Justice Garson referred to ss 19(2) of the SABS which provides that the amount of a monthly attendant care benefit is to be determined in accordance with an "Assessment of Attendant Care Needs" form referenced in section 42. The only section in the assessment form under which attendant care is allocated for electronic services is that dealing with supervisory "custodial care" due to changes in behaviour.
According to Justice Garson, where cognitive or behavioural impairment is at issue, an attendant may be required to cue, remind or prompt a person to perform certain activities, such as attending appointments or other activities that the person would not partake of on their own. It was found that an attendant did not need to be in the immediate physical presence of the injured person to be able to provide these types of services.
"We live in a world where we can Skype our relatives across the planet and appear in court by way of closed-circuit television or telephone. Tele-health Ontario offers an array of services to Ontarians by phone and many remote communities benefit from virtual meetings with medical specialists in larger urban centres. Simply put, there is an abundance of legal and medical services appropriately proffered and received by electronic means in 2014."
Although Justice Garson found that the services did not meet the definition of "incurred" in accordance with ss 3(7)(e)(iii)(A) of the SABS, the attendant care was still "provided" by Cheryl and Chenoa by way of electronic means despite that at times there was no physical proximity between the provider and the Plaintiff.
Interestingly, the parties had agreed for the purposes of the motion that an economic loss had not been sustained by the service providers such at ss 3(7)(e)(iii)(B) would not apply (ie the provision that requires non-professional service providers to sustain an economic loss in order for services to be incurred). We query what would the result would have been if the cell phone/electronic device invoices had been submitted as proof of an economic loss for the services providers. In other words, does this decision open up a new potential claim for economic loss under ss 3(7)(e)(iii)(B) for non-professional services providers? If the attendant care services are being "provided" by the electronic means then would the associated cost with providing those services not be considered an economic loss and open insurers up for the full cost of attendant care services being claimed if the threshold test set out in the Court of Appeal decision of Henry v. Gore Mutual Insurance Company, 2013 ONCA 480 (CanLII) is followed?
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