It has long been unclear from the attendant care provisions in the Statutory Accident Benefits Schedule (SABS 2010) whether the "economic loss" component of the "incurred" definition need only be proven once to generate benefit entitlement or if it needs to be proven periodically as attendant care expense claims are submitted.
The recent FSCO decision of Arbitrator Mongeon in Keeping and Aviva Canada Inc. (FSCO A14-003770), dated October 31, 2016, sheds some light on this longstanding area of regulatory ambiguity.
The concept of "incurred", defined in subsection 3(7)(e) of the SABS 2010, acts as a threshold for entitlement to attendant care benefits (among others), in conjunction with the criteria set out in section 19. One of the most controversial components of the "incurred" definition is the requirement that the person providing attendant care goods or services in a non-professional capacity sustain an "economic loss" as a result of providing those goods or services to the insured person.
Following changes effective February 1, 2014 to the SABS 2010, the concept of "economic loss" now acts not only as one of the requirements for benefit entitlement, but also as a cap on the quantum of benefits payable for accidents on or after the transition date where care is rendered by a non-professional service provider.
Further changes to the attendant care section were brought in even more recently by Ontario Regulation 251/15, which added that if a service provider is paid for providing attendant care, and this amount is less than the amount on the applicable "Assessment of Attendant Care Needs" form (Form 1), then the insurer is only liable to pay the actual incurred expenses. Previously, case law had suggested that even if a service provider was actually paid less than the Form 1 amount, the insurer remained liable for the full Form 1 amount.
A body of case law has grown around the term "economic loss" (which is not defined in the SABS), primarily focused on what is or is not an "economic loss". In Simser and Aviva, Arbitrator Lee adopted the definition of "economic loss" from Black's Law Dictionary and held that it must relate to some form of financial or monetary loss. This conclusion was upheld on appeal.
In Keeping and Aviva, the claimant was injured in a serious motor vehicle accident on June 4, 2013. He was unlicensed at the time and collided with a tree at high speed. His front seat passenger was killed and two rear passengers sustained serious injuries. One of the issues before the arbitrator was whether the claimant was entitled to receive attendant care benefits and if so, for what periods and in what amounts.
As a result of the accident, the claimant was hospitalized for a number of weeks and deemed catastrophically impaired by the insurer, giving him access to up to $6,000.00 per month in attendant care benefits for "incurred" expenses.
Following discharge from the hospital, the claimant lived with his mother for a time, then with a friend, and then with Ms. Graham, who was the only witness to testify to corroborate the claimant's position that his service providers sustained an economic loss. He subsequently spent time in a youth detention centre for charges related to the accident, and upon release stayed with his grandmother and a number of friends for various periods of time.
In his analysis, Arbitrator Mongeon found that the only period for which attendant care services were actually provided was when the claimant was residing with Ms. Graham. This finding was based primarily on the lack of evidence with respect to any other service providers.
In answering the question "Does economic loss have to be periodically proven or is it a once and for all test?" the arbitrator referenced the decision in Henry and Gore, which characterized the "economic loss" test as a "rough check" on the payment of attendant care. Arbitrator Mongeon elaborated on this characterization:
The rough check to be applied, the need to show the economic loss, occurs for each expense. Each time the Insurer is required to consider a monthly payment of attendant care services, the Applicant has an onus to show the economic loss. In the case of multiple people providing services, as the Insurer has argued, those multiple people must each provide evidence of economic loss.
It is not sufficient to show an economic loss at some time during the entire passage of time from one person. (emphasis added)
Ultimately, the arbitrator found that attendant care was payable in relation to the services provided by Ms. Graham. This was despite a lack of evidence to support her expenses. The arbitrator nonetheless found her to be a credible witness and applied Aidoo and Security National, confirming that "oral testimony alone may be sufficient to establish economic loss."
Despite confirming the Aidoo and Security National principle that sets a relatively low bar for claimants to prove economic loss at a hearing, Keeping and Aviva is nonetheless valuable in that it finally sheds light on how often economic loss must be proved. For the moment at least, this puts to rest the debate over whether once is enough to justify benefit entitlement. In accordance with this decision, insureds are expected to show that their non-professional service provider has sustained an economic loss for each monthly payment of attendant care services, effectively clarifying – and arguably tightening up – the test for attendant care benefit entitlement.
See Keeping v. Aviva, FSCO A14-003770
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