Henry v. Gore Mutual Insurance Company: The Court of Appeal considers attendant care benefits

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When a mother stays home from work to care for her child who has been injured in a car accident, is she to be compensated only for the hours she has lost at work, or is the accident benefits insurer required to pay her for all of the hours of attendant care that she provides to her child?  The Court of Appeal released its decision considering this issue on July 16, 2013 in Henry v. Gore Mutual Insurance Company, 2013 ONCA 480.

Tyrone Henry was made a paraplegic in a motor vehicle accident on September 28, 2010.  His mother took an unpaid leave of absence to provide him with 24 hour care.  There was no doubt that she was entitled to receive compensation from the insurer for attendant care services.  The dispute was whether she should receive compensation for 24 hour care, or whether she should just receive compensation for her time missed from work.

The Court of Appeal held that attendant care benefits were payable for all of the hours of care that the mother provided, and not just the 40 hours that she missed from work each week.

The Court of Appeal considered the legislative scheme and logic of the SABS, the language of the provision, and the legislative history of attendant care benefits in finding that the loss of time from work was simply a condition precedent, or threshold requirement, in creating an entitlement to attendant care benefits and not a measure of the amount of attendant care benefits that should be paid.

The Court of Appeal determined that once the threshold for “economic loss” had been established by the mother when she took unpaid time off from work, the measure of the attendant care benefit was the number of hours that the injured child actually required (up to the stipulated maximum of $6,000 per month and $1,000,000 for any one accident).

The insurer urged the Court of Appeal to provide a definition for “economic loss” as that term is used in the SABS.  Gore Mutual noted that insurers risk facing claims for attendant care benefits founded on wide and expansive interpretations of “economic loss”, or de minimis financial or monetary loss.  However, the Court of Appeal declined to provide a definition for this term in the context of this case.  The mother in this case had given up full time paid employment to care for her son, and there was no doubt that she had sustained an economic loss.  The Court of Appeal has therefore left for another case the question of what minimum loss is required to meet the threshold requirement of having suffered an “economic loss” to trigger an entitlement to attendant care benefits.