Background
In 18-003926 v. Aviva General Insurance Company, the Applicant, YK, was involved in a serious accident on September 4, 2011. The severity of his injuries resulted in his brother, JK, providing attendant care and housekeeping services for YK. JK left several part-time jobs to provide these services. As YK was designated as catastrophically impaired by the insurer, he was approved for $6,000 a month in attendant care benefits.
Analysis
There were several issues before Vice-Chair Lester at the in-person hearing, including whether the February 1, 2014 amendments to the SABS applied to this earlier accident.
At the time of the accident, the SABS stated that an insurer shall pay for all reasonable and necessary attendant care expenses “incurred” by or on behalf of the insured person. In addition, the provider must prove that they have sustained an economic loss. Initially, as $6,000 was approved for his attendant care needs, the insurer paid that much each month for YK’s attendant care needs.
This changed with the LAT amendments on February 1, 2014. As a result of the amendments, the amount of attendant care payable to non-professional providers would not exceed the amount of economic loss sustained by the provider when providing the attendant care. Vice-Chair Lester found that the amendments applied to all accidents that occurred on or after September 1, 2020. An insured does not have a vested right to a particular version of the SABS. Vice-Chair Lester cited caw law that found a vested right to a specific iteration of the SABS would be in contradiction of s. 268(1) the Insurance Act which provides for accident benefits to be provided on the basis of the SABS and “any amendments to the Schedule”. The insured’s rights in the SABS are not akin to a contract with vested rights because they have no input into the SABS and they can be amended without their consent. As a result, the only attendant care benefits payable to JK had to be equal to his proven economic losses.
Takeaways and Conclusion
YK’s entitlement to attendant care benefits was equal to JK’s economic losses when providing attendant care for his brother. This is an example of how insurers can change their adjustment of the file in accordance with amendments to the SABS. A consequence of this decision and the SABS amendment is that insured individuals and their non-professional providers will argue for a more expansive definition of “economic loss” including loss opportunities, pay raises, and fringe benefits. This is what the rest of the decision Vice-Chair Lester had to address and I highly recommend reading those sections of the decision as well.
Brendan Sheehan is the author of this blog and member of the License Appeal Tribunal group at the firm. If you have a question about this decision or a similar file, please contact Brendan at 416-777-5242.
