Section 19 of the Statutory Accident Benefits Schedule (SABS) requires insurers to fund all reasonable and necessary attendant care services. To be payable, the expenses must be incurred by or on behalf of an injured person. When the care services are provided by non-professionals, such as the insured’s family member or a friend, section 3(7)(e) of the SABS requires the care provider to produce evidence demonstrating that he or she sustained an “economic loss” due to the provision of such care to the injured person. Typically, the LAT has accepted proof of actual pecuniary loss caused directly by providing such services. However, in the recent decision of Rida v. Wawanesa, the LAT found that lost educational opportunities satisfy the “economic loss” provision of section 3(7)(e).
In Rida v. Wawanesa, the applicant, H.R., was deemed catastrophically impaired from a 2011 motor vehicle accident. In 2018, she claimed monthly attendant care benefits of $1,553.71. The care services were provided by her daughter, R.R. The automobile insurer, Wawanesa, accepted entitlement to the monthly quantum. However, it argued that only an actual monetary or financial loss qualified as an “economic loss” within the meaning of the Schedule.
H. claimed that her daughter R. sustained an economic loss by providing her attendant care services, rather than attending law school and earning income after graduation. In the Fall of 2021, R. was accepted to law school in the United Kingdom. She chose not to attend, and instead stayed in Ontario to care for her mother. In the Fall of 2022, R. began a 4 year full-time Bachelor of Arts program in Ontario. In December 2022, she started part-time employment while continuing to care for her mother. R. claimed that she reduced her weekly work shifts to accommodate for her care giving services. In total, H.R. claimed an economic loss of $10,936.29 for expenses that her daughter had either incurred or forfeited for tuition, pre-paid housing costs, travel charges and incidentals. She also claimed an economic wage loss of $19,142.56.
Relying on the Divisional Court’s decision in Simser v. Aviva Canada, 2015 ONSC 2363, Adjudicator Malach accepted the claim for $10,936.29, finding that the law school-related expenses would not have been lost had R. decided not to forego attending law school to care for her mother. In Simser, the Divisional Court affirmed that “economic loss” means a monetary or financial loss, not just a loss of time by the care provider that could have been used to earn income. But the Simser Court did not preclude certain lost opportunity costs, such as where a person deferred graduation to provide attendant care services and thus postponed earning income.
In Rida, Adjudicator Malach dismissed the $19,142.56 wage loss claim. She found that the applicant mitigated her losses when her daughter enrolled full-time in the Bachelor’s program in 2022. After that point in time, she found the evidence of economic loss wanting. She found insufficient evidence for a loss caused by enrolling in the Bachelor’s program instead of the UK law school. She found no evidence to establish that had R. stayed in law school, she would have secured an employment position while she attended school. Nor did she find evidence that the daughter reduced her part-time employment hours because she provided the attendant care.
The LAT’s decision in Rida is a balanced one that follows the Divisional Court’s guidance in Simser. The LAT recognized that while the lost law school expenses flowed directly from the attendant care provided, the future wage loss claim was more theoretical and attenuated. To succeed on an economic loss claim in the context of provision of attendant care by a non-professional, the onus is on the applicant to lay a proper evidentiary foundation substantiating the economic loss, such as through the provision of invoices, receipts, employment records or expert evidence. In this case, the LAT found that there was no such evidence to support the wage loss claim.
Jonathan White is the author of this blog and a member of the LAT practice group at the firm. If you have a question about this decision or a similar file, please contact Jonathan at [email protected].
