Economic loss = lost income. Period.

Henry v. Gore Mutual insurance Company, 2012 ONSC 3687

MVC September 28, 2010. Parties agreed that the insured sustained catasthrophic injuries.  Henry’s monthly attendant care need was assessed as exceeding the monthly maximum amount of $6,000 payable by the accident benefit insureer. Henry’s mother took a leave of absence from her fulltime employment to provide attendate care. Seh woored 40 hours per week earling approximately $2,100 per month. Henry sought an attendant care benefit of $6,000 per month. the insurer took the position that the mother had not sustained an economic loss since the monthly attendant care amount exceeded her earnings from employment. The insurer did not pay the mother’s lost income but rather it paid her a proportion of the assessed monthly attendant care benefit.

The SABS changes effective September 1, 2010 now require that an attendant care expense be “incurred.” “Incurred expense” is defined as a service that is received, paid for (or for which a promise of payment has been made) and that the person providing the service “sustained and economic loss as a result of providing the goods or services.” Did the mother sustain an economic loss because the monthly attendant care benefit exceeded her lost income from employment?

The Court decided that the definition of an incurred attendant care expense is met where a family member loses income because she or he has stayed home from work to provide attendant care. The insurer was required to pay the monthly maximum of $6,000 attendant care benefit.

Why is this case important? A family member who provides attendant care need not demonstrate a corresponding economic loss that is greater than the assessed montly attendant care benefit. The provider need only demonstrate that the service is provided and that he or she has lost employment income as a result.

Prepared by Karen Hulan

khulan@wallacesmith.ca