Jan 10, 2017
The first of Bevin Shores' three-part review of notable SABS decisions rendered during the latter part of 2016
Author Michael S. Teitelbaum
Many thanks to our Bevin Shores who has summarized a number of notable SABS decisions from the latter part of 2016, in three parts.
The first part, pasted below, deals with economic loss and the “incurred” definition (Keeping; Barnes
) as well as the definition of an “accident” under the SABS (Carr
) and production issues at the LAT in which our Shikha Sharma acted for the insurer (MM
Keeping and Aviva (FSCO A14-003770, October 31, 2016): This decision is notable for the finding of Arbitrator Mongeon on the need to show that the economic loss occurs for each expense, as opposed to “once and for all.” FSCO Arbitrator Mongeon stated: “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.” The discussion begins on page 12 of the PDF version of the decision from the FSCO website (the paragraphs are not numbered).
Carr and TD (FSCO Appeal P15-00062, November 17, 2016): In this decision, FSCO Director’s Delegate Feldman found that a fall from a fire truck that children were permitted to enter during a birthday party for education and entertainment is an “accident” within the SABS definition, and Arbitrator Ellen Fry below erred in finding it was not. Materially, Director’s Delegate Feldman stated: “It is logically inconsistent and an error in law for the Arbitrator to have found that it is an ordinary and well-known use of fire trucks to invite children to enter the passenger compartment for purposes of education and entertainment (i.e., that this is a normal and well-known use of this type of vehicle) but to hold that when the vehicle is being used for just such a purpose, it ceases to be used as a vehicle” (on page 9 of the PDF version of the decision from the FSCO website; the paragraphs are not numbered). Additionally, “there cannot be a more normal use of any vehicle than exiting the vehicle. Ms. Carr was invited into a parked vehicle and she was injured while in the process of exiting that vehicle” (pages 9-10).
Barnes and MVAC Fund (FSCO A13-005372, November 22, 2016): This decision is notable for several points pertaining to attendant care and the “incurred” definition:
- The caregiver’s unpaid visitor expenses are not an “economic loss” within the meaning of the “incurred” definition. Attendant care was claimed to have been provided while the claimant was in hospital, evidently for services over and above what hospital staff were providing. FSCO Arbitrator Sone did acknowledge that in other cases unpaid visitor expenses may constitute an “economic loss” within the meaning of the “incurred” definition (page 14 of the PDF version from FSCO website); however, on these particular facts, which included the fact that the alleged care provider did not provide any receipts for her expenses, they were not (page 18).
- The caregiver’s missed time from work was not an “economic loss” because she was paid vacation and sick pay in the same amount as her normal pay (page 17).
- With the “economic loss” portion of the “incurred” definition satisfied, the full Form 1 amount is not necessarily payable if the claimant is not receiving all of the services identified on the Form 1. Arbitrator Sone pointed out that this point had not been considered in Henry v. Gore Mutual Insurance Company  OJ No 2928 (SCJ) and TTC and Marcus (FSCP P14-00005, September 19, 2014) (page 28). Arbitrator Sone stated at page 29: “The attendant care benefit under the 2010 Schedule pays for incurred expenses for attendant care services, not for needs. The needs, as calculated pursuant to a Form 1, provide a pre-approved monetary limit up to which the incurred expenses will be paid. Ms. Barnes must prove on a balance of probabilities that she incurred expenses for attendant care services as defined in subsection 19(1) of the Schedule in order to be entitled to the benefit. Part of the requirement of an “incurred” expense is that Ms. Barnes must have received the attendant care services from either a professional service provider or one who sustained an economic loss under paragraph 3(7)(3) of the Schedule.”
- This decision is also notable for the finding that the February 1, 2014 amendment to s 19(3)(4) of the SABS (providing that the quantum of attendant care shall not exceed the amount of the economic loss sustained by the care provider) affects a substantive right and therefore does not apply retrospectively to attendant care services provided after February 1, 2014 (pages 35-36; note that the date of the MVA was January 3, 2012, i.e., before the February 1, 2014 amendment took effect).
MM and Northbridge (16-000682 AABS, November 29, 2016): Despite the efforts of Hughes Amys’ own Shikha Sharma in this preliminary issue hearing at the LAT, the claimant was permitted to adduce evidence, including expert evidence, that was served outside the production deadline specified in the Tribunal’s order following the case conference. With respect to the expert evidence, which was also served outside the Rule 10 timeline, the insurer was given 30 days to submit responding material in response to the expert report. This decision appears to be consistent with some anecdotal reports of adjudicators taking a very lenient approach in respect of the LAT Rules, which can create problems in light of the very tight timelines that are being adhered to strictly. One would expect, however, that similar reasoning would apply if the roles were reversed: if, for example, an insurer sought to admit evidence that was not available prior to the case conference, it would be admissible under similar circumstances as in MM.