In other words, if the claimant's family member cannot provide proof of economic loss, he or she must demonstrate that the relevant services were provided "in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident" [Emphasis Added].

The decision in Josey v Primmum Insurance Co., states as follows:

"[t]he plain meaning of s. 3(7)(e)(iii)(A) is that a professional care provider (usually an arm's length individual) be reimbursed for services provided in the course of their employment, occupation or profession. This implies remuneration is an aspect of that service. Also, given s. 3(7)(e)(iii)(B), it is clear that the intention was that family members must prove they have sustained an economic loss in order to be reimbursed for attendant care services from the accident benefit insurer."³ [Emphasis Added]

The Schedule was amended for the very same reason to prevent family members from profiting from attendant care benefits. As stated in Josey, the amendments show:

"[D]istinct and deliberate shift in the determination of entitlement to attendant care benefits. There seems to be a concerted effort on the part of the Legislature to exclude family members from being reimbursed for attendant care services they provide to an insured without showing economic loss.⁴ [Emphasis Added]

In Henry v Gore, Justice Ray commented on the various versions of the Statutory Accident Benefits Schedule since 1990 and noted that with regard to attendant care benefits:

"This latest revision was apparently to prevent a member of an insured's family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway – and would have looked after the injured insured without compensation."⁵ [Emphasis Added]

Subsequent to the release of the Court of Appeal decision in Henry, the Legislature amended the Schedule to include s. 19(3)4, which states that:

"... if a person who provided attendant care services (the "attendant care provider") to or for the insured did not do so in the course of the employment, occupation or profession in which the attendant care provider would ordinarily have been engaged for remuneration, but for the accident, the amount of the attendant care benefit payable in respect of that attendant care shall not exceed the amount of the economic loss sustained by [the provider]..." [Emphasis Added].

The Ontario Government Regulatory Registry includes the following Summary of Decision regarding the passage of O. Reg. 347/13:

"Amendments to Ontario Regulation 34/10 (Statutory Accident Benefits Schedule – Effective September 1, 2010) have been approved. The amendments will help reduce costs and uncertainty in the system by continuing to crack down on abuse and fraud, and clarifying benefits for auto insurance claimants."⁶ [Emphasis Added]

RELEVANT CASE LAW

...cases that further assist in determining whether attendant care benefits are payable to family members...

There are few cases that further assist in determining whether attendant care benefits are payable to family members that claim to fall under the professional health care provider heading, and as such do not have to show proof of economic loss.

In AP v. Coseco, the claimant’s attendant care provider ("RP") was a "professionally trained and certified PSW" that, "finished a four week placement in the field", "was actively seeking employment at the time of the accident... [and] did go on to obtain employment as a PSW... [A]s of the hearing, [the attendant care provider was] still working as a PSW".⁷

RP successfully demonstrated that she was actively seeking employment at the time of the accident by producing evidence such as correspondence with potential employers, proof of cold calling potential employers, and resumes and job applications sent via e-mail.⁸ Therefore, the Adjudicator concluded that RP provided the attendant care services in a professional capacity.

In AP v Coseco, Adjudicator Truong stressed the importance of the claimant proving the attendant care provider was actively seeking employment. She stated as follows:

"Actively seeking employment is important, because if the individual stops seeking employment in their profession, they are no longer "ordinarily engaged in" that profession."⁹ [Emphasis Added].

In Helmer, the attendant care provider had complete credentials as a Personal Support Worker (PSW). She worked in this capacity prior to the accident and while attendant care services were being provided to the claimant.

Furthermore, Justice C. Macleod went on to state the following in Helmer:

"The LAT concluded that s. 3(7)(e)(iii)(A) requires that the service provider was "working or was looking for work at the time s/he performed the attendant care services". It was the conclusion of the LAT that subsection (iii)(A) was satisfied as long as the person providing the service was a person otherwise employed as a PSW at the time the service was required...As long as [the attendant care provider] would have been providing such services whether or not the applicant had been injured, then the applicant could be reimbursed for payments made to [the same]...The key question for the LAT was whether or not the service provider would be providing services elsewhere but for the accident."¹⁰ [Emphasis Added].

In Shawnoo v Certas, the claimant suffered a catastrophic brain injury as a result of a motor vehicle accident in December 2010.¹¹ Her mother was a certified PSW who had not worked in that field since 2006. The claimant's roommate was a certificated Child and Youth Care Worker who obtained her professional certification in 2007. Both the claimant's mother and roommate had provided some attendant care services to the claimant. Justice Garson of the Ontario Superior Court of Justice stated that the claimant's roommate did not possess the appropriate professional qualifications and credentials. In addition, the claimant's mother, although trained as a certified PSW, had not been employed in that capacity immediately prior and at the time of the accident. As a result, the attendant care benefits were not payable. With respect to the claimant's mother Justice Garson stated:

"Applying a broad interpretation to the legislative provisions in question and accepting that the goal of the legislation is to reduce hardship on accident victims, I am still unable to conclude that [the claimant's mother] provided her services "in the course of the employment, occupation or profession she would ordinarily have been engaged in, but for the accident"...

Prior to the accident, she was not employed for remuneration as a PSW or health care aide. There is no evidence she was actively seeking such employment or likely to receive an offer for such employment...

I am not satisfied that, but for the accident, [the claimant's mother] would ordinarily have been engaged in health care services employment." [Emphasis Added].

In P(M) v Certas, the provider was the claimant's wife who was a Personal Attendant / Health Care Aide (HCA). The applicant argued that she was "professionally qualified to provide attendant care services".¹² Adjudicator Sewrattan rightfully went on to state as follows:¹³

"This is precisely the type of work that the Legislature attempted to disqualify from compensation under s. [3](7)(e)(iii)(A) when it amended the Schedule in 2010. The fact that the applicant's wife is professionally accredited does not change this disqualification." [Emphasis Added].

In YD v Aviva, the attendant care provider was the claimant's husband who was also a licensed physician.¹⁴ Aviva wrote to the claimant indicating that in order for her attendant care expenses to be property "incurred", her husband must have sustained an economic loss. Aviva requested employment information or pay stubs proving economic loss. The claimant did not forward this information. Rather, the claimant's counsel argued that the claimant's husband "is a medical doctor and more than qualified to provide attendant care services to [the claimant]." As such, the claimant's counsel suggested that the attendant care expenses were "incurred" on the basis that they satisfied s. 3(7)(e)(iii)(A).¹⁵ The Executive Chair Lamoureux disagreed with the claimant and held that to allow the claimant's request for attendant care payment would be to:

"... undermine the very purpose underlying s. 3(7)(e), namely to "provide check on payments to family caregivers." The province [of Ontario] implemented that section to target situations like the very one here."¹⁶ [Emphasis Added].

TAKEAWAYS

Please see the chart below for a simplified analysis of the relevant case law, factors considered, and the decision rendered.

Decision/Case	Attendant Care Provider's Designation	Have they worked in that capacity prior to the accident or at the time the services were provided?	If not, were they actively seeking employment at the time of the accident or at the time the services were provided?	Have they worked in that capacity at any point since the accident?	Are the Attendant Care Benefits Payable?
Helmer v Belairdirect	PSW	Yes	N/A	Yes	Yes
AP v Coseco Insurance	PSW	No	Yes	Yes	Yes
Josey v Primmum	FT Caregiver (3 Children)	Yes	N/A	Yes	No
Tarranova v Economical	Child & Youth Care Worker	Yes	N/A	Yes	No
Shawnoo v Certas Direct	PSW	Before - Yes At the time - No	No	No	No
P(M) v Certas	Personal Attendant (Health Care Aide)	Yes	N/A	No	No
YD v Aviva	Physician (OB & Gynecology)	Yes	N/A	Yes	No

This chart evidences that the only instances where attendant care services are payable to family members who claim to qualify under s. 3(7)(e)(iii)(A) are:

• When they have worked in that capacity prior to the accident and/or at the time the attendant care services were provided (as in Helmer); OR
  
  
• If not, when they prove they were actively seeking employment in that capacity at the time of the accident or at the time the attendant care services were provided (as in AP v Coseco).

It is important to note that these types of files are largely decided on a case-by-case basis and that there is no "one-size-fits-all" approach. As such, it is absolutely necessary that the appropriate documentation be provided during the early stages of the file (preferably prior to litigation) and that proper due diligence be conducted throughout the life of the file.

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¹ AP v Coseco, 2017 CarswellOnt 18033, at paras 23 and 28; Helmer v Belairdirect Insurance Co., 2018 ONSC 2888, at paras 11 and 12; Shawnoo v Certas Direct Insurance Co, 2014 ONSC 7014, at para 53; P(M) v Certas Home and Auto Insurance, 2017 CarswellOnt 2793, at paras 7, 9 and 10; YD v Aviva, 2017 CarswellOnt 21381, at paras 5, 7 and 21; Terranova v Economical, 2016 CarswellOnt 5644, at paras 7 and 12.
² Scarlett v Belair Insurance Co, 2013 CarswellOnt 17362, at para 20. 
³ Josey v Primmum Insurance Co, 2014 CarswellOnt 16385, at para 15.
⁴ Ibid at para. 17.
⁵ Henry v Gore Mutual Insurance Co, 2012 ONCA 480, at para 7.
⁶ Amendments to the Statutory Accident Benefits Schedule (Ontario Regulation 34/10).
⁷ AP v Coseco, at paras 20, 21 and 23.
⁸ Ibid, at paras 31 and 32.
⁹ Ibid, at para 28.
¹⁰ Helmer, at paras. 12 and 16.
¹¹ Shawnoo, at para 6.
¹² P(M) v Certas, at para. 7.
¹³ Ibid, at para 20.
¹⁴ YD v Aviva, at para. 5.
¹⁵ Ibid, at paras. 6 and 7.
¹⁶ Ibid, at para. 16.

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