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February 2015

Case Study on Electronic Custodial Care

Shawnoo v. Certas Direct Insurance Co

In Shawnoo v. Certas Direct Insurance Co.,1 Justice Garston of the Ontario Superior Court of Justice clarified the meaning of "incurred expenses" for attendant care services within the meaning of s.3(7)(e) of the Statutory Accident Benefits Schedule - 2010. Additionally, he clarified that attendant care services could be provided indirectly by electronic means within the meaning of sections 19(1), 19(2), 42(1) and 42(2) of the SABS-2010.

The plaintiff in this case had suffered a catastrophic brain injury as a result of a motor vehicle accident in December of 2010. As a result, she exhibited erratic behaviour and required constant supervision. She received assistance in person and by text messages, skype and other electronic means from two people: her mother and her roommate.

The parties disputed whether she had "incurred" expenses for attendant care services within the meaning of s.3(7)(e) and whether attendant care services can be provided indirectly by electronic means. As all parties agreed that neither the mother nor the roommate had suffered an economic loss within the meaning of s.3(7)(e)(iii)(B) of the S.A.B.S - 2010, the only way for the plaintiff to be entitled to attendant care was for either the mother or the roommate (or both of them) to have provided attendant care services "in the course of the employment, occupation or profession, in which [they] would ordinarily have been engaged, but for the accident."

(The Plaintiff) received assistance in person and by text messages, skype and other electronic means...

Relevant to the decision of the Court was that the plaintiff's mother was certified as a Personal Support Worker but had not been working as one for the two years prior to the accident while the roommate was a certified child and youth worker who provided attendant care services to the plaintiff in the evenings.

Justice Garston found that the roommate was "neither trained in the field of healthcare nor has any prior work experience in the field" and that, while her work supporting the plaintiff was admirable, the legislation did not allow for her to be paid for the attendant care services that she provided.

With respect to the mother, Justice Garston found that she was not "employed for remuneration as a PSW or healthcare aide" or "actively seeking such employment or likely to receive an offer for such employment" at the time of the accident and, therefore, was deemed not to have provided services in the manner envisioned by s.3(7)(e)(iii)(A) of the S.A.B.S - 2010. The decision confirmed that clear intention of the legislation is that the person providing care must demonstrate either economic loss or ordinary engagement in healthcare services employment prior to the accident.

Finally, while neither the mother nor the roommate were deemed to be appropriately qualified in order to receive SABS benefits, Justice Garston determined that attendant care services could be provided indirectly in the form of telephone calls, emails, FaceTime, text messages and other similar electronic means. He stated that the form of attendant care being provided was "custodial care" required due to the plaintiff's erratic behavior and was not convinced "that such care requires the provider to stand over the person or be within their immediate physical presence." Indeed, he found that at this point in time "there is an abundance of legal and medical services appropriately proffered and received by electronic means."

In Summary

We believe that this decision will assist first party insurers in determining whether Applicants are entitled to attendant care by clarifying the eligibility of the parties providing care and by clarifying the manner in which the services can be provided to be entitled to compensation.

For the full decision see Shawnoo v. Certas Direct Insurance Co. 2014 ONSC 7014.

1 2014 ONSC 7014


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