Law Times

Law Times • June 11, 2018 Page 11 www.lawtimesnews.com Entitlement to attendant care benefits upheld BY MICHAEL MCKIERNAN For Law Times A Divisional Court de- cision upholding a woman's entitlement to attendant care benefits offers guidance on the Statu- tory Accident Benefits Sched- ule's controversial "incurred ex- pense" provisions, according to the injured plaintiff 's lawyer. The decision in Helmer v. Belairdirect Insurance Com- pany revolved around the May 6, 2016 motor vehicle accident that injured Belinda Helmer, the owner and operator of an assist- ed living residence. "This decision is going to be very useful for anyone attempt- ing to determine what his nec- essary to qualify for attendant care, which is one of the major benefits available to claimants under the SABS," says Toronto lawyer Ernest Toomath, who acted for Helmer. "Some clarification was re- quired in the law, and the Divi- sional Court has provided that with a very well-reasoned deci- sion." Toomath says the dispute has a protracted history and that, while his client was pleased with the Divisional Court ruling, her joy has been tempered by the progress of the case. "My client was successful at the LAT, but she wasn't paid. Now she's been successful at the Divisional Court and she still hasn't been paid. It's been two years, which has been very dif- ficult for her," says Toomath, ex- plaining that he intends to bring a writ of execution against Be- lairdirect in order to enforce the judgment. "It's disappointing because this is a step that should not be necessary, but when you have not seen any money, you are left with little choice," he adds. The lawyers for Belairdirect did not respond to requests for comment. The day after her accident, Helmer hired a woman named Roberta Holmes to work as a personal support worker at her business before retaining her several weeks later to perform at- tendant care services for Helmer personally. But Belairdirect denied Helmer's claim for reimburse- ment under s. 3(7)(e)(iii) of the SABS, which deems expenses not incurred unless the service provider did so "in the course of the employment, occupation or profession in which he or she would ordinarily have been en- gaged, but for the accident" or "sustained an economic loss as a result of providing the goods or services to the insured person." The provisions were added to the law in order to limit the use of benefits to pay caregiving pro- fessionals or to compensate non- professional family and friends of the victim who can show they gave up other opportunities to take on caregiving responsibili- ties following concerns about misuse by injured people invent- ing jobs for friends and family. The insurer in Helmer's case claimed that she was ineligible for reimbursement because Holmes was not working as a PSW on the day of the accident, but a Licence Appeal Tribunal adjudicator hearing the case ruled that a service provider could meet the requirements as long as they were "working or was looking for work at the time" the attendant care services were performed. While both parties focused their arguments at the LAT on proving that Holmes had worked as a PSW before Helmer's acci- dent, the adjudicator concluded that mattered less than whether or not Holmes was legitimately in the business of offering care services. "The key question for the LAT was whether or not the ser- vice provider would be provid- ing services elsewhere but for the accident. In the view of the tri- bunal, the services must be the product of an employment, oc- cupation or profession in which the service provider would have ordinarily been engaged even if the accident had not oc- curred. On the facts of this case, the tribunal concluded that the test was satisfied," reads the May 9 Divisional Court judgment upholding the LAT decision. Writing for the unanimous three-judge panel, Ontario Su- perior Court Justice Calum Mac Leod said the tribunal's rul- ing was a reasonable interpreta- tion of the SABS section at issue. "The Appellant has not been able to direct us to any jurispru- dence conclusively supporting the interpretation that the regu- lation was intended to limit an injured party to hiring a person that was rendering services as a PSW prior to the accident," he wrote. "As explained by the LAT adjudicators, such an interpre- tation would lead to the absurd result that if an injured person did not require attendant care for a year or two post accident, they could not hire a PSW who had become qualified or started a business after the accident." Deanna Gilbert, a partner at Toronto personal injury law boutique Thomson Rogers, says she welcomes the court's en- dorsement of the focus on the legitimacy of the services when determining entitlement to at- tendant care benefits. "The case law has been up and down on the incurred ex- pense definition, but this gives further authority to the emerg- ing trend," she says. "The purpose of this legisla- tion was really to distinguish between folks who are specifi- cally trained and qualified to do a job compared with those who are providing a loving, caring service but without the proper training and experience. And Your injured client needs more than a settlement. Small structures can do big things. STRUCTURE IT EVERY TIME. 1.800.265.8381 | www.mckellar.com Untitled-1 1 2018-06-04 3:39 PM PERSONAL INJURY LAW See Legitimacy, page 13 Deanna Gilbert says she welcomes the Divisional Court's endorsement of the focus on the legitimacy of the services when determining entitlement to attendant care benefits.

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