Ruling: Attendant Care Benefits And The Economic Loss Provisions

Old and New SABS – When Does Which Apply?

Applicant vs. Echelon (16-003153 v Echelon General Insurance Company, 2018 CanLII 13151 (ON LAT))

The Applicant suffered catastrophic injuries and sought benefits, including attendant care benefits, as a result of a motorcycle accident on March 17, 2010.

The Applicant and Echelon disagreed on which Statutory Accident Benefits Schedule (“SABS”) governs the Applicant's claims for determining entitlement for benefits, being either the ‘Old SABS' (O. Reg. 403/96) or the ‘New SABS' (O. Reg. 34/10).

The Applicant's spouse provided attendant care as a result of the accident. Echelon submitted that the Applicant's attendant care benefits should be paid in accordance with the provisions of the New SABS, such that the Applicant is required to show that her spouse sustained an economic loss and that the attendant care benefits payable are limited to the amount of the economic loss sustained, as required under the New SABS. Echelon relied on FSCO MVAC Fund v. Barnes (FSCO Appeal P16-00087) to support their submission, whereby it was determined that the ongoing entitlement to attendant care benefits for services provided after January 31, 2014 is limited to the economic loss sustained by the attendant care provider in that period.

However, the Applicant submitted that because the accident took place before the New SABS came into force, the determination of entitlement to and the amount payable for attendant care should be made under the provisions of the Old SABS.

The Adjudicator in this case agreed with the Applicant and found that the attendant care benefits are to be determined under the Old SABS. Within the Adjudicator's analysis, she highlighted that MVAC Fund v. Barnes is distinguishable as the accident occurred on January 3, 2012 and that both the Old and New SABS note that entitlement to and the amount of accident benefits payable for accidents that occurred on or after November 1, 1996 and before September 1, 2010 are determined under Old SABS.

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