Ontario’s attendant-care landscape has shown signs of evolution to align with today’s realities, but the system is still far from perfect, says Ottawa personal injury lawyer Najma Rashid.
Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014 (CanLII) dealt with incurred attendant-care expenses sought by a mother providing care to her daughter, who suffers from a catastrophic brain injury from a motor vehicle accident that occurred in December 2010.
The case touched on, among other things, whether care that’s provided digitally — over text message or emails, for example — is considered attendant care.
In its ruling, the court concluded that care provided over tools like Face Time, text messaging and Skype can qualify as attendant-care services under the Statutory Accident Benefits Schedule.
The case confirms that the definition of what constitutes attendant care is not static, says Rashid, a partner with Howard Yegendorf & Associates LLP.
“The decision certainly is in line with the times,” she tells AdvocateDaily.com. “You see with parents, how they want their kids to call them and text them — that’s how they keep an eye on them. It’s a form of supervision.”
While the ruling is positive, the case also highlights certain limitations in the attendant-care benefit regime, adopted in February 2014, which reduced benefit amounts to the actual economic loss of a family member.
There were expectations that families would turn to professional caregivers more often under the new rules, but in general — especially in non-catastrophic cases — families continue to take care of their injured relatives, says Rashid.
“It’s really resulted in hardship to families because attendant care is generally provided by families, so the provision that says the person must have provided attendant care in the course of their employment, occupation or profession, or sustained an economic loss, is unfair to family members who become caretakers,” she says.
“This case says, ‘Yes, we will pay for attendant care if it’s provided in this manner,’ but at the same time it confirms that attendant care will only be paid in very limited circumstances,” says Rashid.
Shawnoo also raises an interesting question related to economic loss, says Rashid.
“Would cellphone charges then be sufficient to constitute an economic loss?” she says. “I think that will become an issue — whether a cellphone bill is enough to trigger the subsection on economic loss.”