In the recent decision of Helmer v. Belairdirect Insurance Company, the Divisional Court dismissed the appeal a LAT adjudicator’s decision addressing the contentious issue of when professional service providers provide care “but for the accident” in the context of the Statutory Accident Benefits Schedule 2010 (“SABS”).

The issue of “but for the accident” was the central issue in dispute. In the present scenario, the claimant’s care provider was properly qualified as a personal support worker (“PSW”) prior to the accident. It was unclear whether she had been working in the capacity of a PSW until she began providing care for the claimant after the accident. At first instance, the LAT adjudicators[1] found that the service provider was a professional.

Under the SABS, attendant care benefits provide reimbursement for expenses incurred to provide claimants with attendant care services. Due to legislative amendments in 2014, there are two classes of service providers who qualify for reimbursement. They are professionals (such as a PSW) and non-professionals who have sustained an economic loss by providing care. The SABS requires that for someone to be a “professional” they must be providing care “in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident”.

Macleod J., speaking for the Court, addressed two main issues. First, the Court confirmed that the applicable standard of review for appeals from the LAT to the Divisional Court was reasonableness. Notably, the Court found that even if the standard was one of “correctness” they would have still upheld the decision.

Second, he considered the adjudicator’s analysis of section 3(7)(e)(iii)(A) and its application to professional service provider. In addressing this issue the Court agreed with the adjudicators’ decision. It was their conclusion that section 3(7)(e)(iii) (A) required that the service provider was working or was looking for work at the time s/he performed the attendant care services, not at the time of the accident. The phrase “but for the accident” did not have a temporal requirement. The Court noted the intention of the section was to prohibit injured parties from capitalizing on their injuries by inventing jobs for friends and family members who were not legitimate providers of care. As long as the care provider would have been providing such services whether or not the applicant had been injured, then the claimant could be reimbursed for payments made.

On a positive note, this decision suggests that the LAT and the Courts are aware of the concerns regarding improper classification of “professional” service providers. Insurers should feel comfortable asking for additional information from claimants to establish whether service providers are appropriately classified as “professionals”. Secondly, this decision suggests that the characterization of a professional requires something more than simply having the qualifications to provide care. A provider must be actively working or looking for work. Accordingly, situations where an individual is qualified but otherwise engaged in another occupation at the time a claimant needs care may not meet the “but for the accident” requirement.

The decision can be found here

 

[1] Adjudicator Treksler and Adjudicator Hines authored the initial decision.

Devan Marr

As the progeny of Canadian diplomats, Devan grew up in five different countries before returning to Canada. It was somewhere between Frankfurt and Vienna where Devan first learned to ride a bicycle. He is now a cycling fanatic: Devan is also the firm’s resident employment law fanatic. Got an employment practices liability policy question? Devan has your answers.

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