Brain Injury Association of Quinte District 2013 Conference
May 15, 2013
The Latest Word on
“INCURRED EXPENSES” for SABS
SIMSER and Aviva Canada Inc. FSCO A11-004610
Presented by:
LEONARD H. KUNKA
416-868-3185
[email protected]
PERSONAL INJURY LAWYERS
• Following his accident on November 10, 2010, the Applicant
received attendant care and housekeeping/home maintenance
services from Julie and Kasey Simser and allegedly a lawn care
company
• Aviva disputed that these services were “incurred expenses”
within the meaning of the SABS
2
• The arbitrator considered the new definition of “incurred expenses”
which requires:
1) The insured person has to have received the services (agreed
by the parties in this case)
2) The insured person has paid for the services or has promised
to pay or is otherwise legally obligated to pay (agreed by the
parties in this case)
3) The person providing the services:
i.
Was engaged in an occupation or business which
normally provides that service
OR
ii. Sustained an “economic loss” as a result of providing the
services to the injured party
3
• The case focused on whether the family member providing the
services had suffered an “economic loss” in order to provide the
services. The arbitrator considered the evidence of an economist
(Professor Jack Carr) who explained how the term “economic loss” is
used in the field of economics
• The applicant argued that an expansive definition should be given to
the term “economic loss” on the theory that if the Legislature
intended only a monetary or financial loss to be covered, they would
have used those specific terms
• The insurer argued that “economic loss” must be given its ordinary,
everyday meaning, which was a monetary loss, such as lost wages or
profits
4
• The arbitrator held that Aviva’s interpretation of “economic loss” is
closer to the ordinary, everyday meaning of those words. Professor
Carr’s definition, on the other hand, is a more specialized definition
from the field of economics, which is outside the ordinary sense or
everyday meaning of those words. The arbitrator also found that there
is nothing in the SABS suggesting that such a specialized meaning
should be incorporated into the definition
• The arbitrator seemed to swayed by Aviva’s argument that whenever
a service is provided, some person will have provided it, and that
person will always expend or lose time in the provision of the service.
As such, some opportunity, chance or time will always be lost. Aviva
argued that if you apply that definition, there will never be a situation
where you cannot demonstrate “economic loss” and therefore the
provision in the SABS which tries to distinguish between
professional and lay service providers becomes meaningless
5
• The arbitrator did hold open the possibility that there may be specific
occasions where a loss of opportunity may equate to an “economic
loss” under the SABS, but tempers that comment by saying that the
loss as applied in the SABS “must relate to some form of financial or
monetary loss”
• According to the Arbitrator, this case was hampered by a lack of solid
evidentiary support for the Applicant’s claims. Despite being
requested by the insurer to provide proof of lost hours at work, or
lost overtime hours, or testimony from the lawn service company, the
applicant failed to provide that proof. The arbitrator’s decision clearly
reflects that he did not find the evidence tendered by the applicant’s
service providers to be credible or convincing. This decision, which
makes claiming for the services provided by family members even
more difficult, resulted in large part, from a failure to provide
sufficient evidence to satisfy the “economic loss” test in the SABS
6
THANK YOU
7