The Canadian Bar Insurance Association

Insurance coverage provisions need to remain broad

The Ontario Court of Appeal decision to deny an insurer’s attempt to tie attendant-care benefits to the lost wages of family members acting as caregivers is an appropriate response to provisions that should be viewed broadly, Toronto personal injury lawyer Michael Smitiuch says in Law Times.

In Henry v. Gore Mutual Insurance Co., Tyrone Henry’s mother took an unpaid leave of absence from her $2,100-per-month job in order to look after her son, who became paraplegic following a vehicle accident in September 2010, the article says.

“Although it doesn’t specifically address the issue of economic loss, I believe Henry v. Gore supports the proposition that any time missed from work will constitute an economic loss. That would be consistent with previous case law which says insurance coverage provisions are to be interpreted broadly, not restrictively,” says Smitiuch, founding partner of Smitiuch Injury Law PC , in the article.

The article says insurers have now pinned their hopes on a Financial Services Commission of Ontario arbitration case involving Kevin Simser and Aviva Canada Inc. that’s currently going through its appeal system.

According to the article, arbitrator Edward Lee rejected an expert opinion introduced by Simser’s counsel earlier this year that would have broadened the concept of economic loss beyond monetary loss to include opportunity costs as well as loss of time devoted to labour or leisure.

If the Simser matter or some other case ever does reach the appeal court, Smitiuch says any definition of economic loss would keep the threshold low to include people who give up part-time jobs or some of their work hours to provide necessary care for family members.

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