Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014 (CanLII)

Released December 30, 2014 | CanLII

The plaintiff, Misty Shawnoo, suffered a catastrophic brain injury following a motor vehicle collision that occurred on December 12, 2010. As a result of the collision, she suffered from ongoing issues with impulsiveness and risk-taking behavior sufficient to warrant constant monitoring and supervision. Ms. Shawnoo applied for attendant care benefits under the SABS from the defendant, Certas, for care provided by her mother, Cheryl Benn, and her roommate, Chenoa Plain. She brought this motion before Justice Garson under Rule 21 for determination of the following questions of law:

(i) Had she incurred expenses for attendant care services within the meaning of section 3(7)(e) of the SABS?

(ii) Do attendant care services provided indirectly, in the form of telephone calls, emails, FaceTime, text messaging and other similar electronic means, qualify as attendant care services within the meaning of ss. 19(1) and 19(2) and ss. 42(1) and 42(2) of the SABS?

Ms. Benn was a qualified personal support worker, although she had not been employed in this capacity for at least 2 years pre-collision. Since 2009, she had been providing unpaid assistance to a schizophrenic relative. Ms. Plain was a certified child and youth worker who was employed full time in this capacity at all material times. Both had provided attendant care via electronic means and personally for the period in question.

At issue was whether either woman could be characterized as providing attendant care “in the course of employment, occupation or profession in which she ordinarily would have been engaged, but for the accident”, per s. 3(7) of the SABS.

Justice Garson addressed each potential provider separately. He did not accept that Ms. Plain was qualified to provide attendant care to Ms. Shawnoo in the course of her profession because she was trained to provide support for troubled youth. On the other hand, Ms. Benn was qualified to perform the level of care recommended in the Form 1, and had been providing supervisory care, both in person and remotely to her daughter. However, his Honour agreed with Certas, that since Ms. Benn was not employed as a PSW at the time of the collision, and had no immediate prospect of returning to work but for the accident, the care was not provided in the course of her employment, occupation or profession.

Therefore, pursuant to the February 1, 2014 amendment to the SABS, both women were required to demonstrate an economic loss in order to access the benefit. The parties agreed that neither had done so.

Regarding the novel question of whether indirectly provided attendant care services can qualify under the SABS, Justice Garson held that custodial care of the sort required by Ms. Shawnoo could be provided via Skype, Facetime or other media. He observed that she relied heavily on her cell phone, both as a means of staying organized, and as a primary mode of interaction with family and support workers. As well, he noted that Certas had paid one of Ms. Shawnoo’s rehabilitation providers for time spent texting Ms. Shawnoo, and that her physician, Dr, Jeffries had recommended “checking in” via telephone and text as an appropriate form of supervision. On these facts, Justice Garson was willing to acknowledge that Ms. Shawnoo’s attendant care could be provided remotely.

 

Read the full decision on CanLII

Keith Finley
Written by

Keith was raised in Etobicoke, and is excited to return to the GTA in order to practice plaintiff personal injury law. After his call to the Bar in 2009, Keith worked briefly for TD Insurance as in-house legal counsel, prior to moving to London for family reasons. He has spent the last two years working exclusively in plaintiff personal injury and medical malpractice law with a leading firm.

Through his volunteer work, he has written for The Monarch, the Brain Injury Association of London and Region’s quarterly magazine and sat on their Community Outreach committee. He was also a member of the Spinal Cord Injury of Ontario’s Fundraising Committee 2013-2014.

Keith is devoted to his wife and two boys. He loves to cook, and enjoys a good book when he isn’t working.