Tierney v. North Waterloo Farmers Mutual, FSCO A15-003293

Applicants successful in demonstrating economic loss for care provider who was a student at the time of the MVA and subsequently had to accept a lower paying position than anticipated due to the requirement for flexible time and proximity to provide AC services.

Heard March 28, 2017 | Full Decision [PDF]

This was a dispute before Arbitrator Robinson of the Financial Services Commission of Ontario. The dispute involved the definition of ‘incurred’ with respect to the attendant care claims. The three applicants are all minor children and their attendant care was provided by their mother Jocelyne. The sole issue before the Arbitrator was whether the applicants could satisfy the onus put upon them to show that their mother, in providing attendant care, had sustained an economic loss.

The three children sustained significant injuries and their care in the immediate post-accident period was demanding. They required around the clock attention, including through the night due to bed-wetting episodes. Invoices for the attendant care provided to the children by their mother were prepared retroactively, using the retrospective Form 1 documents as aides-memoire.

Jocelyne had trained as a PSW but never worked in that field. In the years preceding the accident she worked in a call center but decided to re-train as a medical records administrator in order to increase her earning potential. She commenced a 1 year program in the year prior to the accident. The accident occurred within the final few months of her program. Once she completed her program she could not accept an in-hospital placement and instead had to accept a job with a local medical practitioner so that she could be close to home. She also was allowed flexible hours so that she could take her children to appointments and treatment. The claimant testified that students from her program had high success rates applying to and securing employment within area hospitals. The insurer argued that no labour market surveys were adduced to show the work available for medical records administrators.

Arbitrator Robinson was satisfied that on a balance of probabilities that Jocelyne had suffered an economic loss within the meaning of subsection 3(7)(e)(iii)B of the Statutory Accident Benefits Schedule. He determined that Jocelyne’s losses were not purely a matter of opportunity cost. Jocelyn’s tax returns revealed that when factoring repayment of OSAP she was in a position, which was materially worse than before she commenced her studies, as a direct result of the care she was providing to her children.

Read the full decision [PDF]
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Jan received her Bachelor of Arts (Honors) in Development Studies from Huron University College at the University of Western Ontario in 2005 and her J.D. from Western's Law School in 2009. While attending law school, Jan volunteered with the school's Community Legal Clinic and Pro-Bono Students Canada. She also participated in an international exchange program at ESADE in Barcelona where she studied both International and European Union law.

Before joining Gluckstein Personal Injury Lawyers, Jan completed her articles at a prominent personal injury firm. She was called to the bar in June 2010.

Jan's personal injury practice is dedicated to medical negligence.

When not practicing law, Jan enjoys travelling, playing soccer and volleyball.