Court decides on housekeeping costs

It was reported in Canadian Underwriter that auto accident claims for housekeeping and home maintenance expenses in Ontario are not subject to the province's legislative threshold that restricts payments only to those claimants who suffer from "serious and permanent" impairments, the Ontario Superior Court of Justice has ruled in Sabourin v. Dominion of Canada General Insurance.

Although the province's Insurance Act does protect insurers from certain liability in auto accidents (a series of protections commonly known as "the threshold"), the court noted housekeeping and home maintenance "are conspicuously absent from those sections of the Act."

Ontario Superior Court Justice George Valin further observed that had the Ontario government meant to include housekeeping and home maintenance within the scope of the threshold, "it could easily have added those claims to the categories of protected claims when it enacted Bill 198 (which introduced the threshold).

"It is reasonable to infer that, by not having done so, the legislature intended that the exclusion of claims for future loss of housekeeping and home maintenance services in non-catastrophic cases from the categories of protected claims should stand," he wrote.

Valin further observed a difficulty in applying the definition of a "serious" and "permanent" injury, as contained in the act. The act excludes tort claims for damages based on injuries defined to be "serious," "important" and "permanent."

For an injury to be "serious," the act says, it must "substantially interfere with most of the usual activities of daily living, considering the person's age."

But, Justice Valins wrote, "the Act does not define the word 'most.'" Nor does Bill 198 contain a list of activities of daily living.

Nevertheless, the judge found the plaintiff's injuries in Sabourin did not meet the standard of the dictionary definition of "greatest in amount or degree, the majority of, nearly all of," primarily because of the number of inconsistencies in the plaintiff's testimony about the severity of her pain.