Recent changes to the SABS mean that family members who leave work to provide attendant care services their injured relatives will in some cases be paid a benefit equal to only a fraction of the minimum wage.
The History of Attendant Care Benefits
Since 1996, the value of attendant care benefits has been measured by a Form 1 (Assessment of Attendant Care Needs). The Form 1 sets out an injured person’s weekly attendant care needs at various levels of care and applies a statutory hourly rate to each level to calculate the total monthly attendant care benefit.
From 1996 to 2010, family members that provided attendant care to injured persons were compensated based on the level of services they provided in accordance with the Form 1, without having to prove a loss of income.
In September 2010, Ontario government amended the SABS so that family members providing attendant care had to prove an economic loss before they could obtain attendant care benefits. In Henry v. Gore Mutual Insurance Company, the Ontario Court of Appeal recognized that proving an economic loss was only a threshold test and not the measure of the benefit. The amount of the attendant benefit was to be calculated at the Form 1 rate, even if the Form 1 amount exceeded the income lost by the family member.
Passage of Regulation Ontario Regulation 347/13
On February 1, 2014 Ontario Regulation 347/13 came into force, reversing Henry v. Gore Mutual, and limiting attendant care benefits for family members who provide attendant care services to the amount of the family member’s actual economic loss. This regulation came into force only a few days after the Ontario government announced an increase to the minimum wage to $11 per hour.
This regulatory limit on attendant care benefits is in direct conflict with the Ontario’s minimum wage laws. Family members who give up their jobs to provide attendant care services will often be required to do so at a rate substantially lower than the statutory minimum wage of $11 per hour.
Consider the example of a mother who was previously working 20 hours a week at $11 per hour (earning $220 per week). Suppose she leaves her employment to provide 12 hours of daily care to her injured child. Under the new system, that mother will receive an attendant care benefit equal to only $2.61 per hour of attendant care service provided ($220 / 12 / 7). This undermines the purpose of the recent change to minimum wage laws, the stated purpose of which is to ensure that all Ontario workers are paid a fair wage.
Encouraging Family Care and Promoting Consumer Choice
The SABS had previously recognized the importance of family members being fairly compensated for providing needed attendant care services. Not surprisingly, injured people generally prefer to receive often intimate care services from family members and this care is often required to be provided at odd hours. In addition, because the statutory hourly rates provided for by the Form 1 are substantially lower than actual market rates for attendant care services, often the only way for an injured person in need of substantial attendant care to receive the care needed is to obtain that care from friends or family members. The current average market rate for attendant care services in Ontario is $23 per hour, while the Form 1 rates are $13.19 per hour (for routine personal care), $10.25 per hour (for basic supervisory functions), and $19.35 per hour (for complex care and hygiene functions).
The provision of attendant care services by family members is, therefore, something that ought to be encouraged and supported. The recent changes limited compensation for family members have the opposite effect.
 2013 ONCA 480