Attendant care is one of the most consequential, and most contested, components of serious personal injury claims in Ontario. Whether addressed through statutory accident benefits or pursued as part of a tort action, attendant care sits at the intersection of medicine, caregiving, insurance regulation, and civil justice. It raises fundamental questions about dignity, independence, and the real cost of living with permanent impairment. As both the healthcare and legal landscapes evolve, attendant care claims have become more complex, more evidence-driven, and increasingly central to the mediations we conduct.

At its core, attendant care refers to the personal assistance required by an injured person to manage daily life following an accident. This can include help with mobility, hygiene, supervision, medication management, and safety, as well as more intensive support in cases involving catastrophic injury. The scope and duration of attendant care often expand over time, particularly where injuries are permanent, progressive, or cognitively impairing. As a result, attendant care is frequently one of the largest heads of damage we see in serious injury litigation.

The Legislative Framework Governing Attendant Care

Entitlement to attendant care benefits in Ontario is grounded in a tightly structured legislative scheme that flows from the Insurance Act^[1] and is operationalized through the Statutory Accident Benefits Schedule (“SABS”). Section 268 of the Insurance Act establishes the statutory accident benefits regime as a compulsory, no-fault system, while the SABS, enacted as a regulation under the Act, defines the scope, conditions, and limits of those benefits. Within that framework, attendant care is treated as a distinct category of “health care benefits,” reflecting the legislature’s recognition that personal care and supervision are essential components of post-accident recovery and long-term support.

The substantive entitlement to attendant care benefits is set out in section 19 of the SABS, which provides that an insurer shall pay for reasonable and necessary attendant care expenses incurred as a result of an accident, subject to applicable monetary limits and classifications. Section 3(7)(e) of the SABS further defines when an attendant care expense is considered “incurred,” requiring that the service be provided, that the insured has paid or promised to pay for it, and that the provider either be engaged in attendant care as part of their employment or business or have sustained an economic loss as a result of providing the care. This statutory definition has proven to be one of the most litigated aspects of attendant care, particularly in cases involving family-provided care.

The assessment and quantification of attendant care needs is formalized through the Assessment of Attendant Care Needs (Form 1)^[2]a>, which operates as the statutory gateway document for entitlement. While the Form 1 does not itself create entitlement, it is the primary evidentiary instrument through which attendant care needs are measured and translated into a compensable benefit under the SABS. Read together, sections 19 and 3 of the SABS establish a deliberate legislative balance. Entitlement is need-driven, but payment is conditioned on defined proof requirements intended to distinguish compensable care from informal assistance.

This statutory architecture also informs how attendant care benefits interact with tort claims. Section 267.8 of the Insurance Act requires that statutory accident benefits paid or payable in respect of health care, including attendant care, be deducted from tort awards under a categorical approach. The result is a coordinated system in which attendant care is first addressed through the no-fault regime, with residual and future needs potentially addressed in tort, but without permitting double recovery. Understanding this legislative design is essential to properly pleading, proving, and resolving attendant care claims across both regimes. Read my recent blog, “Collateral Benefits Deductibility: The Hidden Math of Compensation”.^[3]
Despite its apparent simplicity, attendant care under the SABS has generated persistent litigation. Central to that litigation is the statutory requirement that attendant care expenses be “incurred.” The SABS requires not only that the care be provided, but that the provider either be engaged in providing attendant care services in the course of their employment or business, or that they sustain an economic loss as a result of providing the care. This requirement has been the subject of repeated judicial scrutiny, particularly where family members provide care.

The leading authority remains Henry v. Gore Mutual Insurance Company, 2013 ONCA 480^[4], a catastrophic injury case in which the plaintiff’s mother left paid employment to provide extensive attendant care following a serious motor vehicle accident. The Ontario Court of Appeal clarified that economic loss operates as a threshold requirement only for attendant care entitlement. Once a caregiver demonstrates that they have sustained economic loss as a result of providing attendant care, the insurer is required to pay attendant care benefits in accordance with the assessed needs set out in the Form 1, subject to statutory limits. The quantum payable is not restricted to the caregiver’s actual wage loss. This decision confirmed that the focus of attendant care benefits is the injured person’s needs, not a narrow accounting exercise tied to caregiver earnings.

In practical terms, Henry remains critical in disputes involving family-provided care. It reinforces that once entitlement is triggered, the statutory scheme prioritizes adequacy of care over cost minimization. At the same time, the decision underscores the importance of clear evidence establishing economic loss.

Those same principles now play out routinely before the Licence Appeal Tribunal (LAT)^[5], where attendant care disputes are often less about abstract entitlement and more about proof. LAT decisions demonstrate how the statutory definition of “incurred expense,” the quality of functional evidence, and the credibility of care arrangements can determine outcomes even where the need for care is not seriously disputed. In that forum, Henry provides the legal anchor, but the result frequently turns on how rigorously the evidence aligns with the SABS requirements.

Attendant Care at the LAT

For example, in the LAT decision J.W. v. Security National Insurance Company, 2020 CanLII 30385 (ON LAT)^[6], the applicant suffered a traumatic brain injury and multiple fractures in a motor vehicle accident and was deemed catastrophically impaired. The insurer argued that he no longer required attendant care and refused ongoing attendant care benefits, but the Tribunal found that the occupational therapy evidence supported ongoing needs such as evening meal preparation, cues, and reminders due to fatigue and cognitive challenges, even though the applicant had returned to work as a litigation lawyer. The Adjudicator concluded that the applicant was entitled to attendant care benefits at a rate of $803.99 per month, highlighting how the Tribunal will award ongoing benefits where the medical and functional evidence justify care needs, but also noted that the applicant could not recover past expenses because they did not meet the statutory definition of “incurred expense.”

In another case, M.P. v. Certas Home and Auto Insurance Company, 2017 CanLII 9810 (ON LAT), the Tribunal addressed attendant care where the claimant’s wife, a certified personal support worker, provided care. Although the provider had relevant professional credentials, the Adjudicator held that her care was not provided in the course of her ordinary employment and that she had not sustained an economic loss as a result of providing the services. Accordingly, the attendant care expenses were not “incurred” within the meaning of the SABS and the attendant care benefit was denied. This decision illustrates how the Tribunal applies the statutory definition of “incurred expense” in cases involving family-provided care and underscores the evidentiary challenges litigants face when care arrangements straddle personal and professional roles.

Healthcare Realities and the Limits of the Statutory Model

The statutory accident benefits system does not operate in a vacuum. Attendant care is delivered within a healthcare environment facing chronic labour shortages, rising costs, and increasing reliance on informal caregivers. Market rates for personal support workers and professional attendants have risen steadily, while statutory payment structures have not always kept pace^[7]. This disconnect has practical consequences. Claimants may struggle to secure qualified care at regulated rates, while insurers increasingly scrutinize the reasonableness of care plans that reflect real-world pricing rather than guideline assumptions.

These pressures have contributed to a growing gap between what the SABS technically provides and what injured persons actually require to live offering some measure of independence and safety. That gap is one reason why attendant care frequently becomes a focal point in tort claims we mediate.

Attendant Care as a Head of Damage in Tort Claims

In tort actions, attendant care is addressed as part of the broader claim for past and future care costs. The governing principle is compensatory. The injured person is entitled to recover the reasonable cost of care required as a result of the defendant’s negligence. Unlike statutory benefits, tort damages are not subject to pre-set caps and may reflect lifetime needs.

Canadian courts have long recognized that the value of attendant care does not disappear simply because it is provided by family members. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229^[8], the Supreme Court of Canada emphasized that gratuitous care provided by family should not reduce a plaintiff’s entitlement to damages. The proper focus is on the cost of replacing that care, not on whether the caregiver was motivated by love, obligation, or necessity. To do otherwise would undervalue the plaintiff’s loss and improperly shift the burden of care onto families.

Modern tort claims build on this foundation through detailed expert evidence addressing functional limitations, care requirements, and future cost projections. Attendant care assessments in the tort context often mirror, but are not constrained by, Form 1 methodologies. Courts assess the reasonableness of future care costs by considering medical evidence, life expectancy, anticipated changes in condition, and realistic assumptions about care delivery.

The Interaction Between Accident Benefits and Tort Recovery

Attendant care claims frequently involve both statutory benefits and tort damages, making the interaction between the two regimes critically important. Section 267.8 of the Insurance Act requires that certain statutory accident benefits be deducted from tort awards to prevent double recovery. The courts have adopted a categorical or “silo” approach to these deductions.

The Supreme Court of Canada’s decision in Cadieux v. Cloutier, 2018 ONCA 903, aff’d 2019 SCC 9, confirmed that accident benefits are to be deducted from tort awards by category, rather than on a dollar-for-dollar basis tied to identical expenses. Health care benefits, including attendant care, form one such category. This approach avoids unfair over-deduction while ensuring that plaintiffs do not recover twice for the same type of loss. See my blog, “SABs, Silos, and the End of “Apples to Apples”: Lessons from Cadieux”^[9].

From a practical standpoint, this framework means that both plaintiffs and defendants must pay close attention to how attendant care is pleaded, quantified, and categorized. Poor alignment between accident benefit evidence and tort claims can distort settlement discussions and complicate trial outcomes.

Attendant Care in Mediation: A Practical Perspective

From my mediator’s chair, attendant care disputes often reveal the gap between legal abstraction and lived reality. Insurers tend to approach attendant care through the lens of entitlement tests, guideline rates, and statutory limits. Injured persons and their families, by contrast, experience attendant care as a daily, often exhausting reality that shapes every aspect of life.

Effective mediation requires bridging that gap. Attendant care disputes rarely turn on a single legal issue. More often, they reflect competing narratives about need, credibility, sustainability of care arrangements, and the future. Mediators must understand the legal framework well enough to reality-test positions, while also ensuring that the human dimensions of care are not reduced to spreadsheets.

In my experience, progress is most often made when parties move away from rigid positional arguments about hours and rates and toward a shared assessment of risk. That includes litigation risk, evidentiary risk, and the practical risk that statutory or informal care arrangements will not meet long-term needs. Mediation provides a forum in which creative, forward-looking solutions, including structured settlements and blended care models, can be explored in ways that courts and tribunals are often ill-equipped to accommodate.

Looking Ahead: Trends and Ongoing Challenges

Attendant care litigation in Ontario continues to evolve. Tribunals and courts are refining the application of entitlement thresholds, while healthcare system pressures are forcing all participants to confront the limits of existing models. At the same time, the growing sophistication of expert evidence has raised the bar for both claimants and insurers.

What has not changed is the central importance of attendant care to the dignity and security of seriously injured people. Whether addressed through statutory benefits, tort damages, or negotiated resolution, attendant care remains a defining issue in serious injury litigation. Its proper assessment requires not only legal precision, but an appreciation of the human cost of inadequate care and the long-term consequences of getting it wrong.