A Court decision from 2021 interpreted recent legislation to mean that unless personal support workers (“PSWs”) or other licenced care providers are willing to provide services below minimum wage, injured people will be required to pay the difference, or they will simply not be able to receive care.
What is attendant care support?
If you’ve been injured in a car accident, you are entitled to no-fault benefits through your car insurance policy. One listed benefit is attendant care.
People with serious injuries access attendant care benefits to pay for the services of a professional care provider who assists with:
- preparing and eating food;
- administering medication;
- using the bathroom;
- grooming and bathing; and,
- ensuring safety.
The Court’s decision
In the Ontario Divisional Court decision, Malitskiy v. Unica, the Court found that insurers are only required to pay the hourly rate for attendant care services as outlined in the legislation, which often falls below the Provincial minimum wage.
More specifically, the maximum hourly rate that insurers must pay for care is between $14.00 to $14.90 per hour (except for complex health/care and hygiene functions at a maximum of $21.22 per hour). The minimum wage in Ontario is currently $15.50. The market rate for PSWs in Ontario currently ranges from about $23.00 to $35.00 per hour.
Before the decision in Malitskiy, many insurers covered care costs up to a monthly maximum amount. This made it possible for injured individuals to hire PSWs at their market rates for some of their required care.
Unfortunately, this decision is one of many examples of our government reducing the legislated benefits available to injured people through the car insurance they pay for—to the benefit of the insurance companies.
 Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603