CITATION: Hathaway-Warner v. TD General Insurance Company, 2024 ONSC 2511

DIVISIONAL COURT FILE NO.: 244/23

DATE: 2024-05-06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse, Sheard JJ.

BETWEEN:

VALERIE HATHAWAY-WARNER

Appellant

– and –

TD GENERAL INSURANCE COMPANY

Respondent

– and –

LICENCE APPEAL TRIBUNAL

Respondent

Sherilyn Pickering & Rachel Andrews for the Appellant

Jennifer McGlashan & Glen Bushi, for the Respondent, TD General Insurance Company

Jessse Boyce, for the Respondent, Licence Appeal Tribunal

HEARD at Toronto on April 24, 2024

Backhouse J:

REASONS FOR DECISION

[1] The appellant appeals a Decision of the Licence Appeal Tribunal (“LAT”) dated March 22, 2023 (“the Decision”) in which LAT found that as a result of an accident on July 14, 2010, she was entitled to $3,589.07 per month in attendant care benefits (“ACBs”) under the Statutory Accident Benefits Schedule (“SABS”) rather than the claimed amount of $6,000.00 and that there were no outstanding overdue benefit payments because she had not incurred any ACBs. The appellant also appeals the denial of home modifications or alternative housing benefits.

[2] The appellant argues that the Decision contained several errors of law requiring appellate review. These alleged errors include a failure to determine applicable rates, a failure to provide adequate reasons, an error in the test for supervisory care, as well as other errors amounting to a violation of the appellant’s Charter rights.

[3] The appellant requests that the court set aside the Decision, and find that she is entitled to the quantum of ACBs sought, and entitled to home modifications or alternative housing. In the alternative, the appellant requests that the Court remit the decision to a differently constituted panel of LAT with a direction to decide the matter in a manner that accords with the appellant’s equality rights.

[4] TD General Insurance Company (“TD”) argues that the Decision contained no errors of law, that this appeal is without merit and should be dismissed.

Background

[5] In a decision dated May 16, 2019, and which is not the subject of the current appeal, LAT found that as a result of the accident, the appellant was catastrophically impaired at the “Marked” level of impairment (Class 4) in three of the four domains (activities of daily living; concentration, persistence and pace; and adaptation). A catastrophic determination report completed at the appellant’s request showed that her physical impairment rating was 0% Whole Person Impairment, but that when mental and behavioural impairment ratings were considered, the appellant was at 49% Whole Person Impairment.

[6] Based on this, it was found that the mental/behavioural disorders caused by the accident significantly impacted the appellant’s daily life. She became bedbound, withdrew from her Master’s program and stopped working as a graduate assistant, could not continue to home-school her children, and had a poor/non-existent social life. The adjudicator accepted the appellant’s testimony, as well as that of experts, that this represented a marked departure from her life prior to the accident.

[7] Despite these findings, no benefits were awarded to the appellant at that time because it was found that she did not prove her claim.

Decision of the Licence Appeal Tribunal – March 22, 2023

[8] Subsequent to the May 16, 2019 decision, the appellant sought further benefits from TD: ACBs up to the $6,000.000 monthly maximum based on an assessment and Form 1 completed by an occupational therapist, as well as payments to modify her home (in the amount of $399,763.00), or in the alternative, funding for the purchase of a new home to accommodate her disability (in the amount of $931,000.00).

[9] TD approved an entitlement to ACBs up to $2,652.91 per month, and on January 23, 2020, denied funding for the home modifications and purchase of a new home on the grounds that it was neither reasonable nor necessary.

[10] After hearing both parties’ submissions, LAT found:

a. The parties agree that because the accident occurred on July 14, 2010, just prior to the change to the current SABS, two versions of the Schedule apply to the Appellant’s claim: (1) Accidents on or after November 1, 1996 (O. Reg. 403/96) (“1996 Schedule”); and (2) Schedule Effective September 1, 2010 (O. Reg. 35/10) (“2010 Schedule”).

b. The appellant is entitled to ACBs up to $3,589.07 per month from the period of July 12, 2019, ongoing;

c. The appellant is not entitled to the home modifications claimed;

d. The appellant is not entitled to the alternative housing claimed;

e. The home modifications and home devices assessment is subject to the $2,000.00 funding limit provided by section 25 of the 2010 Schedule;

f. As there is no overdue payment of benefits, no award or interest is payable by TD to the appellant;

g. The appellant is entitled to costs in the amount of $1,000.00.

Attendant Care Benefits

[11] LAT found that the appellant is entitled to incur ACBs up to the maximum amount of $3,589.07 per month for the period from July 12, 2019, to the date of the decision, but that she did not demonstrate she had incurred any ACBs during that period.

[12] The amount of the ACBs is determined in accordance with the Assessment of Attendant Care Needs Form (“Form 1”). The appellant claimed that she required ACBs in excess of $6,000.00, and relied on the Form 1 dated June 13, 2019 completed by Ms. Caskie, an occupational therapist. TD, on the other hand, argued that the appellant’s needs were less than she claimed and is only entitled to ACBs up to $2685.61 per month based on a Form 1 dated September 8, 2019 completed by Mr. Sasani, also an occupational therapist.

[13] For ACBs, Ms. Caskie allocated 4,106.76 minutes per week under the category “ensuring comfort, safety and security in the environment” and the same amount of time for “basic supervisory care”, for a total of 8,213.52 minutes per week. Mr. Sasani assessed a need for 420 minutes for “ensuring comfort, safety and security in the environment” and 2520 minutes for “basic supervisory care” for a total of 2940 minutes per week.

[14] At paragraph 20 of the Decision, LAT held that unless otherwise noted, it preferred the assessment conducted by Ms. Caskie given that she was better informed than Mr. Sasani was regarding the appellant’s living conditions and her evidence was consistent with the other evidence. However, LAT was not persuaded that in addition to other attendant care identified in Ms. Caskie’s assessment (which LAT accepted), that the appellant also needed the high level of supervisory care identified by Ms. Caskie.

Home Modifications and Alternative Housing

[15] LAT found that the appellant had not met the onus to demonstrate that the home modifications or alternate housing were a reasonable and necessary expense to reduce or eliminate the effects of her impairments as a result of the accident. LAT concluded that there was no compelling evidence to suggest that the home modifications/alternative housing was needed. The appellant’s accident-related impairments were predominantly mental and behavioural with a pain disorder/chronic myofascial pain.

[16] LAT found that the overarching concern by the healthcare providers at the hearing was that the appellant’s residence was disorganized and cluttered. LAT found that there was no compelling evidence which suggested that home modifications or alternative housing would provide long-term or lasting relief for the appellant as it pertains to the organization of the living space. Rather, through the testimony of an occupational therapist attending to the appellant, LAT concluded that the appellant would be better served by a cleaner and personal support worker, and noted that TD had provided funding for this type of support.

[17] Further, LAT found that the totality of the evidence suggested that although the appellant alleged that she had balance issues and a limp, the home modifications or alternative housing were not justified. The occupational therapists did not identify any specific instances of slip and falls, there were no significant balance concerns, or an inability to carry items.

Cost of Examination – Alternative Housing Assessment

[18] LAT rejected the appellant’s claim that the alternative housing assessment is not subject to the $2,000.00 funding limit on assessments pursuant to s. 25 of the 2010 Schedule because it constituted a “real estate assessment”. Specifically, LAT found that a real estate assessment is dependant on identifying impairments and determining the best way to eliminate or reduce the burden of those impairments, and the funding limit of $2,000.00 applied.

Reconsideration Decision – May 11, 2023

[19] On May 11, 2023, LAT dismissed the appellant’s request for a reconsideration of their Decision because the request for reconsideration was not filed within the 21-day time limit pursuant to Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire, Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017).

[20] The appellant did not request an extension of time to file her reconsideration request and it was dismissed.

Issues raised on this appeal

1. Did LAT err in determining the rates applicable to Form 1?
2. Did LAT err by failing to provide adequate reasons for why the evidence of Mr. Sasani was preferred on the claim for ACBs?
3. Did LAT err in the test for supervisory care and by failing to appreciate the impact of the appellant’s condition on her need for supervisory care?
4. Did LAT err by failing to fully address the question of the need for home modifications?
5. Did LAT err by distinguishing between mental and behavioural impairments from physical impairments, thus violating binding precedent and the principles of the Canadian Charter of Rights and Freedoms?

Court’s Jurisdiction:

[21] This court has jurisdiction over this appeal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”). Pursuant to s. 11(3) of the LATA, an appeal may be made on a question of law only.

Standard of Review:

[22] This appeal is restricted to questions of law, which are reviewable on a correctness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 36-37.

Analysis

Issue 1 – Did LAT err in determining the rates applicable to Form 1?

[23] The appellant takes the position that LAT erred in determining the rates applicable to its Form 1 calculations. While LAT found that the appellant had not incurred any ACBs and the issue is therefore moot, the rates applied may be relevant to future claims. Accordingly, the issue is considered below.

[24] The appellant submits it was an error in law for LAT to apply the hourly rate based upon the date of loss, being prior to the SABS being changed on September 1, 2010. The appellant submits that the rates that ought to apply are those which were in effect when the Form 1 was submitted, and not the rates that existed at the time the accident occurred. Citing R. v. Dineley, 2012 SCC 58, the appellant argued that vested substantive issues are based upon the legislation on the date of loss, but that procedural rules are not. According to the appellant, quantifying an hourly rate is a procedural issue. Therefore, the claim for attendant care did not vest at the time of the collision, and the quantum was not a vested interest; it is either retrospective or effective immediately. The appellant did not provide any caselaw where the SABS were interpreted in this manner.

[25] The appellant relies on Superintendent’s Guideline No. 01/18 as setting out the applicable rates. It states:

Attendant Care Hourly Rate Guideline Introduction

This Guideline is issued pursuant to s. 268.3 of the Insurance Act and is incorporated by reference in subsection 19 (2) (a) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS).

Purpose

This Guideline establishes the maximum hourly rates used to calculate the maximum monthly attendant care benefit in accordance with subsection 19 (2) (a) of the SABS.

The maximum hourly rates applicable to accidents occurring before April 14, 2018 continue unchanged. For example, the rates applicable to accidents occurring on or after January 1, 2018 and before April 14, 2018 are governed by Superintendent’s Guideline No. 03/17. See the Financial Services Commission of Ontario website for previous Superintendent’s Guidelines.

Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.

[26] The appellant submits that pursuant to Guideline 01/18, the total ACBs payable to the appellant ought to have been $5,187.49.

Relevant Legislation

[27] Since the subject motor vehicle accident occurred in July 2010, pursuant to section 16(4) of the 1996 Schedule, the rate of the quantum of ACBS is in accordance with the Form 1. The text of Form 1 provides that with respect to any accident occurring between March 31, 2008 and August 31, 2010 the following rates pursuant to Ontario Regulation 403/96 (1996 Schedule) applies:

• Level 1: $11.23/hr;

• Level 2: $8.75/hr; and

• Level 3: $17.98/hr.

[28] Those were the same rates that LAT applied in the Decision.

[29] Section 68.1(3) of the SABS, O. Reg. 34/10 states:

For greater certainty, the following rules apply with respect to accidents that occurred before September 1, 2010:

Ontario Regulation 403/96 (Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996), as it read immediately before it was revoked by Ontario Regulation 348/20, continues to apply in respect of accidents occurring on or after November 1, 1996 and before September 1, 2010.

[30] Section 16(4) of the 1996 Schedule states:

(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1.

[31] Section 56 of the Legislation Act, 2006, S.O., 2006 c. 21, Sched. F states that “the repeal, revocation or amendment of an Act or regulation does not imply anything about the previous state of the law or that the Act or regulation was previously in force.”

[32] Section 268.3 of the Insurance Act, R.S.O. 1990, c.I.8 provides:

268.3(1) The Chief Executive Officer may issue guidelines on the interpretation and operation of the Statutory Accident Benefits Schedule or any provision of that Schedule.

(1.1)1. The Chief Executive Officer may issue guidelines setting out the treatment, services, measures or goods applicable in respect of types of impairments for the purposes of payment of a medical or rehabilitation benefit provided under the Statutory Accident Benefits Schedule, and such guidelines may include conditions, restrictions and limits with respect to such treatment, services, measures or goods.

(2) Subject to section 268.2, a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule.

(2.1) Despite subsection (2), a guideline that is incorporated by reference into the Statutory Accident Benefits Schedule is binding.

(3) A guideline takes effect on the day it is published in The Ontario Gazette.

[33] The Form 1 dated June 10, 2014 states that “for accidents occurring between March 31, 2008 and August 31, 2010, the rates that are required to be used for the calculation of the ACBs are as follows: $11.25 for Part 1, $8.75 for Part 2 and $17.98 for Part 3.” These were the Forms 1 submitted by both occupational therapist experts on behalf of the appellant and the TD. Both experts used these rates which were applied by LAT. This is in accordance with Section 16(4) of the 1996 Schedule, Section 68.1(3) of the SABS, O. Reg. 34/10 and Section 56, Schedule F of the Legislation Act, 2006 as set out above.

[34] TD was not able to refer us to an issued Guideline that set out the rates which were applied in this case. Nevertheless, the Forms 1 which were used by both experts and accepted by LAT were incorporated by reference into the SABS pursuant to section 16(4) of the 1996 Schedule. Section 68.1(3) of the SABS, O. Reg. 34/10, erases any uncertainty. This indicates that the applicable rates are pursuant to the 1996 Schedule. It is therefore incorrect for the appellant to rely on more recent guidelines and regulations to determine the ACB amounts payable.

[35] The Decision cites Morrissey v. Wawanesa Insurance Company, 2022 ONSC 4398 (Div. Ct.) as authority for the rates which it applied, which deals with a similar situation where benefits were found to be paid pursuant to the 1996 Schedule. Paragraph 6 of that decision, states:

“Both the 1996 Schedule and 2010 Schedule must be read together for the purpose of adjudicating benefits to be paid after September 1, 2010 in relation to accidents that occurred before that. The two Schedules set out a scheme in which, essentially, benefits are paid according to the procedure set out in the 2010 Schedule in an amount determined by the 1996 Schedule.”

[36] I agree with the conclusion that the amounts to be paid are determined by the 1996 Schedule and find that Guideline 01/18 does not apply to the appellant’s claim for ACBs. Accordingly, there is no error of law and this ground of appeal is dismissed.

Issue 2 – Did LAT err by failing to provide adequate reasons for why the evidence of Mr. Sasani was preferred on the claim for attendant care benefits?

[37] Ms. Caskie, an occupational therapist who completed an attendant needs assessment for the appellant, assessed the appellant’s Level 2 care needs with regard to “ensuring comfort, safety and security in the environment” at 4,106.76 minutes per week and the same amount of time for “basic supervisory care” for a total of 8,213.52 minutes per week. Mr. Sasani who completed an attendant needs assessment on the appellant for TD assessed the appellant’s Level 2 care needs at 420 minutes and 2,520 minutes respectively.

[38] In the Decision, LAT found that unless otherwise noted, it preferred the Caskie assessment of the appellant’s attendant care needs over that of the Sasani assessment, that Ms. Caskie’s assessment was consistent with the other evidence and that Mr. Sasani made some assumptions which were inconsistent with the appellant’s condition. Notwithstanding this, LAT adopted Mr. Sasani’s allocation for ACBs of 420 minutes for comfort, safety and security (vs. Ms. Caskie’s allocation of 4106.76 minutes) and Mr. Sasani’s allocation of 2520 minutes for supervisory care (vs. Ms. Caskie’s allocation of 4,106.76 minutes).

[39] The appellant argues that LAT erred in law by accepting Mr. Sasani’s evidence with respect to his assessment of time allocated for Level 2 attendant care without providing reasons or an explanation as to why.

[40] The appellant submits that:

(a) LAT conflated the care provided to ensure comfort, safety, and security and supervisory care. The two are not the same. Ensuring comfort, safety, and security is to provide motivational and emotional support that is reasonable and necessary as a result of the mental health impairments arising from the collision, whereas supervisory care is to ensure safety.

(b) In this case, the appellant’s limp and dizziness would prevent her from being independent in an emergency, and when she is at her worst level of functioning, she cannot independently complete simple tasks such as walking up/down stairs. It is the appellant’s assertion that LAT made conclusions based exclusively on the applicant’s “good days” and thus disregarded relevant evidence of how her impairments affect her on “bad days.”

[41] Ms. Caskie’s allocation would have resulted in attendant care for 19.55 hours per day. LAT explained its preference for Mr. Sasani’s allocation for ensuring comfort, safety, and security in the environment in paragraph 37 of the Decision:

The Panel is not persuaded that in addition to other attendant care identified in her assessment, the Applicant requires supervisory care at the level identified by Ms. Caskie. For example, while the evidence showed that the Applicant spent substantial time at the OMCI [a community complex] there was no suggestion that other people were expected to be at her side during the times the Applicant was there. The preponderance of evidence does not demonstrate that the Applicant requires near constant supervision. While Ms. Caskie’s report identifies concerns of the Applicant being alone and experiencing a fall she has also identified alternatives—such as medical alert systems. The testimonial and documentary evidence does not show that the Applicant’s impairment is at a level where she would allow herself to be imperiled in an emergency.

[42] TD also cites the appellant’s daughter’s testimony which indicated that the appellant could drive independently for at least two and a half hours.

[43] When the Decision is read as a whole, it is clear that LAT considered the totality of the evidence, including the appellant’s dizziness and pre-existing limp. There is no basis for finding that LAT erred by failing to provide adequate reasons for why the expert evidence of Mr. Sasani was preferred on the claim for ACBs. LAT’s conclusion is amply supported in the Decision. There is no merit to this ground of appeal

Issue 3 - Did LAT err in the test for supervisory care and by failing to appreciate the impact of the appellant’s condition on her need for supervisory care?

[44] The appellant submitted that LAT erred in finding that she was not entitled to supervisory care, because her impairments were not at a level where she would allow herself to be imperiled in an emergency. The appellant argues that this mis-states the test for supervisory care and fails to appreciate the fact that the dizziness and limp which LAT found she suffered from would imperil her in an emergency. Moreover, supervisory care is not limited to situations where the person would allow herself to be imperiled in an emergency. It is about whether the appellant cannot be self-sufficient in an emergency. Ms. Caskie focused on the fact that the appellant is a fall risk that would make her unable to be self-sufficient in an emergency.

[45] LAT did not err in the test it applied for supervisory care. Finding that the evidence did not show that the appellant would allow herself to be imperiled in an emergency is another way of saying that she does not lack the ability to be self-sufficient in an emergency. This is a finding of fact that involved a weighing of the evidence. There is no error of law.

Issue 4 – Did the LAT err by failing to fully address the question of the need for home modifications?

[46] The appellant submits that LAT made “numerous errors in law” when denying the home modifications and alternative housing. More specifically that LAT failed to provide an adequate reason as to why they were not persuaded that she required sound attenuation, and that she is unable to carry items or requires assistance in carrying items.

[47] The appellant submits that LAT only applied the reasonable and necessary test in a way that takes into account the appellant’s few “good days”, rather than her frequent “bad days”. To understand the impairments and apply the test correctly, the appellant submits that LAT needs to look at how the appellant functions on her “bad days” too.

[48] Once again the appellant is asking this court to reweigh the evidence LAT had before it and come to a different conclusion. This is not our function. The test is whether the claim is reasonable and necessary considering the totality of evidence. LAT applied this test. LAT concluded that “the preponderance of evidence shows that she [the appellant] remains independent with her mobility”.

[49] LAT gave fulsome reasons in paragraphs 49 to 63 of the Decision for denying the home modification and alternative housing claims. It did not ignore relevant evidence. It highlighted the evidence it found significant. It is not necessary to mention every piece of evidence. LAT found that the appellant failed to meet the onus of establishing that the home modification was reasonable and necessary including that it would reduce the effects of her impairments. This is a finding of fact from which there is no appeal.

Issue 5 – Did LAT err by distinguishing between mental and behavioural impairments from physical impairments, thus violating binding precedent and the principles of the Canadian Charter of Rights and Freedoms?

[50] The appellant argues that LAT erred in distinguishing between the appellant’s mental and behavioural impairments and her physical impairments. In doing so, LAT disregarded the applicable ways in which the appellant’s mental and behavioural impairments directly impact her ability to physically function. This, according to the appellant, interfered with her s. 15 equality rights, by drawing a discriminatory distinction between physical injuries and mental injuries Making such a distinction “perpetuates arbitrariness, stereotyping, and prejudice against a historically disadvantaged group.”

[51] In considering the two-part test to determine whether a breach of equality rights occurred, the appellant submits that first, by focusing on the physical impairments only, the Decision created a distinction based on enumerated grounds, namely “the nature of the injuries”. Second, the appellant cites Saadati v. Moorhead, 2017, SCC 28 for the proposition that those who suffer from mental injury have faced historical and systemic prejudice, and correcting such harms requires that mental and physical injuries be considered independently compensable harms. Based on this, the appellant argues that by conflating the appellant’s mental and physical impairments, LAT “perpetuat[ed] precisely the kind of unequal protection that concerned the Supreme Court in Saadati.”

[52] Further, the appellant argues that LAT did not consider her Charter rights at all in their decision. LAT ought to have applied the Doré/Loyla framework and balanced the appellant’s s. 15 rights with the statutory objectives of the SABS. It is submitted that LAT’s failure to do so amounts to an error of law.

[53] I see no merit in the Charter argument. First, the appellant never raised any constitutional issues before LAT during the hearing. Second, LAT did not err in law by distinguishing between the appellant’s mental/behavioural impairments and her physical impairments, such that her Charter rights were breached. Daley v. The Economical Mutual Insurance Company, [2005] O.J. No. 5516 (ON CA), at para. 41 makes it clear that the very nature of the SABS requires that these kind of distinctions must be made when considering the entitlement of people to the no fault benefits provided for in the legislation. LAT did not focus on the physical impairments only or conflate the appellant’s mental and physical impairments nor did it treat the mental and physical impairments differently. LAT considered the totality of the evidence, including the appellant’s dizziness and pre-existing limp and mental/behavioural impairments. This ground of appeal is dismissed.

Conclusion

[54] I understand that the appellant sincerely and strongly disagrees with LAT’s conclusions. However, the Decision is grounded in evidence that was before LAT and there is no legal or procedural error justifying intervention. Therefore, the appeal must be dismissed.

Costs

[55] As the successful party, TD shall be entitled to costs in the agreed upon amount of $5,000. As agreed, no costs shall be paid by or to LAT.

Backhouse J.

I agree _______________________________

Sachs J.

I agree _______________________________

Sheard J.

Released: May 6, 2024

CITATION: Hathaway-Warner v. TD General Insurance Company, 2024 ONSC 2511

DIVISIONAL COURT FILE NO.: 244/23

DATE: 2024-05-06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse, Sheard JJ.

BETWEEN:

VARERIE HATHAWAY-WARNER

– and –

TD GENERAL INSURANCE COMPANY

– and –

LICENCE APPEAL TRIBUNAL

REASONS FOR decision

BACKHOUSE J.

Released: May 6, 2024