Neutral Citation: 2010 ONFSCDRS 120

FSCO A10-000470

BETWEEN:

JEFF MACPHERSON (by his father and Guardian, Jim MacPherson) Applicant

and

INTACT INSURANCE COMPANY Insurer

DECISION ON A MOTION

Before: Eban Bayefsky

Heard: By written submissions received on April 15, 2010 and a telephone conference call on May 5, 2010.

Appearances: Judith A. Hull for Mr. MacPherson William G. Woodward for Intact Insurance Company

Issues:

The Applicant, Jeff MacPherson, was catastrophically injured in a motor vehicle accident on December 20, 2007. He applied for and received statutory accident benefits from Intact Insurance Company (“Intact”, which was originally ING Insurance Company of Canada, but which became Intact Insurance Company in 2009; for the sake of simplicity, the Insurer will be referred to as Intact throughout), payable under the Schedule.¹ Mr. MacPherson maintains, however, that Intact approved, but then failed to pay, the sum of $252,000 towards the modification of his home. The sum of $252,000 would have been partial payment of $388,800 sought by Mr. MacPherson, pursuant to a Treatment Plan dated March 11, 2009 for the modification of his home. The parties were unable to resolve this dispute through mediation, and Mr. MacPherson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In his Application for Arbitration, Mr. MacPherson sought the full sum of $388,800, pursuant to the March 11, 2009 home modification treatment plan. He also sought interest on the $388,800 and a special award. Prior to the pre-hearing conference, Mr. MacPherson brought this motion “to compel the insurer to pay the sum of $252,000.00, which sum was approved by way of OCF-9 dated May 19, 2009 in response to a treatment plan submitted on March 11, 2009 for housing, pursuant to s. 15 of the Schedule.” Mr. MacPherson stated that he sought “to compel payment of the approved amount per s. 38 of the Schedule.” He again sought interest and a special award.

I heard the motion on May 5, 2010, just prior to the pre-hearing conference, which was held on May 17, 2010. At the pre-hearing conference, the substantive issue in the arbitration was identified as whether Mr. MacPherson is entitled to a rehabilitation benefit of $388,800 for the cost of home modifications, as set out in the March 11, 2009 treatment plan.

The issues in this motion are:

Is Intact required to pay Mr. MacPherson $252,000 for home modifications or the purchase of a new home, pursuant to sections 15 and 38 of the Schedule?
Is Mr. MacPherson entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is Intact liable to pay Mr. MacPherson a special award, on the basis that it unreasonably withheld or delayed the payment of benefits, pursuant to section 282(10) of the Insurance Act?
Is either party entitled to its expenses of the motion, pursuant to section 282(11) of the Insurance Act?

Result:

Intact is not, at this time, required to pay Mr. MacPherson $252,000 for home modifications or the purchase of a new home.
Mr. MacPherson is not entitled to interest.
Intact is not liable to pay Mr. MacPherson a special award.
If required, the parties may make submissions on the issue of expenses in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

(i) Facts

Mr. MacPherson was catastrophically injured in a motor vehicle accident on December 20, 2007. He was 44 years old at the time and residing on his own in a detached bungalow in St. Mary’s, Ontario. Mr. MacPherson suffered serious injuries in the accident, including numerous fractures and a closed head injury.

Immediately following the accident, Mr. MacPherson was an inpatient at London Health Sciences Centre and was then transferred in early February 2008 to the Acquired Brain Injury floor at Parkwood Hospital (“Parkwood”). In late May 2008, he was placed in the Neurobehavioural Rehabilitation Unit at Parkwood, and on March 16, 2009, was discharged to Cedarcroft Retirement Residence, where he currently resides. He uses a wheelchair for mobility and remains dependent on 24-hour nursing care for all of his activities of daily living. As a result of the accident, and by virtue of an Order dated March 4, 2008 by Madam Justice Leitch of the Superior Court of Justice, Mr. MacPherson was declared to be a person “incapable of managing property” and his father, Jim MacPherson, was appointed guardian of his property.

In preparation for his discharge from Parkwood, which was originally considered possible in January 2009, and at the request of his counsel, Ms. Hull, Mr. MacPherson’s home was assessed by Adapt-Able Design Group to determine the modifications needed to ensure his safety and accessibility. In a report dated October 27, 2008 (a “home accessibility report”), Adapt-Able stated that, as a result of the accident, Mr. MacPherson had extraordinary housing requirements and that his pre-accident residence would need extensive modifications, costing approximately $388,800. Adapt-Able also noted Mr. MacPherson’s apparent desire to move to Stratford to be closer to his family upon his discharge from Parkwood and that, given this, and the extensive changes required to his existing home, alternative housing should be investigated as a means of fully addressing his accident-related housing needs.

Adapt-Able prepared a secondary report (an “alternative housing report”) on October 31, 2008 outlining the costs associated with the purchase and modification of a new home for Mr. MacPherson. Adapt-Able reported that this would cost approximately $478,600 to $576,300, less expected proceeds of the sale of Mr. MacPherson’s existing home of $142,800, for a total estimated cost of between $335,800 and $433,500. Both of these reports were submitted to Intact.

In response to the reports, Intact had Accessible Solutions Inc. conduct an assessment of the costs of renovating Mr. MacPherson’s existing home. On January 20, 2009, Accessible Solutions reported that the estimated cost of modifying Mr. MacPherson’s pre-accident residence to be $251,940. In an accompanying “Alternative Housing Report”, Accessible Solutions reported that the cost of purchasing and modifying, or building, a new home, would be in the range of $387,900 to $589,900.

On March 11, 2009, Mr. MacPherson submitted a Treatment Plan to Intact for the cost of modifying his existing home, as outlined by Adapt-Able in its October 27, 2008 report, in the amount of $388,800. On April 3, 2009, a paralegal from the office of Mr. MacPherson’s counsel, Misty Lucas, wrote to Intact to “confirm the treatment plan for the cost of Home Modifications dated March 11, 2009...is hereby approved as your time to respond has expired.”

On April 21, 2009, Ms. Hull wrote Intact confirming a telephone conversation between Ms. Lucas and Intact’s adjuster, Sonia Gucciardi, in which Ms. Gucciardi advised that it was unreasonable to expect a response to the treatment plan within ten days given the “several steps that are involved prior to responding.” Ms. Hull indicated in her letter that Mr. MacPherson’s current living arrangements “are only temporary” and that it was “going to take time to secure permanent housing for him and Ms. Gucciardi’s lack of response only delays the process.”

On May 19, 2009, Ms. Gucciardi sent Ms. Hull an Explanation of Benefits form indicating the “Amount Claimed” as $388,800 and the “Amount Payable” as $252,000. The checkbox, “Item Not Payable”, and the section, “Reasons why expenses are not payable or being stopped”, were left blank. The box, “additional sheets attached”, was checked off. The form was sent with a covering letter in which Ms. Gucciardi noted section 15(8) of the Schedule, to the effect that the “amount of the rehabilitation benefit for the purchase of a new home shall not exceed the value of the renovations to the insured person’s existing home that would have been required to accommodate the needs of the insured person.” Ms. Gucciardi stated that she understood that Mr. MacPherson’s family did “not wish to complete the renovations to the home in St. Mary’s and wish to have Mr. MacPherson purchase a residence closer to his mother [and] father in Stratford.” Ms. Gucciardi then stated that Intact “will consider the sum of $252,000 towards renovations of the existing home or the purchase of a new home.”

On June 8, 2009, Ms. Hull wrote to Ms. Gucciardi indicating that, according to the occupational therapist from Adapt-Able who prepared the housing reports, since “lots and homes cost significantly higher in Stratford than in London”, she did “not think that a suitable home [could] be either built or modified for under $400,000.” Ms. Hull stated that it was in Mr. MacPherson’s “best interests to purchase a new home” and that Accessible Solutions should contact Adapt-Able to work together to “come to an agreeable solution to the housing issue.” Ms. Hull indicated that Adapt-Able was “willing to review properties and housing markets with [Intact’s] experts in order to find a compromise that is in the best interests of [Mr. MacPherson].”

Mr. MacPherson subsequently applied for mediation on the issue of home modifications, in which he claimed $388,800, less the amount that had been approved by Intact, pursuant to the March 11, 2009 Treatment Plan and the October 27, 2008 Adapt-Able report. On January 21, 2010, the Financial Services Commission issued a Report of Mediator indicating that the matter had been mediated, but not resolved.

On February 5, 2010, Ms. Gucciardi wrote to Ms. Hull indicating that it was her understanding that Mr. MacPherson had not completed the home renovations noted in the Treatment Plan and that his home had been sold. Ms. Gucciardi stated that, “[t]herefore, the treatment plan has not been fulfilled and we are no longer obligated to pay for these renovations.” Ms. Gucciardi then stated as follows:

To date Intact has not received any documentation or verification that a new home has been purchased. Upon receipt of all the proper documentation as well as the information regarding the sale of his existing home, Intact will be in a position to consider and provide the proper funding up to the $252,000. I would like to bring to your attention...the caselaw Wynn v. Belair; Justin Vanden Berg v. MVACF and MacMaster.

Ms. Gucciardi attached a new Explanation of Benefits indicating the “Amount Claimed” as $295,258.16 (which, immediately following the mediation, Ms. Hull had stated was the amount owing including interest) and the “Amount Payable” as $0.00. The checkbox, “Item Not Payable”, was checked off. The section, “Reasons why expenses are not payable or being stopped”, stated “Please refer to our letter dated February 5, 2010.” The checkbox, “additional sheets attached”, was left blank.

On February 19, 2010, Mr. MacPherson filed an Application for Arbitration on the issue of his entitlement to $388,800, pursuant to the March 11, 2009 home modification Treatment Plan, and, as noted, subsequently brought this motion to compel Intact to pay $252,000 of the $388,800.

(ii) Law

Pursuant to sections 15(1) and (2) of the Schedule, an insurer is required to pay an insured person who has sustained an impairment in an accident a rehabilitation benefit for reasonable and necessary measures “undertaken...to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society or the labour market.” Under section 15(5)(i), the rehabilitation benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in section 15(5) for home modifications (to accommodate the needs of the insured person) or for the purchase of a new home (if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the insured person’s existing home). Pursuant to section 15(8), the amount of the rehabilitation benefit for the purchase of a new home cannot exceed the value of the renovations to the insured person’s existing home that would have been required to accommodate the insured person’s needs.

Section 38(1.1) of the Schedule states, in part, that an insurer is not liable to pay a medical or rehabilitation benefit that was incurred before the insured person submits an application for the benefit that satisfies the requirements of section 38(2) (most notably, that the application be signed by the insured person, unless that requirement is waived by the insurer, and that the application be accompanied by a treatment plan, unless the insurer has notified the insured person that it will pay the benefit without the submission of a treatment plan, pursuant to section 38.1).

Pursuant to section 38(7), on receiving an application for a medical or rehabilitation benefit, an insurer is required to promptly determine whether it is required to pay for the goods and services contemplated by the treatment plan. Under section 38(8)1.ii, where an insured person provides a treatment plan for medical or rehabilitation benefits, and the treatment plan does not disclose a conflict of interest, the insurer is required to give the insured person a notice that describes the goods and services “contemplated by the treatment plan that the insurer agrees to pay for.” Section 38(8.1)(a) states that this notice must be given within 10 business days after the insurer receives the treatment plan. Pursuant to section 38(8.2)2, if the insurer fails to give the required notice, the insurer is required to pay for all goods and services “provided under the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives the notice described in paragraph 1 of subsection (8).” Pursuant to section 38(11), if the application for benefits is not withdrawn due to the insurer disclosing a conflict of interest, the insurer is required to pay for the goods and services it “agreed to pay for” in the notice under section 38(8)1 within 30 days after receiving an “invoice” for them. Pursuant to section 38(17.2), an insurer is required to pay a medical or rehabilitation benefit “that it has agreed to pay” or that it is required under section 38 to pay within 30 days after receiving an invoice for the expense.

(iii) Submissions

Ms. Hull submitted that Intact had partially approved the March 11, 2009 Treatment Plan, towards either the renovation of Mr. MacPherson’s existing home or the purchase of a new home. Regarding the need for an invoice under sections 38(11) or 38(17.2) of the Schedule, Ms. Hull maintained that it was not reasonable for an insured to be required to purchase a house first, before the cost of a new home could be claimed. Ms. Hull noted that the money owed by Intact would be paid into trust for use in purchasing a house for Mr. MacPherson, and that, by virtue of the Order appointing him guardian, Mr. MacPherson’s father was accountable for the proper use of any funds acquired by him in this matter. Ms. Hull argued that Intact was liable both to interest on the amount claimed in the Treatment Plan since it had not forwarded the funds upon their becoming due, and to a special award since it unreasonably withheld or delayed payment of the funds it had approved.

Counsel for Intact, Mr. Woodward, argued that Intact had never approved of, or agreed to, the purchase of a new home, since there had never been a Treatment Plan or, at least, a concrete and reasonable proposal, to that end. He noted that Mr. MacPherson had not yet purchased a new home. He stated that, while Intact had not disputed Mr. MacPherson’s entitlement to the cost of renovating his home, it was never the family’s intention to renovate his existing residence, and that this issue was, therefore, moot. Mr. Woodward submitted that section 38 of the Schedule (concerning the payment of medical and rehabilitation benefits) pertained to real expenses that would be incurred by the insured person.

Ms. Hull noted that, based on its May 19, 2009 correspondence, Intact had known that Mr. MacPherson’s family was not interested in renovating the existing residence, and that Intact had not indicated that it required a further treatment plan for the purchase of new home. Ms. Hull maintained that Intact was bound by its approval of the amount of $252,000 towards the purchase of a new home.

(iv) Findings

This is a procedurally challenging case. Mr. MacPherson submitted a duly completed Treatment Plan to Intact for $388,800 for home modifications, in accordance with Adapt-Able’s October 27, 2008 report. However, in the report, Adapt-Able noted Mr. MacPherson’s wish to relocate to Stratford, concluded that “given the overall magnitude and cost of the proposal [to renovate his existing home],...it would be more prudent to investigate alternative housing options for Mr. MacPherson” and noted that a supplemental report on this issue would follow shortly.

Intact did not respond within 10 days of receiving the Treatment Plan, but did eventually issue an Explanation of Benefits in which it stated that $252,000 of the $388,800 was payable. Intact also stated in its covering letter that it would consider $252,000 towards the renovation of Mr. MacPherson’s existing home. Mr. MacPherson appears to have now sold his home and, on February 5, 2010, Intact denied his claim for home renovations on this basis.

Mr. MacPherson did not submit a specific application or treatment plan to Intact in respect of the purchase of a new home. He did submit Adapt-Able’s October 31, 2008 “alternative housing report” to Intact, which contained an estimated total housing cost of $335,800 to $433,500, excluding various taxes and closing costs. Adapt-Able also stated that it could assist in the review of all available active listings, and visit and assess the most suitable homes. Intact conducted its own investigation of the matter, and stated in its May 19, 2009 covering letter that it would consider the sum of $252,000 towards the purchase of a new home. Mr. MacPherson has apparently sold his original home, and has at no point in the process, specifically applied for funds towards the purchase of a new home. At the same time, Intact has never expressly retracted its statement that it would consider the sum of $252,000 towards the purchase of a new home. It has said that it would consider and provide up to $252,000 towards the purchase of a new home, upon receipt of the proper documentation and information.

The question is whether, in these circumstances, and pursuant to the relevant statutory provisions, Intact is required to pay Mr. MacPherson $252,000 towards either the renovation of his existing home or the purchase of a new home. For the following reasons, I find that it is not.

(a) Mr. MacPherson’s Application for Benefits

Mr. MacPherson submitted a treatment plan for home modifications in accordance with section 38(2) of the Schedule. Intact did not dispute that Mr. MacPherson had submitted an “application” within the meaning of section 38(1.1) of the Schedule, and I find that the Treatment Plan together with the accompanying October 27, 2008 Adapt-Able report satisfied this requirement. Mr. MacPherson did not submit a specific application or treatment plan for the purchase of a new home. However, he did submit Adapt-Able’s “alternative housing report” to Intact. In my view, this was more than sufficient information to constitute an “application” for the purchase of a new home, within the meaning of section 38(1) of the Schedule. Further, at no point did Intact object to Mr. MacPherson’s possible entitlement to the cost of the purchase of a new home on the basis that he had not submitted an “application.” Similarly, while Mr. MacPherson had not signed the Adapt-Able report, I find that, by its conduct (namely, that it never objected to entitlement on the basis that Mr. MacPherson had not signed the application), Intact had “waived” this requirement, within the meaning of section 38(2) of the Schedule.

(b) Intact’s Response

Pursuant to section 38(7), Intact was under an obligation to promptly determine whether it was required to pay for the goods and services contemplated by the Treatment Plan. While Intact did not formally respond until May 19, 2009, given the nature of the benefits requested, and Intact’s need to assess the matter, I am not prepared to find that it unduly delayed its determination.

Pursuant to section 38(8)1.ii, Intact was required to give Mr. MacPherson a notice describing the goods and services contemplated by the Treatment Plan it “agreed to pay for.” Mr. MacPherson submitted a duly completed Treatment Plan to Intact for $388,800 for home modifications, in accordance with Adapt-Able’s October 27, 2008 report. Intact formally responded to this Treatment Plan when it issued its letter and Explanation of Benefits of May 19, 2009. I find that, by these documents, Intact agreed to pay Mr. MacPherson $252,000 towards the renovation of his existing home or the purchase of a new home. The Explanation of Benefits clearly indicated the type of benefit sought (namely, home renovations), the amount claimed (namely, $388,800) and the amount payable (namely, $252,000). The form clearly left blank those sections by which Intact might have indicated that the benefits sought were not payable.

The form referred to the attached covering letter, in which the adjuster referred to Adapt-Able’s October 27, 2008 report, Accessible Solutions’ January 20, 2009 home modification report, the fact that Mr. MacPherson’s family wished to have Mr. MacPherson purchase a home closer to them rather than renovate his existing home, and the law limiting the amount for the purchase of a new home to the amount that would have been required for renovations to the existing home, and which then indicated that Intact would consider $252,000 towards the renovation of the existing home or the purchase of a new home. I do not attach any significance to the fact that Ms. Gucciardi stated that Intact would “consider”, rather than “pay” or “agree to pay”, the sum of $252,000. I find that Intact directly addressed Mr. MacPherson’s entitlement, not only to the cost of renovating his existing home, but to the cost of purchasing his own home, based on information from Mr. MacPherson’s family, his housing assessor, Intact’s own assessor, and the applicable legislation. In light of Ms. Gucciardi’s concern, as noted in Ms. Hull’s April 21, 2009 correspondence, to the effect that Intact had a fairly involved decision-making process to determine entitlement for what were fairly significant rehabilitation benefits, I find that Intact had considered the matter prior to its issuing its Explanation of Benefits and covering letter on May 19, 2009. I find that Intact was prepared to, and, in fact, agreed to, the renovation of Mr. MacPherson’s home or the purchase of a new home, for the sum of $252,000.

I do not find that Ms. Gucciardi’s February 5, 2010 letter and/or the accompanying Explanation of Benefits nullified Intact’s original commitment to pay $252,000 towards the purchase of a new home. As noted, Intact fully considered the issue and agreed to pay $252,000 for this purpose. It did not indicate that additional documentation would be required, in the form of either a new treatment plan or an agreement of purchase and sale for his existing house or a new house. I find significant that, even as late as its February 5, 2010 correspondence, Intact did not dispute Mr. MacPherson’s general entitlement to $252,000 towards either the renovation of his previous home or the purchase of a new home. Therefore, while the renovation of Mr. MacPherson’s existing home was apparently no longer possible, I find that Intact had still agreed to pay $252,000 towards the purchase of a new home.

Pursuant to section 38(8.1), Intact needed to give Mr. MacPherson a notice under section 38(8)1.ii (describing the expenses contemplated by the Treatment Plan that it agreed to pay for) within ten business days of receiving the application. As noted, Intact did not provide such a notice until May 19, 2009, roughly two months after receiving the application. Pursuant to section 38(8.2)2, since Intact failed to provide the requisite notice within the allotted time, it was required to pay for the goods and services contemplated under the Treatment Plan that related to the period from approximately March 26, 2009 (the eleventh business day after receipt of the application) to May 19, 2009 (the day Intact issued its Explanation of Benefits and covering letter).

The difficulty is that, within the body of the Treatment Plan itself (specifically, within the October 27, 2008 report), Adapt-Able noted Mr. MacPherson’s wish to relocate to Stratford, the need to investigate alternative housing options and its forthcoming supplemental report for this purpose. On June 8, 2009 (a few weeks after the May 19, 2009 letter, in which Ms. Gucciardi noted Mr. MacPherson’s wish to move closer to his family in Stratford), Ms. Hull informed Intact that it was in Mr. MacPherson’s best interests to purchase a new home. At some point in the ensuing months, Mr. MacPherson appears to have sold his original home. In these circumstances, I am not prepared to find, pursuant to section 38(8.2)2, that Intact was required to pay for the renovation of Mr. MacPherson’s original home, as an expense contemplated by the Treatment Plan that related to the roughly two months between the receipt of the Application and the Explanation of Benefits and covering letter.

(c) The Need for an Invoice

If, however, I am wrong in this analysis, pursuant to section 38(17.2), which states that an insurer shall pay medical and rehabilitation benefits it has agreed to pay or that it is required “under this section” to pay, Intact would be required to pay $252,000 towards home modifications within thirty days of receiving an invoice for them.

The need for an invoice can also be said to arise from section 38(11). Pursuant to section 38(11), if an insurer discloses a conflict of interest relating to a treatment plan and the insured person does not withdraw the application under section 38(9), an insurer is required to pay for the goods and services it agreed to pay for in the notice under section 38(8)1 within thirty days of receiving an invoice for them. Section 38(11) may not apply to the present case since Intact did not disclose a conflict of interest in respect of the Treatment Plan. However, to the extent that section 38(11) creates a stand-alone duty on an insurer to pay for expenses it has agreed to pay, then Intact would be required to pay $252,000 towards home modifications or the purchase of a new home within thirty days of receiving an invoice for either of these purposes.

The issue at this point is whether Mr. MacPherson provided an “invoice” for either the renovation of his existing home or the purchase of a new home. I find that he did not.

Pursuant to section 15(5) of the Schedule, an insurer is required to pay for all reasonable and necessary rehabilitation expenses “incurred” by or on behalf of the insured person. Arbitration decisions have consistently interpreted the term “incurred” in a liberal fashion, finding, in essence, that an insured person must show that he or she has become liable in some way in respect of the goods or services provided or claimed.²

Pursuant to sections 38(11) and 38(17.2), an insurer’s obligation to pay for medical and rehabilitation benefits crystallizes upon an insured person’s providing an “invoice.” This term is not defined in the Schedule and there appears to be a dearth of case law on its meaning. The Concise Oxford Dictionary, Eleventh Edition, defines “invoice” as a “list of goods shipped or sent, or services rendered, with prices and charges; a bill.” Black’s Law Dictionary, Ninth Edition, defines the term as an “itemized list of goods or services furnished by a seller to a buyer, usu[ually] specifying the price and terms of sale; a bill of costs.” The Dictionary of Canadian Law, Third Edition, defines “invoice” as a “written account of the particulars of goods shipped or sent to a purchaser or for labour or services provided.” The common element in these definitions is that the relevant goods or services must already have been obtained or provided. In my view, however, the notion of an “invoice” must be read in light of the broad meaning attributed to the term “incurred” under section 15. In this context, I do not interpret “invoice” as requiring that an insured person actually have paid for and received the goods or services in question. However, the person must have taken some concrete, positive step towards acquiring the goods or services claimed, and in such a manner as to create some degree of liability for the payment of those goods or services.

In this case, while Mr. MacPherson has throughout this process claimed the costs of renovating his original home, and submitted a Treatment Plan and detailed housing assessment for this purpose, Adapt-Able, in fact, recommended against home modifications, Mr. MacPherson expressed a desire from very early on to move closer to his family in Stratford, and he has, apparently, gone ahead and sold his existing home. While Intact conducted its own assessment of the estimated costs of renovations and, in fact, committed a significant sum to this end, other than the submission of a Treatment Plan and a tenuously supportive housing report, I find that Mr. MacPherson took no active steps towards the renovation of his home and assumed no liability for the payment of this service. Even on an expansive interpretation of the term “invoice” under the Schedule, and despite Intact’s agreement to pay $252,000 towards home modifications, in the absence of any concrete, positive steps giving rise to some liability for the payment of the renovation of his existing home, I have no authority to order Intact to pay him the funds in question.

Mr. MacPherson has never formally claimed the costs of the purchase of a new home. Nevertheless, I have found that he provided sufficient information to Intact to constitute an application for this purpose, and that Intact responded by agreeing to provide him with $252,000 towards a new house. Again, however, the report Mr. MacPherson provided in support of this goal was very preliminary in nature, with Adapt-Able concluding its assessment by offering to “conduct a review of all active listings available, and visit and assess the most suitable homes.” In June 2009, Ms. Hull confirmed that Adapt-Able would be “willing to review properties and housing markets with [Intact’s] experts in order to find a compromise that is in the best interests of [Mr. MacPherson].” Other than the mediation that took place, I have no evidence as to what, if any, discussions took place between the parties or their respective experts to identify the home that Mr. MacPherson might purchase. I am unable to conclude on this evidence that Mr. MacPherson has taken concrete steps towards the purchase of a new home, so as to constitute some form of “invoice” requiring Intact to pay him the funds committed to this purpose.

The fact remains, though, that Mr. MacPherson appears to have sold his existing home and, to this extent, is in need of new accommodation suitable to his needs. Is this not a concrete, positive step giving rise to some degree of liability for the payment of the purchase of a new home? I find that it is not. I have no evidence as to the reason Mr. MacPherson sold his existing house, particularly since the housing issue was far from being resolved. Assuming, however, that I can infer that he sold his house for the express purpose of moving towards the purchase of a new one, I see no evidence that he took any actual steps to acquire a new home. Ms. Hull has advised that Mr. MacPherson’s family has been searching for an appropriate home to purchase and modify, but that, without funds from Intact, “they cannot move forward to help [their son].” Ms. Hull also advised that Mr. MacPherson’s house was sold and had very little equity in it. Finally, Ms. Hull submitted that it is unreasonable to expect Mr. MacPherson to first purchase a new house (and obtain an invoice), given the magnitude of the expenditure involved. While I am sensitive to these concerns, I have no evidence of the extent of the equity in Mr. MacPherson’s original home or what, if any, financial assistance Mr. MacPherson’s family would require from Intact in order to begin the process of purchasing a new home.³ Nor do I have any evidence of what, if any, actions Mr. MacPherson or his family has taken to, in fact, acquire a new home. I do not even have before me documentary proof of the sale of Mr. MacPherson’s original home (as Intact had requested in its February 5, 2010 correspondence). While the sale of Mr. MacPherson’s existing house could be an important step towards the purchase of a new one, on the limited evidence before me, I am unable to conclude that it constitutes a concrete and positive step towards the actual purchase of a new home.

I am cognizant of the following principle underlying the rehabilitation process:

Effective rehabilitation requires the co-operation of both parties – the insurer and the insured person. Insurers are expected to explain the benefits are available and to assist insured persons in obtaining appropriate services.⁴

However, other than Intact’s February 5, 2010 request for more information concerning the sale of the original home and the purchase of a new one, I have no evidence that Intact has not co-operated with Mr. MacPherson or has failed to assist him in obtaining appropriate housing. While such evidence may exist, I am unable to find that Intact’s request for the noted information constitutes a lack of co-operation, particularly in light of its entitlement to an “invoice”, broadly understood, before it releases the funds to Mr. MacPherson. Thus, while I do not interpret the need for an “invoice” under section 38 to mean that a person must, in fact, pay for and receive the claimed goods or services (particularly where, as here, there is a very significant asset in issue), I conclude that Mr. MacPherson has not taken sufficient steps towards the actual purchase of new house, so as to impose on Intact an obligation to forward the committed funds to him.

Therefore, on the evidence before me, I find that Intact is not, at this time, liable to pay Mr. MacPherson the $252,000 it committed to either the renovation of his existing home or the purchase of a new one.

Interest and Special Award

Given that the benefits in question are not owing at this time, Intact is not liable to pay interest or a special award.

EXPENSES:

The parties did not address the issue of expenses. I urge them to attempt to resolve this matter. If required, the parties may make submissions on the issue in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

October 7, 2010

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario