Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 288

FSCO A14-003770

BETWEEN:

MICHAEL KEEPING

Applicant

and

AVIVA CANADA INC.

Insurer

Before:

Arbitrator Marcel D. Mongeon

Heard:

In person at ADR Chambers on August 16, 17 and 18, 2016

Appearances:

Mr. Michael Keeping participated

Mr. Charles E. Gluckstein participated for Mr. Michael Keeping

Ms. Joy Stothers participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Michael Keeping, was injured in a motor vehicle accident on June 4, 2013 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Is the Applicant entitled to receive an attendant care benefit and, if so, for what periods and in what amounts?
Is the Applicant entitled to interest on any amounts ordered?
Is either party entitled to its expenses of the Arbitration?

Result:

The Applicant shall receive an attendant care benefit at the rate of $3,526.34 per month from September 15, 2013 to December 31, 2013. No other benefit is payable.
The Applicant is entitled to interest on the attendant care benefit awarded at 1% per month from the date that a claim for such benefits was made to the Insurer.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Amounts Sought and Position of the Parties

Based on Form 1s the Applicant seeks payment of attendant care benefits for the amounts as follows for three specified time periods:

The period from June 4, 2013 to July 27, 2013 at $6,000.00 per month;
The period from July 28, 2013 to December 31, 2013 at $3,526.34 per month;
The period from May 20, 2015 and ongoing at $6,000.00 per month.

The Applicant is not making any claim for attendant care benefits for the period of his incarceration: January 1, 2014 to May 19, 2015.

The Insurer resists payment of attendant care benefits on the basis that they were not “incurred” within the meaning of s. 3(7)(e) of the Schedule. In turn, the Insurer asserts that there has been no proof of an economic loss incurred by any of the purported caregivers.

Facts

The following are the facts I find from the testimony of the witnesses and the evidence entered as Exhibits. The Applicant and two other witnesses on behalf of the Applicant testified. No witnesses testified on behalf of the Insurer.

The Applicant was involved in a serious motor vehicle accident. The Applicant was the unlicensed driver of a vehicle which hit a tree at high speed. The passenger sitting in the front seat of the vehicle was killed. Two passengers in the rear seats suffered serious injuries.

The Applicant was charged and pleaded guilty to offences related to the accident. As a result of the operation of section 31 of the Schedule, the Applicant was not eligible for a non-earner benefit or housekeeping benefits. His claim for benefits under the Schedule is limited to this claim for attendant care benefits.

The Applicant was treated at the St. Catharines General Hospital of the Niagara Health System after the accident. Because of the severity of the Applicant’s injuries, he was transported within hours by air ambulance to the Hamilton General Hospital on June 4, 2013. On arrival in Hamilton, he was unconscious.² As the Applicant recovered, he was repatriated to the St. Catharines General Hospital on June 15, 2013.

The Applicant has been designated by the Insurer as catastrophically impaired within the meaning of the Schedule. The practical implication of that designation is to increase the monthly limits of the attendant care benefit to $6,000.00/month and the aggregate limit on the benefit to $1 million.

The evidence of attendant care by friends or family during the Applicant’s hospital stay and other times was by the Applicant’s own testimony and that of Ms. Christina Graham.

The Applicant was discharged from hospital in St. Catharines on June 21, 2013 accompanied by his mother.³ After his discharge, the Applicant stayed with his mother for a period of time. He described his time spent with his mother as: “I hid out in the basement.” Eventually, the Applicant went to stay with another friend of his, Larry Davis, for about 3 weeks to a month.

In early September 2013, the Applicant surrendered himself to police to be arrested on charges relating to the accident. He was detained in custody until a bail hearing. At the bail hearing, the Applicant’s friend, Ms. Christina Graham, acted as his surety by posting a $10,000.00 bond.

Ms. Graham took the Applicant into her home on his discharge from custody in order to provide a watchful eye on him (as his surety). She was able to provide him with a stable environment where he would be cared for. She provided reminders as to appointments and provided transportation as needed. His confinement in Ms. Graham’s home was also a condition of his bail release.

Ms. Graham’s employment situation enabled her to work from home, as a home-based customer service agent for a utility company. This allowed for an easier task in watching over the Applicant. She was required to work with a telephone and computer terminal to address customer inquiries. When she needed a few minutes to deal with the Applicant, she could log out of the telephone system.

Ms. Graham’s “will say” statement⁴ was consistent with her testimony.

I find the following to be important facts relating to Ms. Graham’s housing of the Applicant:

Ms. Graham was receiving $300.00 to $350.00 per month from the Applicant for everything that Ms. Graham provided. This included providing the Applicant with all of his groceries. The source of the money from the Applicant was his receipt of social assistance through the Ontario Works program. I accept as a fact that Ms. Graham had previously rented this room to an arm’s length tenant for $500.00 per month. This amount did not include groceries.

Ms. Graham had a television and internet installed in the Applicant’s room. Although she had no bills showing this, she testified that she incurred increased costs. I find her testimony on this point credible and reasonable and accept she incurred higher costs.

When required, Ms. Graham would drive the Applicant to legal and medical appointments. She did not receive any reimbursement of gas or parking on such trips. Ms. Graham was not able to provide a record of dates and places for such trips. It was pointed out by the Insurer that on reviewing the OHIP statement for the Applicant,⁵ there were no entries for any services paid by OHIP between September and December 2013.

As a fact, I find that there were likely no more than 5 such trips during the period of Ms. Graham’s care of the Applicant. I also find that as a fact, there would be relatively modest expenses for such trips.

Ms Graham testified that she “mothered” the Applicant. I find this testimony credible and that it is a reasonable description of the level of care that was provided to the Applicant.

On cross-examination, Ms. Graham acknowledged that she had no formal training as a personal support worker. From the middle of September 2013 until the Applicant’s departure in December 2013, I find that Ms. Graham did provide the Applicant with services as an aide or an attendant. I am satisfied that in her testimony that the activities she provided to the Applicant were consistent with the activities for an aide or attendant as described in the Form 1.

Ms. Graham may have had an income loss as a result of assisting the Applicant. As there were no documents produced as required by the Dispute Resolution Practice Code, I disallowed income tax records of Ms. Graham from being entered into evidence. However, Ms. Graham testified to suffering an income loss of more than $1,000.00 by having to take some time off from work to deal with the Applicant’s needs. I find it credible that she sustained some income loss related to the Applicant’s care.

In December 2013, the relationship between the Applicant and Ms. Graham came to an end. The Applicant said to Ms. Graham that he was going to go and stay with his grandmother who was known to Ms. Graham.

Ms. Graham determined that the Applicant was not with his grandmother but rather likely was staying with his children’s mother. Ms. Graham was concerned about her obligations as surety for the Applicant and, accordingly, sought guidance from the police. The police advised Ms. Graham that if the Applicant was not in her custody, her surety was at risk. With information provided by Ms. Graham, the police took the Applicant into custody early in January 2014.

On being taken into custody, the Applicant pled guilty to the pending charges. The Applicant was held in custody until discharged on or about May 19, 2015.

The Applicant on discharge went to live with his grandmother for a few days. The Applicant’s grandmother assisted the Applicant by giving him $1,500.00.

Eventually, the Applicant was admitted to the Peel Youth Centre to assist him with his transition from detention back into society. During his stay at the youth centre, the Applicant was provided assistance from staff and other residents.

The Insurer entered Exhibits 15 and 16 into evidence showing surveillance of the Applicant at the youth centre in November 2015 and May 2016. The reports are unremarkable showing the Applicant walking in and around the centre, drinking coffee, smoking and interacting with other residents of the centre.

On leaving the Peel Youth Centre, the Applicant has stayed with a number of different friends which he continues to do. The Applicant testified that his friends help him financially. However, I note that no aspect of the Applicant’s testimony about staying with anyone other than Ms. Graham touched on receiving any care that I would expect from an attendant or aide. I specifically note that no evidence was presented of any services being received in the detail of Form 1.

The surveillance report entered as Exhibit 16 also touches on surveillance of the Applicant conducted in June and July 2016. The reports show the Applicant walking and riding a bicycle in and around his friends’ address, smoking and interacting with others.

I have the following specific facts relating to the assessments of the Applicant’s attendant care needs. Some of these were conducted after the actual periods of need.

Mr. Sean Allen, a Registered Occupational Therapist, met with the Applicant at Ms. Graham’s home on October 31 and November 4, 2013 to conduct an assessment of the Applicant’s attendant care needs. A report was prepared by Mr. Allen⁶ which provides an estimate of the Applicant’s attendant care needs based on these assessments.

Two Form 1s were prepared: the first Form 1⁷ was prepared for the “In hospital” period from June 4, 2013 to July 27, 2013;⁸ the second Form 1⁹ was prepared for the “Current Needs” as referenced in the November 5, 2013 report. The recommended attendant care benefit for the first “In Hospital” period was evaluated on the Form 1 at $7,838.49 monthly; the second “Current Needs” period was evaluated at $3,526.34 monthly.

A third assessment was completed by Mr. Allen while the Applicant was in custody in the Niagara Detention Centre on July 19, 2014. Mr. Allen testified that the Applicant was separated from him through a Plexiglas window. Although he was able to observe and speak with the Applicant and pass the Applicant forms and material during the examination, he was not able to touch the Applicant. In his report and, more particularly in his testimony, Mr. Allen acknowledged that there were aspects of his assessment that required a physical examination of the Applicant and, therefore, were not conducted. Despite this limitation, a third Form 1¹⁰ and corresponding report¹¹ were completed by Mr. Allen on July 19, 2014. The recommended attendant care benefit was assessed at $7,526.02 monthly.

The Insurer attempted to conduct an assessment of attendant care needs of the Applicant while he was detained in the Niagara Detention Centre on September 15, 2014. In that assessment report,¹² the assessor concluded:¹³

Based on the paucity of objective findings from this in-person assessment, this writer is unable to confidently provide a clinical opinion regarding functional abilities for Mr. Keeping without further physical/functional assessment. Therefore, this writer is unable to address insurer questions pertaining to attendant care for this claimant. Once [the Applicant] is no longer detained in the detention facility an In-Home assessment is recommended to determine if any attendant care is required.

The Insurer has conducted an assessment of attendant care needs shortly before the Hearing in this matter. The report and Form 1 relating to that assessment were not available at the time of the Hearing.

I received no evidence on what the standard of a Registered Occupational Therapist is in conducting an assessment of attendant care needs.

Applicable Law

The applicable provisions in the Schedule are:

Attendant care benefits are provided under section 19 of the Schedule. The relevant wording in section 19(1) (a) is:

Attendant care benefits shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant …

Breaking this down, we find that the expense must fulfil the following requirements:

reasonable and necessary
incurred
for services provided
by an aide or attendant.

Section 3(7)(c) of the Schedule states that: “an aide or attendant for a person includes a family member or friend who acts as the person’s aide or attendant, even if the family member or friend does not possess any special qualifications.”

Section 3(7)(e) further provides:

An expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B) sustained an economic loss as a result of providing the goods or services to the insured person.

The last provision in 3(7)(e)(iii)(B) on economic loss was in flux during 2013 and 2014 because of the Court of Appeal decision in Henry v. Gore Mutual Insurance Company.¹⁴ That decision was rendered on July 16, 2013 and clarified the law on the need for economic loss. In that decision, Hoy, JA, made it clear that the requirement to show economic loss “provides a rough check on attendant care costs.” She further declined to provide a precise definition of economic loss but in the case before her, held that economic loss was clear as the attendant had given up her employment to care for her son.

The decision in Simser v. Aviva Canada Inc.,¹⁵ a decision of the Divisional Court, has provided additional clarity on the meaning of economic loss. That decision suggests that a loss of time is not sufficient to establish economic loss. There must be an actual financial or pecuniary loss. In that case, the only evidence available was that family members lost time in providing attendant care. In such a case, economic loss is not established.

The arbitral decision of Aidoo and Security National Insurance Co./Monnex Insurance Mgmt. Inc.¹⁶ demonstrates that oral testimony alone may be sufficient to establish economic loss. However, in that case, the delay in providing documentary evidence was used to withhold the payment of interest on the attendant care benefit. Ultimately, the general principle on the issue must be that, on a balance of probabilities or on a preponderance of the evidence presented, I must be satisfied that an economic loss occurred.

Additional relevant law is found in paragraphs 51 and 52, in part, of the Court of Appeal’s decision in Monks v. ING Insurance Company of Canada¹⁷ which provides interpretation rules¹⁸ as follows:

It is well-established that insurance coverage provisions are to be interpreted broadly, while coverage exclusions or restrictions are to be construed narrowly, in favour of the insured. … Consequently, to the extent that the word "incurred" as used in the SABS restricts the coverage available … it must be assigned a narrow meaning.

Moreover, a broad interpretation of the word "incurred" under the SABS is consistent with the policy objective that accident victims promptly receive the statutory accident benefits to which they are entitled under the Act and their automobile insurance policies. It also prevents an insurer from benefitting from an insured's lack of financial resources.

Were attendant care services actually provided by a friend or family member at any time to the Applicant?

I am satisfied on the evidence presented that the only period of time during which services were provided to the Applicant as an aide or an attendant were from the middle of September 2013 until December 31, 2013. The services were provided by Ms. Christina Graham.

I have made this determination on the lack of evidence of any services as an aide or attendant being provided at any other time. In coming to this decision, I have reviewed the Form 1 listing of different types of services and have compared it to the testimony of the Applicant and his other witnesses. I find that on a preponderance of the evidence, a case has not been made out that the Applicant received attendant care from family or friends other than the time he was in Ms. Graham’s care.

Although some evidence may have shown incidental assistance while the Applicant was hospitalized which is covered in the Form 1, for example, assistance in helping the Applicant go the washroom, if that assistance does not occur as suggested in the Form 1, I conclude that it is not as an attendant. Continuing with the washroom example, I note that under Level 2 of the Form 1, an attendant under “Hygiene” is expected not only to assist the Applicant with bathroom tasks but the attendant is then expected to clean the bathroom after the Applicant’s use.

In similar fashion, although the Applicant testified in regards to his mother and friend housing him, there was insufficient evidence provided for me to properly conclude that his mother, his friend or anyone else provided attendant care services as an aide or an attendant. Comparing the evidence to the Form 1, there was no evidence of the Applicant receiving any of the tasks listed in Form 1.

I note that while the Applicant was in hospital, hospital staff were responsible for providing care. A review of the extensive notes of the St. Catharines General Hospital at Exhibit 8 provide this evidence.

Although on his discharge from the hospital, the Applicant did stay with his mother, I have no significant evidence of her providing any services as an aide or attendant. In fact, the Applicant’s own recollection of this time was that he was “hiding out in the basement” which would not be consistent with his believing that he was in a caring environment where attendant care would be expected.

After leaving his mother’s house, his friend, Larry, allowed him to stay with him. Again, there was no evidence of what types of services were provided that would be analogous to those found in the Form 1. The same applies for the Applicant’s stay at the Peel Youth Centre and his current situation staying with friends. In the absence of any evidence to corroborate the testimony of the Applicant about what was happening, it is appropriate that I find that no attendant care was provided by any of these people.

Does economic loss have to be periodically proved or is it a once and for all test?

The Applicant has argued that economic loss need only be shown at one point by a friend or family member and, thereafter, it is established for all other periods. The Insurer argues the contrary.

As noted by Justice Hoy’s decision in Henry,¹⁹ the economic loss test is a “rough check” on the payment of attendant care benefits. A reading of 3(7)(e) of the Schedule shows the use of the language that “an expense in respect of goods or services to which the expense relates” must show an economic loss “as a result of providing the goods or services to the insured person.”

The rough check to be applied, the need to show the economic loss, occurs for each expense. Each time the Insurer is required to consider a monthly payment of attendant care services, the Applicant has an onus to show the economic loss. In the case of multiple people providing services, as the Insurer has argued, those multiple people must each provide evidence of economic loss.

It is not sufficient to show an economic loss at some time during the entire passage of time from one person. This would not, in my mind, be fulfilling the “rough check” intent or complying with the language of 3(7)(e). I believe it is a reasonable interpretation of the Schedule consistent with the Monks interpretation test referred to above, to require a regular showing of economic loss at each month that an attendant care benefit is sought for each friend or family member who is alleged to have provided such services.

For whom has economic loss been established through the evidence?

I am satisfied that Ms. Christina Graham has established an economic loss for each of the months or partial months for the period between September 15, 2013 and December 31, 2013. I specifically note that Ms. Graham took less money for the rent ($350.00) from the Applicant than she had from a previous tenant ($500.00); she had the Applicant’s grocery costs (an unspecified amount); she had additional costs for internet and TV (an unspecified amount); she likely lost time from work (an unspecified amount although I accept as credible Ms. Graham’s testimony that her income tax returns showed a $1,000.00 loss over the previous year); and provided transportation on occasion to the Applicant which involved gas and parking (an unspecified but likely nominal amount).

As noted by the Monks interpretation principles above, I need not be too specific about what the actual loss suffered was with precision as to the amounts. The fact that I have determined that there was an economic loss but am unable to specify that loss with precision is sufficient for the purposes of 3(7)(e). I am, on a preponderance of the evidence, satisfied that hosting the Applicant has cost Ms. Graham money in each of the months that she hosted him.

Other than for Ms. Graham, no evidence was provided that anyone caring for the Applicant sustained an economic loss at any other time. Although the Applicant testified that people may have had to pay parking and gas while visiting him in the hospital, I find that there was no evidence before me that anyone’s loss has been sufficient for me to accept it as an economic loss to and before September 2013.

With the exception of the $1,500.00 received from the grandmother, and the Applicant’s testimony stating he received assistance from other people, I find as a fact that no evidence has been provided which would allow me to sufficiently find anyone suffered an economic loss during this time. As to the $1,500.00 provided by the grandmother on the Applicant’s release from custody, I find that no evidence was provided that would allow me to conclude that the amount was provided as a provision of attendant care. I also note that no witness other than the Applicant testified to corroborate these points.

Does the July 2014 assessment continue to be operative?

The answer to this question continues to be relevant. If, for example, a friend or family member later provided attendant care services for the Applicant and suffered an economic loss as a result, is the Applicant entitled to receive the attendant care benefit in the amount of $6,000.00 per month as established while he was in detention?

First, I question the ability of the Registered Occupational Therapist to conduct an assessment of the attendant care needs of the Applicant while he was in detention. No evidence was provided that the Applicant was unable to cope with the prison environment or that special adjustments had to be made. A reasonable conclusion that I come to is that since the Applicant could cope with the prison environment without special adjustments or an aide or any attendant care, it is reasonable to expect that on his exit from the facility, this would still be the case.

I also question how the Applicant’s attendant care needs went up from the monthly amount of $3,526.34 established in the actual environment that care was being delivered by Ms. Graham in November 2013 to over $6,000.00 in an artificial environment behind Plexiglas in the Detention Centre in July 2014. One would normally expect the amount of attendant care to decline over time as the Applicant recovered from the accident. No explanation was provided for the increase.

I also note that the July 2014 report relies on interviews with the Applicant’s mother for additional information as to his status. Except for a brief period of time immediately after his discharge from hospital after the accident, the Applicant from his own testimony has had little meaningful time with his mother. I also note that the mother was not called to corroborate any of the statements attributed to her.

I note that the Insurer’s Occupational Therapist was unable to conduct their assessment while the Applicant was being detained. I do not draw the conclusion that the Applicant’s Occupational Therapist should have done the same. Rather, I question the report on its face, given the artificial nature of the assessment where the amount increased without explanation from a previous assessment and that the assessor was making assumptions about a future situation.

The completion of a Form 1 is an important aspect of the payment of attendant care benefits. It is required under section 42 of the Schedule. Although section 42 generally speaks to the entitlement of an Insurer to conduct its own assessments of an Applicant’s attendant care needs, subsection 42(9) provides, in part:

new assessments of attendant care needs may be submitted to an insurer at any time there are changes that would affect the amount of the benefits.

In this case, each time the Applicant’s living circumstances changed in a significant fashion, it is reasonable for his attendant care needs to be determined in the new environment. As a related conclusion, when the Applicant was released from detention, that reset the attendant care assessment process requiring a new Form 1. Being in a prison is a very different set of circumstances from what the Applicant would experience living on his own. As a result, any assessment performed in the prison environment would no longer be accurate or reflective of the challenges and circumstances that the Applicant faces which requires attendant care to compensate.

I conclude that the Form 1 of July 2014²⁰ does not represent an accurate assessment of the Applicant’s attendant care needs after his release from prison. Accordingly, I find that there is no appropriate Form 1 after that time on which to base any decision related to the amount of attendant care required.

What is the correct amount of the benefit and during which periods?

Based on the answers to the previous questions, there is only one period for which attendant care benefits satisfy the requirements of the Schedule. This is for the period from September 15, 2013 to December 31, 2013 in the amount established by the Form 1: $3,526.34 per month.

Interest

Normally, interest is paid on amounts owing from the date that the Insurer should have made those payments. There is no reason in this case to deviate from this basic rule. I award interest at 1% per month on the attendant care benefit to run from the date that a claim for such benefits was made to the Insurer.

EXPENSES:

If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 31, 2016

Marcel D. Mongeon

Arbitrator

Date