Angela Massicotte v. Echelon General Insurance Company, 2017 ONFSCDRS 126

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 126

FSCO A16-001578

BETWEEN:

ANGELA MASSICOTTE

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Thérèse Reilly

Heard:

In person in North Bay, Ontario on February 27 & 28, 2017 and by written submissions completed March 30, 2017

Appearances:

Ms. Tammy Ring, Lawyer, participated for Ms. Angela Massicotte

Mr. Jamie Pollack, Lawyer, participated for Echelon General Insurance Company

Issues:

The Applicant, Ms. Angela Massicotte, was injured in a motor vehicle accident (“MVA”) on September 30, 2012. She sought accident benefits from Echelon General Insurance Company (“Echelon”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Massicotte, through her 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:

1. Is the Applicant entitled to Attendant Care Benefits (“ACBs”) from January 1, 2015 to January 31, 2016?

2. Is the Applicant entitled to ACBs from February 1, 2016 to February 28, 2017?

3. Is the Applicant entitled to a Special Award because the Insurer unreasonably withheld or delayed payments?

4. Is the Applicant entitled to interest on any amounts ordered?

5. Is either party entitled to its expenses of the Arbitration?

Result:

1. The Applicant is not entitled to receive an ACB from January 1, 2015 to January 31, 2016.

2. The Applicant is not entitled to receive an ACB from February 1, 2016 to February 28, 2017.

3. The Applicant is not entitled to a Special Award.

4. The Applicant is not entitled to interest.

5. 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.

PRELIMINARY ISSUE

The Hearing was held on February 27 and 28, 2017. At the Hearing, the Applicant requested the addition of a Special Award. The Insurer did not consent or object to adding a Special Award. I ordered that the issue of a Special Award be added to the list of items in dispute.

The Applicant’s Position

The Applicant sustained a Catastrophic Impairment as a result of the MVA. Among the benefits paid to the Applicant, the Insurer paid the Applicant’s ACBs in the year 2014 at a rate of $6,000.00 per month. No payments have been made for ACBs since January 2015.

The Applicant claims she is entitled to payment of ACBs for two periods from:

a. January 1, 2015 to February 1, 2016, for services provided by Ms. Melissa Chapin, and

b. February 1, 2016 to date and ongoing for services provided by Mr. Brendan Lafontaine

The Applicant maintains the quantum is $6,000.00 per month for ACBs.²

The Insurer’s Position

The Insurer maintains the Applicant has not met her burden of proving economic loss for either service provider. Moreover, the Applicant is not entitled to payment of ACBs from January 1, 2015 to date and ongoing due to her failure to provide information as reasonably requested by the Insurer under sections 33 and 46.2 of the Schedule, as noted below. The Insurer maintains the quantum is $3,793.46 per month.³

Statutory Provisions

ACBs are provided under section 19 of the Schedule. The relevant wording in section 19 states:

Attendant Care Benefit

19 (1) Attendant care benefits shall pay for all reasonable and necessary expenses,

(a) 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 or by a long-term care facility, including a long-term care home under the Long-Term Care Homes Act, 2007 or a chronic care hospital; and

19 (3) The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:

1. If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28 (1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28 (1) has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,

i. $3,000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or

ii. $6,000 per month, if the insured person sustained a catastrophic impairment as a result of the accident.

Section 3 of the Schedule states, in part:

3 (7) For the purposes of this Regulation,

(c) 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.

(e) 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. (my emphasis)

Section 33 of the Schedule states, in part:

33 (1) An applicant shall, within 10 business days after receiving a request from the Insurer, provide the Insurer with the following:

1. Any information reasonably required to assist the Insurer in determining the applicant’s entitlement to a benefit.

(6) The Insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2). (my emphasis)

Section 46.2 of the Schedule further states:

46.2 (1) An Insurer may request any of the following information from a provider:

1. Any information required to assist the Insurer, acting reasonably, to determine its liability for the payment, including access to inspect and copy the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment.

(2) The provider shall give the Insurer the information requested under subsection (1) within 10 business days after receiving the request.

EVIDENCE AND ANALYSIS:

The Applicant, her treating Occupational Therapist (“OT”), Ms. Claudia Maurice, and the two ACB service providers, Ms. Chapin and Mr. Lafontaine, testified at the Hearing, as did Ms. Maria Ritchie, a former neighbour and friend of the Applicant. The adjuster, Mr. Michael McNeil, testified for the Insurer.

The Applicant

The Applicant lives in North Bay with her two kids who are 16 and 13 years old. She does not have any memory of the MVA. She testified that she sustained a brain injury in the MVA and that memory loss is a huge issue for her. She suffers from anxiety and depression and she has issues processing things and she has balance issues. Her driver’s licence was suspended after the MVA due to her injuries. She was in the hospital in Tennessee for 2 weeks after the MVA and in the hospital in North Bay for one month. She has had a case manager, and has had various medical treatments including treatment by a psychologist, physiotherapy treatment, speech therapy, and occupational therapy. Some of the treatments were provided in Toronto. She attends the appointments with the service providers. At the time of the MVA, she was self-employed as an IT consultant. She is no longer self-employed as an IT consultant.

The Applicant stated that Ms. Chapin and Mr. Lafontaine (the “Service Providers”) help with her daily activities: groceries, shovelling snow, taking her to appointments in North Bay or Toronto, helping her at those appointments, and helping with her children. She sees her Ms. Maurice, OT, about once a month.

She provided testimony regarding the first service provider, Ms. Chapin, who is the daughter of Ms. Maurice. Ms. Chapin would go to Toronto with her for medical appointments. Ms. Chapin was working at two prior jobs, a local restaurant and the YMCA, which ended when she started working for the Applicant. The Applicant stated that Ms. Chapin’s employers knew she may have to leave work if the Applicant needed her. The Applicant employed her because she wanted someone she knew. When Ms. Chapin started a new full-time position at Sears, the Applicant hired Mr. Lafontaine whom she has known for years. He is the son of her ex-partner. Mr. Lafontaine helps her with appointments and other duties in her life which she requires assistance organizing. He has been with her since February 2016. He also worked at a local restaurant when he provided her with attendant care.

Ms. Maria Ritchie

Ms. Ritchie is a close friend and former next door neighbour of the Applicant. She gave evidence that the Applicant was independent before the MVA and she has observed changes in the Applicant since the MVA. Before the MVA, the Applicant was a top worker, and a great mom. After the MVA, she lost her confidence, and her ability to deal with things out of ordinary. Ms. Ritchie further stated that the Applicant does not have the same ability to think on her feet. If you take the Applicant out of an ordinary situation, the Applicant gets lost, withdrawn, and becomes extremely anxious. She agreed on cross-examination that she is not a medical expert but she expressed concern for the Applicant in the event an emergency situation should arise.

Ms. Claudia Maurice

Ms. Maurice has been in practice as an OT for 16 years. She testified that she completes about 50-60 attendant care assessments per year. Her first meeting with the Applicant was in mid-November 2012. She concluded that 24-hour attendant care was needed. She presented an overview of the Applicant’s injuries and impairments which include a traumatic brain injury, ongoing headaches, a right eye injury, blurred vision, dizziness, a weak left side, balance issues, depth perception problems, short-term memory problems, anxiety, and difficulty handling new and changing conditions. Also, the Applicant easily gets overwhelmed.

She conducted an in-home assessment of the Applicant and prepared a Form 1 - Assessment of Attendant Care Needs and an in-home assessment report, dated April 16, 2013. In this report, Ms. Maurice stated the Applicant required assistance with medication, with feeding, and with mobility (for stairs); however, the majority of the time she allotted on the Form 1 was for 24-hour supervision.⁴ The total Form 1 cost was in the amount of $7,735.69.

An Insurer Examination was subsequently conducted by Mr. Kevin Reed, OT. Mr. Reed was not called as a witness at the Hearing but his report of May 7, 2013 was introduced as an Exhibit. In this report, he agreed with Ms. Maurice that the Applicant required 24-hour care, a total Form 1 cost of $7,859.32.⁵

Ms. Maurice completed a reassessment of attendant care needs in 2015. Her opinion remained unchanged that the Applicant required 24-hour care for safety. The rate of ACBs in the

Form 1 was assessed at $7,503.23.⁶

Mr. Reed also conducted a reassessment of ACB needs on behalf of the Insurer and completed a further Form 1, dated July 30, 2015.⁷ He changed his opinion and opined the Applicant required 12 hours per day of supervision and care, and not 24 hours. He concluded that the Applicant did suffer from an impairment that resulted in the need for attendant care assistance for up to 12 hours per day. The Form 1 amount was reduced to $3,793.46. Mr. Reed noted that:⁸

The Applicant does demonstrate the need for supervisory care to be available for a total of 12 hours daily to address her impairments related to her visual disturbance which impacts mobility and movement through an unfamiliar or congested environment, and cognitive behavioural impairments which impacts her ability to plan/organise/implement and follow through with her daily activities and respond to novel and changing demands as occur.

Ms. Maurice testified that in her opinion, the Applicant currently needs 24-hour care. She testified that this does not mean that someone needs to be with the Applicant 24 hours, in person, but someone needs to be available to her during the 24-hour period as the Applicant needs both direct and indirect care. She was questioned on Mr. Reed’s re-assessment report and his conclusion that the Applicant requires only 12 hours of supervision. She disagrees with that assessment. She stated Mr. Reed noted the Applicant would have difficulty dealing with novel and emergency issues. She stated that he noted the Applicant’s memory shortfalls and that she would have trouble in real time emergencies. She further testified that the Applicant needs to have someone available to her should she come into any difficulties.

Ms. Maurice in cross-examination was also questioned on a report prepared by Dr. Dowhaniuk,⁹ a neuropsychologist, who had noted that the Applicant would require extra time when required to devise and execute a plan to complete a normal task. Ms. Maurice testified that this is significant in terms of the need for attendant care because it speaks to the fact that when the Applicant is faced with something new or unforeseen, the Applicant requires extra time to process the information and make an appropriate decision.

As to emergencies, Ms. Maurice admitted in cross-examination that to date, there have been no emergencies faced by the Applicant requiring supervisory assistance by the Service Providers.

Ms. Melissa Chapin

Ms. Chapin testified that as the service provider, she drove the Applicant to medical appointments, assisted with food preparation, helped the Applicant with her personal care, scheduling appointments and helped the Applicant when she struggled with any kind of change. She has known the Applicant for 10 years. She started providing attendant care in November 2012. At that time, she was working at the YMCA and at a restaurant as a hostess. Eventually, she left both positions. At the YMCA, she worked 20 to 30 hours at $12.00 an hour. At the restaurant, she worked for 2 years at $12.62 per hour plus tips for about 15-20 hours per week. When she started work with the Applicant, she stopped working at both the YMCA and the restaurant because the Applicant needed 24-hour care.

She could not recall if she had other work income when she worked for Applicant in 2013. She stated she started working at Sears in 2013, first on a part-time basis and then she moved to a full-time position as a Loss Prevention Officer and was paid $12.50 an hour. She believes the part-time position was for a year and then she was offered a full-time position with more hours. She was not specific on dates. At Sears, she was she still able to provide attendant care, as Sears was flexible and they knew she may have to leave at any time should the Applicant need her.

Ms. Chapin recalled working 10-15 hours per week, for about a year. Ms. Chapin then accepted a promotion to be a Loss Prevention Manager which she believed was in June or July of 2015, but she was not sure of the dates. She recalled she received a raise to $14.00 or $16.00 per hour when Sears began to increase her hours.

In July 2015, when she took on more hours at Sears as a Loss Prevention Manager, she testified she could still attend to the Applicant. In mid-2015, it became apparent to her that the Applicant was not sure that she could pay her for her attendant care services. She also wanted the full-time position at Sears as the Loss Prevention Manager as it met her career goals.

Ms. Chapin also worked at the hospital in North Bay in the summertime. She could not recall the exact date she stopped providing attendant care services.

Prior to working with the Applicant, Ms. Chapin studied community and justice services with a plan to go into a career in corrections and policing. She graduated in May 2012.

The Insurer in its submissions outlined the following chart which summarizes Ms. Chapin’s average monthly income based upon the documentation provided to the Insurer:¹⁰

Year

Income Documentation

Average Monthly Income

2012

T4 from ESM: $2,524.82

T4 from YMCA: $1,853.28

Assuming May to October, 2012: $729.69

2013

T4 from ESM: $864.78

Business income: $28,800

$72.48

(attendant care income $2,400 per month)

2014

T4 from Sears: $6,568.42

T4 from FFPA: $381.73

Business income: $10,000

Jan - April: attendant care income $2,400

May - December: $868.77

2015

T4 from Sears: $7,272.16

T4 from Sears: $14,044.91

T4A: $371.25

Jan - June: $1,212.03

July-December: $2,340.82

The Insurer maintains Ms. Chapin’s income documents on pre-MVA do not demonstrate an economic loss beyond April 2014.¹¹ Ms. Chapin made more money after April 2014 than in 2012. The income documents also do not demonstrate an economic loss in 2015 in that she earned more money in 2015 than in 2014.¹²

She was questioned about her income documents including her 2015 tax return and T4 slips.¹³ She acknowledged that her annual income for 2015 was $22,317.00 and that her income increased during the year in 2015. She acknowledged she earned $6,950.00¹⁴ more income in 2015 compared to 2014 and that her income increased.

Although she could not recall the date she started, Ms. Chapin produced records that indicated that she started work at Sears in 2014. Ms. Chapin testified that she was offered both an increase in hours and a management position at Sears. She could not remember when this offer was made. Two letters from the District Manager, dated June 1, 2015 and June 18, 2015, were produced¹⁵ which confirm this information. The Applicant’s representative states these letters were not provided to the Insurer until July 6, 2015 and July 16, 2015.¹⁶

Ms. Chapin testified that she did not accept the offer initially because she was committed to working with the Applicant. She testified that she did eventually take on more hours at Sears and accepted a position as a full-time Loss Prevention Manager sometime after June 2015. She took on more hours at that time because the Applicant wasn’t sure she was going to be able to keep paying her for attendant care services. Also, important to note was that the offer of full-time employment met her career goals.

The Applicant’s representative, in its submissions, concludes that attendant care services were provided to the Applicant by Ms. Chapin and that she left her paid employment at the restaurant in 2013 to provide care to the Applicant. She also took on part-time work at Sears in 2014 and earned $6,568.42.¹⁷ If she had not been working with the Applicant at that time, Ms. Chapin would have obtained additional part-time jobs. It is on this basis that she has sustained an income loss.

Ms. Chapin continued to work at Sears in 2015. The Applicant, in its submissions, maintains that if Ms. Chapin had not been working with the Applicant, she would have increased her hours at Sears at an earlier time.¹⁸ As noted by the Insurer, the evidence provides no clear date on when the initial offer was made by Sears and how much time passed between the offer and when she finally accepted the full-time position at Sears.

The Applicant takes the position that economic loss need only be proven once. Ms. Chapin suffered an economic loss by leaving her employment at the YMCA and the restaurant as a result of providing attendant care services to the Applicant.

Alternatively, the Applicant submits that if the Arbitrator finds there is an ongoing need to prove economic loss, the requirement is met for the period of January 2015 to February 1, 2016 in that Ms. Chapin would “have maintained other employment while working at Sears, or taken on more hours there, but did not do so because she was providing attendant care to the Applicant. Her work history of holding more than one job at a time supports her evidence in this regard.”¹⁹ The expense for attendant care for Ms. Chapin from January 1, 2015 to January 31, 2016 is therefore incurred.

The Insurer, in its submissions, noted that Ms. Chapin in testifying had difficulty recalling specific dates of employment, hours worked and income received. She could not recall when she was offered the promotion at Sears. She testified that she worked at the North Bay hospital in 2012, although the Insurer states she did not report this employment on her income tax return. She reported only T4 income from the restaurant and the YMCA.²⁰

The Insurer submits that Ms. Chapin provided no documentation regarding her employment at the YMCA until the week prior to the Hearing. This is contrary to section 33 of the Schedule as will be discussed below. As well, the Insurer, in its submissions, concludes that Ms. Chapin has not demonstrated an economic loss beyond April 2014. In fact, it maintains she actually earned more money in 2015 than she did in 2014, and she had commenced a full-time position working in a field relating to her career goals. The Insurer concludes economic loss is not proven.²¹

The Insurer states it overpaid the Applicant’s ACBs in 2014, but that it is not seeking a repayment. Further, Ms. Chapin could have established an economic loss if she had turned down the full-time position at Sears but she did not.²² The Insurer asked Ms. Chapin to provide an authorization to obtain employment information from Sears. The authorization is signed February 15, 2016.²³

Mr. Brendan Lafontaine

Mr. Lafontaine testified that he has provided attendant care services to the Applicant from February 1, 2016 to the present. He testified that he worked at a restaurant prior to working for the Applicant. He earned $13.50 an hour and his hours varied between 15-30 hours each week. He started at the restaurant in 2012 and stopped working there at the end of January 2016 in order to start work with the Applicant. He maintains full-time hours were available to him in 2016 but he did not take on the additional hours. In 2015, he worked at the North Bay hospital during the summer. He was also a student at Nipissing University until December 2015.

His tax return for 2015 and T4 slips for the restaurant and hospital were not provided to the Insurer until two weeks before the Hearing. These show he earned a total income in 2015 of $13,496.11. The delay in providing information will be discussed below. Since February 1, 2016, he has not earned other income except for 3 shifts for a taxi company which is affiliated with his father. Mr. Lafontaine covered 3 shifts when another driver was away on vacation.

In summary, the Applicant’s representative, in its closing submissions,²⁴ states that Mr. Lafontaine left his paid employment to provide attendant care for the Applicant and he earned less in 2016 than in 2015, earning zero income after 2016. As such, he suffered an economic loss as a result of providing attendant care to the Applicant and the expense is incurred.

The Applicant accordingly submits that she is entitled to the ACB for the time period from February 1, 2016 to date.

Mr. Lafontaine also testified that in providing attendant care, he was “always there for her” and that he was on call 24/7.

The Insurer states Mr. Lafontaine produced his 2015 income tax return two weeks prior to the Hearing.²⁵ He reported T4 income from the restaurant at $5,891.11.²⁶ He also reported $7,605.00 in T4 income from another company, which he testified was a summer job doing testing of fire alarms.²⁷ Mr. Lafontaine testified that he did not return to work for that company in the summer of 2016. He testified that after he graduated from university in 2015, he was offered full-time work, which he turned down to work for the Applicant.²⁸

Mr. Michael McNeil

Mr. McNeil is an adjuster with the Insurer and was assigned this file in August 2014.

He testified the Insurer paid the ACB from the date of loss to December 2014. The ACB was stopped because the Insurer learned the service provider at that time had stopped working at the restaurant and in July 2015, the Insurer received a document that Ms. Chapin had changed employment and was now working at Sears.

The Insurer needed more financial information to determine an economic loss. He asked for financial statements from Ms. Chapin under section 33 of the Schedule to confirm income as Ms. Chapin was now working at Sears. He obtained a release from Ms. Chapin to obtain employment information from Sears.

He testified that it was not until February 2017 that he received necessary income information from Mr. Lafontaine. He did not have time to review the information before testifying.

Section 33 Requests for Information and Suspension/Payment of Benefits

Mr. McNeil testified that numerous requests were made for updated income information from the Service Providers and this was necessary to establish economic loss. Letters were sent by the Insurer in 2014 on August 28, October 7 and November 7, and in 2015 on January 15.²⁹ Counsel for the Applicant in a letter, dated July 6, 2015,³⁰ affirmed to the Insurer there was an ongoing incurred expense and that Ms. Chapin continued to provide attendant care. I note that a letter from Sears, dated June 18, 2015, was attached to the July 6, 2015 letter and it seems reasonable that some notice was provided at this time to the Insurer of the employment with Sears.

The Insurer states it paid the Applicant’s ACB at the rate of $6,000.00 per month for 2014. The Insurer maintains the Applicant failed to disclose employment information in response to its requests for supporting documentation in 2015. Moreover, it maintains Ms. Chapin did not provide further information regarding her economic loss until July 16, 2015. In that letter, the Applicant, for the first time, advised the Insurer that Ms. Chapin was working part-time at Sears, and that her economic loss arose from turning down the opportunity to work full-time.³¹

By letter, dated July 13, 2015, Mr. McNeil requested the contact information for Mr. Charles Bain, Ms. Chapin’s supervisor at Sears. In a responding letter, dated July 16, 2015, the Applicant provided the contact information for Ms. Francine Bazinet, a manager at Sears, and a letter from Ms. Bazinet, dated June 1, 2015, stating that Ms. Chapin had been offered full-time hours “over the past year.”³²

The following chart, provided by the Insurer, summarizes the status of the Insurer’s requests for information relating to Ms. Chapin’s employment:³³

Document

Date of s. 33 request

Date Produced

Signed statement

Sept. 15, Nov. 3 & 19, 2015

Never produced

2012 Income tax return/Notice of Assessment (NOA)

Sept. 15, Nov. 3, & 19, 2015

Return (dated March 23, 2013) produced Feb. 14, 2017; NOA never produced

2013 Income tax return/NOA

Sept. 15, Nov. 3, & 19, 2015

Return (dated Oct. 3, 2014), produced Feb. 14, 2017; NOA never produced

2014 Income tax return/NOA

Sept. 15, Nov. 3, & 19, 2015

Return (dated April 15, 2015) produced Feb. 14, 2017; Sears T4 provided Feb. 3, 2016, NOA provided Feb. 18, 2016, FFPA T4 produced at arbitration

2015 Income tax return/NOA

Sept. 15, Nov. 3, & 19, 2015

Return (dated Dec. 5, 2016) produced Feb. 23, 2017, NOA not produced

Authorization for Sears Employment File

Nov. 3 & 19, 2015

Never produced; authorization to contact Sears sent Feb. 18, 2016

ROE from ESM

Sept. 15, Nov. 3, & 19, 2015

Never produced

The Insurer submits that Mr. McNeil’s requests for information were reasonable and necessary to determine the Insurer’s liability to pay the ACB, and whether Ms. Chapin had sustained an economic loss.

The Insurer submits that in 2015, Ms. Chapin failed to advise the Insurer that she was working full-time at Sears. The Applicant submitted an OCF-6, dated September 8, 2015, for ACBs provided through to August 2015,³⁴ but it maintains it did not disclose the change in employment to the Insurer.

Pursuant to section 33 and 46.2 of the Schedule, and as a result of the Applicant’s and Ms. Chapin’s failure to provide the requested documentation, the Insurer outlines an additional reason relating to the denial of the ACB as of September 30, 2015 (11 business days following the September 15, 2015 request letter) to February 23, 2017.³⁵

It is the Insurer’s position that the Applicant, and Ms. Chapin on her behalf, are still in non-compliance with sections 33 and 46.2 for the failure to provide a signed statement from Ms.

Chapin with respect to her employment details, an authorization for the Sears employment file (which was provided subsequently), and information required to determine the Applicant’s entitlement to the benefit. Accordingly, the Applicant’s ACB remains suspended. The benefits as claimed until February 1, 2016 are not payable.³⁶

In the alternative, if it is accepted that the Applicant has provided sufficient information by providing the income tax returns, then the Insurer submits that the Applicant is not entitled to ACBs as of September 30, 2015 to February 23, 2017, when the Applicant finally produced Ms. Chapin’s 2015 income tax return.³⁷

Requests for Information – Mr. Brendan Lafontaine

The Insurer states that Mr. Lafontaine submitted his 2015 income tax return, dated April 22,

2016, to the Insurer on February 14, 2017. He confirmed in his testimony that he had filed his tax return on time.

Mr. Lafontaine’s 2015 income tax return revealed that he had also worked at another company but the Insurer was not advised of this income prior to Mr. Lafontaine providing the income tax return. He did not clarify until his testimony at the Hearing that he has not returned to work at the other company since he began providing attendant care to the Applicant.

The Insurer submits that it requested documentation from Mr. Lafontaine relating to his income, which was necessary to verify his alleged economic loss. The Insurer states, as Mr. McNeil has stated through his testimony, the verification of a service provider’s income is a typical procedure.

The Insurer maintains that had Mr. Lafontaine provided his 2015 income tax return and a signed statement confirming that he had not returned to any employment as a result of caring for the

Applicant, the Insurer could have confirmed the economic loss and paid the benefit, if payable.

Mr. Lafontaine has provided no explanation for the delay in submitting the tax return, or the failure to provide a signed statement.³⁸

The Insurer therefore submits that the Applicant’s ACBs, as claimed from February 2016 through February 2017, are not payable.

Quantum of Attendant Care

The Insurer refers to the decision in Fernandes and Certas Direct Insurance Company, a FSCO Appeal decision, for the position that a Form 1 does not bind an Arbitrator.³⁹ Rather, an Arbitrator must consider all evidence with respect to the Applicant’s attendant care needs and determine the reasonable and necessary quantum of monthly ACBs. In Luong and Allstate Insurance Company of Canada ⁴⁰ and Ms. M.G. and Economical Mutual Insurance Company,⁴¹ the Insurer states Arbitrators Ahlfield and Sapin, respectively, considered both the Applicant’s and the Insurer’s Form 1, as well as the expert reports and witness testimony regarding the level of care that the Applicants required and had received, and then made findings of fact as to the appropriate quantum of ACBs, effectively creating new Form 1s. Director’s Delegate Evans upheld the latter decision on Appeal.⁴²

Based upon the above noted decisions, the discussions of the assessments and reassessments, and the testimony of the Service Providers who provided the services to the Applicant, it is the Insurer’s submissions that the Applicant requires, at most, 12 hours per day of supervisory care, to assist her “when accessing the community or in complex task planning.” The Insurer submits that, as in Ms. M.G., it is not consistent with the purpose of the Form 1 to provide remote supervisory care for emotional reassurance.

The Insurer maintains further that none of the witnesses described any “changes in behaviour” in the Applicant that required emergency intervention. Although the Service Providers testified that they were available to the Applicant at any time, if she needed them, neither Service Provider tendered any evidence that the Applicant did call them in an emergency situation, or overnight.

Further, the Insurer notes that Mr. Reed concluded: “The Applicant does demonstrate the ability to respond to an emergency. While she was hesitant in verbally responding to safety scenarios, she was able to physically display a response more effectively.”⁴³

The Insurer maintains that based upon the testimony and Ms. Maurice’s report, the Applicant is independent with most of her day and only receives direct attendant care, in the form of assistance with appointments or errands, for a few hours each day. The Insurer concludes that based on the evidence at the Hearing, the Applicant only requires direct attendant care assistance for errands and transportation, and this amounts to a few hours per day.

DECISION

The onus is on the Applicant to prove that she is entitled to an ACB as sought. The Insurer resists payment of the ACB on the basis that they were not “incurred” within the meaning of section 3(7)(e) of the Schedule and allegations of non-compliance as per sections 33 and 46(2) of the Schedule, with the result that no ACBs are payable.

In Henry v. Gore,⁴⁴ the Court of Appeal held that the “economic loss” requirement is a “rough check” on attendant care costs. If an economic loss is sustained, ACBs are payable with respect to all care detailed in the Form 1 provided by the family member, subject to the maximums in section 19(3) and various other safeguards, including sections 42 and 33 of the Schedule.⁴⁵

The Applicant maintains that if economic loss can be shown at any time after the MVA, the economic loss threshold has been met for all periods after the MVA. The Applicant maintains the decision in Henry has been interpreted by Arbitrators and Judges in subsequent decisions to assert that if a single economic loss is sustained by a non-professional service provider, all ACBs listed in the Form 1 are payable.⁴⁶

The Applicant refers to the subsequent decision of Davis v. Wawanesa Mutual Insurance Company, where the court emphasized that according to the Ontario Court of Appeal in Henry, the Schedule “did not intend to limit the ACB to the actual loss incurred.” The court emphasized that an economic loss was sufficient for an ACB to be payable for all care in the Form 1. The Applicant maintains the decision in Davis affirms that economic loss is a threshold issue under the Schedule and once proven by a non-professional service provider, it entitles the Applicant to ACBs in the Form 1. If a non-professional service provider suffers a single instance of economic loss, all ACBs in the Form 1 are payable to the insured person.⁴⁷ The Applicant submits that sufficient documentation and information has been provided to the Insurer which ought to have caused the Insurer to reconsider its refusal to pay ACBs. With respect to the period of January 1, 2015 to February 1, 2016, the Applicant states that she has provided the Insurer with sufficient information to confirm that her attendant care provider, Ms. Chapin, has sustained an economic loss. This includes tax returns and T4s for 2012-2015.

The Insurer, on the other hand, maintains it is not sufficient to show an economic loss at a specific point in time during the entire passage of time from one person. The Insurer refers to Keeping and Aviva Canada Inc., where Arbitrator Mongeon held that an economic loss must be demonstrated in support of each claim for attendant care expenses:⁴⁸

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.

The Insurer maintains that proving economic loss for one time is not a reasonable interpretation that would meet the “rough check” or comply with the language of section 3(7)(e) of the Schedule. The Insurer asserts that the law on economic loss, as applicable to accidents between September 1, 2010 and January 31, 2014, is as follows:⁴⁹

If an economic loss is demonstrated, then the entire amount of the Form 1 is payable (Henry), but an economic loss must be demonstrated for every month that benefits are claimed (Keeping), and the economic loss must be quantifiable and proven by the service provider (EB, Matthews).⁵⁰

The Insurer submits, and I concur, that it is a reasonable interpretation of the Schedule, consistent with the Henry and Keeping interpretation, to require a regular showing of economic loss at each month that an ACB is sought for each friend or family member who is alleged to have provided such services.⁵¹

I am satisfied that economic loss has not been established by Ms. Chapin on an ongoing basis.

The evidence establishes that from July 2015, when she started working at Sears full-time, Ms.

Chapin was providing attendant care to the Applicant. I find first that she could not have provided the attendant care services as claimed in 2015 and certainly not on a 24-hour basis as is claimed by the Applicant, even allowing for some leeway with the employer granting Ms. Chapin leave when necessary. I also do not accept that but for working for the Applicant and even when working full-time at Sears in her career position, Ms. Chapin suffered an economic loss by not taking on other part-time or other work. Moreover, there was no evidence that 24-hour emergency care was actually ever provided or needed. Also, important to note is that Ms. Chapin’s income in 2015 increased compared to the year 2014 and the income documents reveal her income in 2014 and 2015 was even greater than the amount earned in 2012.

As to the time period when she initially did not accept Sears’ offer of full-time employment, I find there is no clear evidence of when the initial offer of full-time employment was made, nor when it was accepted. Based upon the evidence presented in oral testimony and documentation, and in particular, Ms. Chapin’s income information for 2014 and 2015, I find her income in 2015 actually increased when compared to her 2014 income. For all of these reasons, Ms. Chapin has not demonstrated an economic loss in 2015 and no ACBs are payable from January 1, 2015 to January 31, 2016. I also concur with the Insurer that as Ms. Chapin began working at Sears in July 2015, the economic loss, if any, ended by July 2015.

Also, I accept that the attendant care provided for and needed by the Applicant is not for 24 hours but 12 hours a day. Based on the testimony and Form 1s submitted, I concur that the proper quantum, even if economic loss were established, is the amount of $3,793.46. Based upon the evidence of the Applicant, the Service Providers, and Ms. Ritchie, I find the Applicant requires direct attendant care assistance for errands and transportation, and not for emergency care 24 hours a day. The Service Providers did testify they were available but the evidence has established the service was never required.

I accept the Insurer’s position of non-compliance with Section 33 of the Schedule by Ms. Chapin. This is problematic to the Applicant’s claim for attendant care provided by Ms. Chapin. The

Applicant maintains that even if attendant care must be provided on an ongoing basis, the

Applicant did indeed provide the Insurer with all required information, namely the income tax returns for Ms. Chapin as described previously. I find that the evidence established that by July 6,

2015 and July 16, 2015, the Applicant did not provide timely and full disclosure of income information to the Insurer to assess economic loss.

I find the Applicant failed to provide information and documentation that was reasonably requested of her pursuant to s. 33 and 46.2 of the Schedule. Accordingly, ACBs are not payable based on non-compliance with section 33 for the period January 1, 2015 to January 31, 2016.

With respect to the claim for ACBs from February 1, 2016 to date and ongoing, I find the oral evidence and income documents provided to the Insurer by Mr. Lafontaine and the Applicant demonstrate that Mr. Lafontaine has sustained an economic loss. Mr. Lafontaine testified that he did not return to work for a company in the summer of 2016. He testified that after he graduated from university in 2015, he was offered full-time work, which he turned down to work for the Applicant.

I find the evidence of Mr. Lafontaine establishes that he was employed prior to becoming an attendant care provider and he lost income as a result of taking on the role of the Applicant’s attendant care provider.

However, Mr. Lafontaine did not produce his 2015 income tax return until two weeks prior to the Hearing. He failed to provide his income documentation and other documents to support the claim for economic loss as required under s. 33. I concur with the Insurer that no evidence was provided outlining a reason for the delay.

The Insurer maintains that had Mr. Lafontaine provided his 2015 income tax return and a signed statement confirming that he had not returned to any employment as a result of caring for the

Applicant, the Insurer could have confirmed the economic loss and paid the benefit, if payable.

Mr. Lafontaine has provided no explanation for the delay in submitting the tax return, or the failure to provide a signed statement. Accordingly, I concur with the Insurer that based on non-compliance, no ACBs are payable for the period of February 1, 2016 to February 2017 pursuant to sections 33 and 46.2 of the Schedule.

SPECIAL AWARD

In light of my decision outlined above, no Special Award is payable.

INTEREST

The Insurer maintains that pursuant to sections 33 and 46.2 of the Schedule, as the benefits are not payable during any of the time periods in dispute, they are not overdue, and no interest is owing thereon. I concur.

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.

April 28, 2017

Thérèse Reilly

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 126

FSCO A16-001578

BETWEEN:

ANGELA MASSICOTTE

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

1. The Applicant is not entitled to receive an Attendant Care Benefit from January 1, 2015 to January 31, 2016.

2. The Applicant is not entitled to receive an Attendant Care Benefit from February 1, 2016 to February 28, 2017.

3. The Applicant is not entitled to interest.

4. The Applicant is not entitled to a Special Award.

5. 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.

April 28, 2017

Thérèse Reilly

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Applicant Closing Submissions, March 30, 2017, paragraphs 1, 2 & 7.
3. 3Insurer Closing Submissions, March 30, 2017, paragraphs 5 & 7.
4. 4Form 1 by Claudia Maurice, dated April 16, 2013, Tab 7, Joint Document Brief.
5. 5In-Home Assessment with Assessment of Attendant Care Needs – Form 1 completed by Kevin Reed, OT, dated May 7, 2013. Introduced at the Hearing as a separate document and not included as part of the Joint Document Brief.
6. 6Attendant Care Assessment by Claudia Maurice, dated May 9, 2015, Tab 8, Joint Document Brief.
7. 7Attendant Care Assessment by Kevin Reed, dated July 30, 2015, Tab 9, Joint Document Brief.
8. 8Form 1 completed by Kevin Reed, OT, dated July 30, 2015, Joint Document Brief, Tab 9, page 20.
9. 9Supplementary Arbitration Brief of the Insurer, dated April 22, 2015, Tab 1, page 11.
10. 10Closing Submissions of the Insurer, paragraph 90.
11. 11Id. paragraphs 91 &92.
12. 12Id. paragraph 92.
13. 13See income information documents at Tabs 55 to 62, Joint Document Brief. Tab 55 is the 2012 T4A; Tab 56 is the T1 General for 2013.;Tab 57 is a summary of income for 2013; Tab 58 is the T1 General for 2014; Tab 61 is the Notice of Assessment for 2014; and Tab 62 is the T1 General for 2015 showing income from Sears of $22,317.00.
14. 14Id. Tab 58.
15. 15Letters from employer, Sears Canada, dated June 1 and June 18, 2015, Joint Document Brief, Tab 51 & 52.
16. 16Applicant Closing Submissions, paragraph 53.
17. 17Id. paragraphs 56 to 58.
18. 18Id.
19. 19Id. paragraph 58 (i).
20. 20Insurer Closing Submissions, paragraph 83.
21. 21Id. paragraphs 91, 92 & 94.
22. 22Id. paragraph 93.
23. 23Joint Document Brief, Tab 53.
24. 24Applicant Closing Submissions, paragraphs 68 & 69.
25. 25Letter enclosing tax returns, dated February 14, 2017, Joint Document Brief, Tab 48.
26. 26Joint Document Brief, Tab 66. Insurer Closing Submissions, paragraph 97.
27. 27Id.
28. 28Id.
29. 29Insurer Closing Submissions, paragraph 104.
30. 30Joint Document Brief, Tab 20.
31. 31Letter from Applicant’s counsel to Insurer, dated July 6, 2015, Joint Document Brief, Tab 20.
32. 32Letter from Applicant counsel to Insurer ,dated July 16, 2015, Joint Document Brief, Tab 22.
33. 33Insurer Closing Submissions, paragraph 117.
34. 34Letter from Applicant’s counsel to Insurer, dated September 8, 2015, Joint Document Brief, Tab 25.
35. 35Insurer Closing Submissions, paragraph 124.
36. 36Id, paragraph 125.
37. 37Id. Paragraph 126.
38. 38Id. paragraphs 130 to 133.
39. 39Fernandes and Certas Direct Insurance Company, FSCO Appeal P06-00030, February 14, 2008, Director’s Delegate Blackman, p. 11.
40. 40Luong and Allstate Insurance Company of Canada, FSCO A12-005783, March 31, 2014, Arbitrator Ahlfield, p. 17.
41. 41Ms. M.G. and Economical Mutual Insurance Company, FSCO A09-002443, November 23, 2012, Arbitrator Sapin.
42. 42Economical Mutual Insurance Company and Ms. M.G., FSCO Appeal P13-00001, July 21, 2014, Director’s Delegate Evans.
43. 43Attendant Care Assessment by Kevin Reed, dated July 30, 2015, Joint Document Brief, Tab 9, p. 20.
44. 44Henry v. Gore, 2013 ONCA 480, paragraph 35.
45. 45Id. paragraph 36.
46. 46See Davis v. Wawanesa Mutual Insurance Company, 2015 ONSC 6624; Deol and Gore Mutual Insurance Company, FSCO A13-003801, September 3, 2013; Toronto Transit Commission Insurance Company Limited and The Estate of Reuben Marcus, FSCO Appeal P14-00005, September 19, 2014.
47. 47Deol and Gore Mutual Insurance Company, FSCO A13-003801, September 3, 2013.
48. 48Keeping and Aviva Canada Inc., FSCO A14-003770, October 31, 2016, Arbitrator Mongeon, p. 13.
49. 49Insurer Closing Submissions, paragraph 82.
50. 50Id. paragraph 15. Economical Mutual Insurance Company and Ms. M.G., FSCO Appeal P13-00001, September 29, 2016; Matthews and Dumfries Mutual Insurance Company, FSCO A14-001824, July 21, 2014.
51. 51Keeping and Aviva Canada Inc., FSCO A14-003770, October 31, 2016, Arbitrator Mongeon, p. 13.