Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 16-001348/AABS
Case Name: 16-001348 v. The Guarantee Company of North America
Written Submissions By:
For the Applicant: Michael Wade, Counsel
For the Respondent: Hermina Nuric, Counsel
Overview
On March 15, 2017, the Licence Appeal Tribunal (the “Tribunal” or “LAT”) issued its final decision in this matter originating under the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 (the “Schedule”).1 The Tribunal determined five issues at the hearing. Only one of these is the focus of this request for reconsideration: the extent to which the applicant is entitled to an attendant care benefit (“ACB”).
Following the hearing, the Tribunal determined that the applicant was entitled to an ACB in the amount of $666.23 per month. Nevertheless, the Tribunal held that the applicant failed to prove that he actually incurred any expense related to the benefit between April 2, 2016 and the hearing date of December 19, 2016, and thus held that no ACB was payable for that period. Critically, however, the Tribunal was silent on whether the applicant was entitled to ACBs on an ongoing basis provided he does incur any related expense. As explained below, this oversight was an error. Accordingly, I grant this reconsideration and vary the Tribunal’s order.
Facts
The applicant, P.K., was injured in a motor vehicle accident on July 12, 2004. As a result of the accident, the respondent, The Guarantee Company of North America (“Guarantee”), determined in July 2015 that P.K. suffered a catastrophic impairment.
P.K. sought a number of benefits under the Schedule, including an ACB, from Guarantee. This eventually gave rise to a dispute between the parties, following which P.K. applied to the Tribunal.
As it does in all applications arising under the Schedule, the Tribunal held a case conference in this matter to discuss, among other things, settlement and hearing procedure. That case conference was held on October 17, 2016. After the case conference, the Tribunal issued an order on November 18, 2016. That order scheduled the application’s hearing for December 16, 2016, along with the parties’ deadlines to serve and file their written submissions. It also outlined five issues that the parties identified and agreed would be argued as part of the application’s hearing. The first of these issues was the following:
Is the Applicant entitled to attendant care benefits in the amount of $1,117.74 per month for the period April 2, 2016 to-date and ongoing? [emphasis added]
P.K. served and filed his evidence but, at least initially, did not serve or file any written submissions.
The Guarantee then served and filed its evidence and written submissions. These submissions did not reference verbatim the issues framed in the Tribunal’s November 18, 2016 order. However, in addressing P.K.’s claim for ACBs, Guarantee argued that P.K. could not prove that he required and received the claimed attendant care needs “since April 2, 2016.”2 In this sense, it appears that Guarantee acknowledged the ongoing nature of P.K.’s claim.
P.K. filed reply submissions. These submissions reiterated that the first issue in dispute was the same as the first issue stated in the Tribunal’s November 18, 2016 order: whether P.K. was entitled to an ACB in the amount of $1,117.74 per month for the period April 2, 2016 to-date and ongoing?3
The Tribunal then determined the matter. In its decision, the Tribunal determined that P.K. was entitled to an ACB in the amount of $666.23 per month. However, the Tribunal agreed with Guarantee that P.K. failed to prove that he actually incurred any related expense between April 2, 2016 and the date of the hearing, December 19, 2016. For that reason, the Tribunal held that no ACB was payable for that period. The order was silent on P.K.’s ongoing entitlement to an ACB – that is, whether Guarantee was obligated to provide P.K. with the same ACB provided he proved that he incurred the underlying expense.
Following the release of the Tribunal’s decision, P.K. highlighted that the Tribunal’s order failed to address his entitlement to ACBs on an ongoing basis. He therefore asked the Tribunal to clarify the order. This gave rise to a further dispute between the parties over the order’s scope and the propriety of the Tribunal adding to the order’s content.
After reviewing the parties’ correspondence, I decided on my own motion, and pursuant to Rule 18.1 of the LAT Rules of Practice and Procedure (the “Rules”), to reconsider the Tribunal’s decision. The Tribunal’s Head of Legal Services notified the parties of my decision, specifically referencing P.K.’s request to amend the order, and invited them to make submissions.
On March 27, 2017, P.K. made a number of submissions on whether the order should have specified that he was entitled to ACBs “to date and ongoing”, along with a number of other submissions arguing the same point and, additionally, why the Tribunal’s order should be further revised in his favour.
On April 10, 2017, Guarantee provided responding submissions. Guarantee argues that a reconsideration should not be granted for a number of reasons discussed below.
After reviewing the Tribunal’s decision and the parties’ submissions, I have decided to vary the Tribunal’s order.
Discussion and Reasons
The Tribunal’s order should be extended
The central focus of this reconsideration concerns P.K.’s entitlement to ACBs. As explained above, the parties agreed that one of the issues that they would argue and that the Tribunal would determine was whether P.K. was entitled to an ACB “to date and ongoing.” That issue was outlined in the Tribunal’s case conference order of November 18, 2016. It was also explicitly repeated in P.K.’s reply submissions and, in my view, impliedly recognized again in Guarantee’s responding submissions.
Unfortunately, in its decision and order of March 15, 2017, the Tribunal did not answer that question in its entirety. Again, the Tribunal found that P.K. was not entitled to an ACB from April 2, 2016 to December 19, 2016, as there was no evidence that P.K. actually incurred the benefit. However, the Tribunal made no comment on whether P.K. was entitled to receive the same ACB in the future assuming that he did prove to Guarantee that he incurred the benefit. Indeed, in framing the issue throughout the decision, the Tribunal repeatedly asked itself whether P.K. was entitled to the ACB from April 2, 2016 to December 19, 2016.
P.K. submits that this was an error. I agree. In not determining the issue that was actually before it – i.e., the issue as framed in the case conference order and that the parties argued – the Tribunal failed to properly exercise its jurisdiction. As such, this was an error of law that, under Rule 18.2(b) of the Tribunal’s Rules, allows me to reconsider this decision.
Had the Tribunal turned its mind to the proper question, I am confident that it would have ordered the ACB payable on an ongoing basis. This is clear from the parties’ agreement that P.K. experiences several challenges in his daily living,4 along with the Tribunal’s factual findings that his attendant care needs are a result of the accident,5 and that it is both reasonable and necessary for P.K. to receive assistance with feeding, hygiene, exercise, and medication intake.6 These conclusions apply equally to any claim for the same ACB that P.K. may make on an ongoing basis. The Tribunal’s finding that P.K. was not entitled to an ACB from April 2, 2016 to December 19, 2016 was based on P.K.’s failure to prove that he incurred this benefit. Given the Tribunal’s factual findings, I have no hesitation in concluding that the Tribunal would have ordered that P.K. receive an ACB of $666.23 on an ongoing basis, assuming that he actually incurs this benefit.
Guarantee argues that this reconsideration should not be granted because the parties were not provided with proper notice or an opportunity to make submissions, a failure amounting to a violation of the rules of natural justice and procedural fairness. I disagree. The parties were provided with adequate notice of my decision to reconsider the Tribunal’s order. As mentioned above, the Tribunal’s Head of Legal Services notified the parties of my decision, specifically referencing P.K.’s request to amend the order, and invited them to make submissions. Both parties provided argument and, indeed, Guarantee’s deadline to do so was extended in order to accommodate its counsel’s travel schedule. Guarantee was aware of the central issue concerning the scope of the Tribunal’s order, had disputed this issue with P.K. before this reconsideration, had the benefit of the Tribunal’s correspondence and P.K.’s submissions concerning this reconsideration, and responded in kind. I see no procedural unfairness.
The quantum of ACBs should not be increased
P.K. also took the opportunity presented by this reconsideration to argue that the quantum of his ACB should be increased by $451.51 per month. His argument is based on the Tribunal’s finding that he already receives emotional support from his rehabilitation support worker, Mr. Vandenberg, to cope with his functional changes and, on that basis, the Tribunal’s refusal to include an amount in the ACB to account for P.K.’s “comfort, safety and security” in his hygiene practices.7 P.K. argues that, in calculating his ACB, the Tribunal should not have considered the support he receives from Mr. Vandenberg. Alternatively, he argues that, since the Tribunal recognized that he receives Mr. Vandenberg’s support, the ACB should reflect this need.
The fact that P.K. receives emotional support from Mr. Vandenberg was a relevant fact that the Tribunal was entitled to consider. This is especially true given, as the parties clarified, Guarantee already pays for Mr. Vandenberg’s services as part of a medical benefit it provides to P.K.8 These services, therefore, should not also be included in P.K.’s ACB. I understand that the time Mr. Vandenberg spends providing these services might otherwise be spent assisting P.K. in other areas of his life for which Guarantee already provides P.K. a medical benefit to assist. However, the fact remains: Guarantee pays for Mr. Vandenberg’s time, and P.K. receives Mr. Vandenberg’s assistance to help him cope with his functional changes. P.K. should not receive a second benefit to cover the same services that he already receives.
The Tribunal applied the correct law
P.K. also asserts that the Tribunal did not consider the “correct rules” concerning when a benefit is “incurred” for the purposes of the Schedule. He appears to suggest that the Tribunal incorrectly applied the rules in s. 3(7)(e) and 3(8) of the current version of the Schedule to his claim. Instead, he asserts, a benefit is incurred for the purposes of the older, applicable version of the Schedule “even if there was merely a promise to pay and the insured had not actually paid for the services.”
As P.K.’s accident occurred on July 12, 2004, the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996 applies. That is the version of the Schedule that the Tribunal applied. The Tribunal’s decision makes clear that it applied “section 16 of the Schedule”9 – the section under the older, applicable version of the Schedule dealing with ACBs. Moreover, the Tribunal did not apply s. 3(7)(e) and 3(8) of the current version of the Schedule in determining whether the benefit at issue had been “incurred.” Rather, the Tribunal adopted the approach outlined in McKnight v. Guarantee Company of North America, FSCO A02-00299, a decision under the older, applicable version of the Schedule. That jurisprudence provides that, while an expense does not necessarily need to be paid in order to be “incurred,” the service at issue does need to have been provided. In this case, there was no dispute that P.K. was neither receiving nor paying for attendant care services between April 2, 2016 and December 19, 2016. Thus, I see no error in the Tribunal’s approach.
The Tribunal is not barred from reconsidering the decision at issue
Lastly, Guarantee suggests that this reconsideration is precluded as a result of the doctrine of functus officio. Based on this doctrine, Guarantee argues that the Tribunal is unable to revisit its decision.
This argument misunderstands the relevant facts. After delivering her final decision in this matter, the adjudicator who rendered the Tribunal’s decision would, general speaking, be functus officio. However, following a decision by the Tribunal, a party may request a reconsideration. That process is codified in Rule 18 of the Tribunal’s Rules, which, in turn, are authorized by s. 6 of the Licence Appeal Tribunal Act, 199910 and s. 25 of the Statutory Powers Procedures Act.11 This authorization gives me jurisdiction to reconsider the Tribunal’s decisions on the limited grounds enumerated therein.
Conclusion and Order
- For these reasons, I therefore vary the Tribunal’s order of March 15, 2017 by adding to the first bullet to read as follows:
- The Applicant is not entitled to attendant care benefits in the amount of $666.23 per month for the period claimed from April 2, 2016 to December 19, 2016, as there is no evidence that the benefits have been incurred. However, the Applicant is entitled to attendant care benefits on an ongoing basis provided that he incurs such benefits.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: June 20, 2017
Footnotes
- O. Reg. 403/96.
- See para. 24 of the Responding Submissions of the Insurer, dated November 21, 2016.
- See p. 1 of the Applicant’s Reply, dated December 5, 2016.
- See para. 11 of the Tribunal’s Analysis.
- See paras. 13 and 15 of the Tribunal’s Analysis.
- See paras. 23-29 of the Tribunal’s Analysis.
- See paras. 27-28 of the Tribunal’s Analysis.
- In her correspondence of January 27, 2017, Guarantee’s counsel stated that Guarantee pays this benefit as a medical benefit. In his correspondence of January 30, 2017, P.K.’s counsel stated that these services are being “properly paid under the medical and rehabilitation benefits category.” I have used the parties’ common ground.
- See paras. 34-37 of the Tribunal’s Analysis.
- S.O. 1999, c. 12, Sch. G.
- R.S.O. 1990, c. S.22.```