Tribunal File Number: 17-002592/AABS
Case Name: 17-002592 v CUMIS General Insurance
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
Applicant
and
CUMIS General Insurance
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES:
Counsel for the applicant: William A.G. Simpson
Counsel for the respondent: Peter A.B. Durant
HEARD in Writing: March 5, 2018
OVERVIEW
1[The Applicant] was injured in an automobile accident on October 10, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for benefits from the respondent, and then applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.
3The parties filed an agreed statement of facts, which include:
i. The applicant is a minor. She was catastrophically (CAT) impaired as a result of the accident.
ii. The applicant requires 24-hour daily attendant care services (ACS) and accessible housing suitable for a person confined to a wheelchair.
iii. The applicant’s most recent Occupational Therapy (OT) Progress Report confirmed that she continues to require vigilant, consistent and intensive care with supervisory and physical assistance needs.
iv. A Home Accessibility Report was completed on February 5, 2015 and it identified the applicant’s current home as the most suitable for her and her family, for a number of agreed-upon reasons.
v. The applicant’s mother was also CAT impaired as a result of the accident. She cannot provide ACS to the applicant.
vi. The applicant’s father lives in the home to provide attendant care support to the applicant. The applicant’s parents no longer have a marital relationship.
vii. Prior to the accident, the applicant and her mother lived with the mother’s fiancé, ML, who paid for their rent. ML died as a result of the accident.
4The parties agree on the cost of rent and average monthly utilities for the applicant’s home. The applicant’s current home is described as a three-bedroom bungalow with a basement. Her previous home was a two-bedroom apartment.
5The parties also agree that:
i. Despite best efforts, the amount of monthly rent paid for either of the previous apartments rented by the applicant’s parents is unknown.
ii. The Ontario Ministry of Housing has determined that the average market rent, for the years 2016 and 2017, in the applicant’s community for a 2-bedroom apartment was $965.00 per month. It is unknown if this includes utilities.
iii. The Canada Mortgage and Housing Corporation (CMHC) has determined that the average rent, for the year 2015, in the applicant’s community, Ontario, for a private 2-bedroom apartment was $912.00 per month. It is unknown if this includes utilities.
DISPUTED BENEFITS
6The issues before me are:
What is the monthly amount of the rehabilitation benefit to which the applicant is entitled from February 1, 2015 to April 1, 2015 and from May 1, 2015 to date and ongoing for the cost of rental housing?
Is the applicant entitled to interest on any overdue payment of benefits?
FINDINGS
7The applicant is entitled to a rehabilitation benefit in the amounts determined by subtracting the average rent for a two bedroom apartment in her community from the actual rent of her current home and then adding 50% of the actual expenses for utilities in her current home.
(Rent for Current House - Average Monthly Rent 2 Bedroom Apt.)
- 50% of monthly utilities
_____________________________________
= Monthly Benefit Payable
8The applicant is entitled to interest on overdue benefit payments at the prescribed rate.
REASONS
9The parties agree that the sole issue to be determined in this matter is what portion of the rental cost of the home and utilities the respondent is required to pay pursuant to the Schedule - 2010, 0. Reg. 34/10, s 16, as a rehabilitation benefit.
10Section 16 of the Schedule defines the bases for