Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Jeffrey Shapiro, Vice-Chair
File: 17-006866/AABS
Case Name: S.K. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Julia Abd Elseed, Counsel
For the Respondent: Michal Baura, Counsel
OVERVIEW
Aviva seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) June 29, 2018 Order issued by Vice Chair Susan Mather. The issue before the Tribunal was whether the applicant, S.K., was entitled under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”) to payment from Aviva, S.K.’s insurer, for attendant care benefits from November 1, 2015 to date and ongoing, with interest and an award under Regulation 664, arising out of a motor vehicle accident. The Tribunal found that S.K. was entitled to the benefits from November 1, 2015 to December 31, 2016, determined the amount, and granted interest, but denied an award under Regulation 664.
Aviva seeks to vary the Tribunal order, by either finding S.K. is not entitled to any amount of an attendant care benefit or by ordering a rehearing before a different adjudicator on the question of whether S.K. has incurred the attendant care benefit. Aviva submits “the adjudicator made a significant error of law by failing to apply and/or incorrectly applying the Attendant Care Hourly Rate Guideline (October 2015), Superintendent’s Guideline No. 02/15” (the “Guideline”). In effect, Aviva argues that even if the Tribunal was correct to find that S.K. properly incurred the attendant care, the quantum of the benefit ordered is not legally correct.
Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal. For the reasons below, I grant this request for reconsideration, in part, and vary the Tribunal’s order, and remand this matter for further proceedings as below.
RESULT
- Aviva’s requests for reconsideration is granted, in part, and the Tribunal’s Order is varied, as follows:
Paragraph [46]1. of the Tribunal’s Order is amended to read: “The respondent shall pay attendant care benefits to the applicant for the time period of November 1, 2015 to December 31, 2016, for the number of hours listed in the invoices and time sheets submitted.”
The Tribunal shall schedule a case conference to address the proper quantum of the attendant care benefit based on the hours previously found incurred by the Tribunal, and if the parties cannot agree, then a hearing shall be scheduled limited to the determining the proper quantum, consistent with the analysis below. Subject to availability, the original adjudicator shall preside at the hearing.
BACKGROUND
S.K. was injured in a motor vehicle accident on October 29, 2015 and sought statutory accident benefits from Aviva, including an attendant care benefit which Aviva denied. S.K. filed an application with the Tribunal appealing the denial.
During the January 30, 2018 case conference, Aviva conceded S.K.’s entitlement to the benefit, only disputing whether the benefit was “incurred”. In practical terms, under the Schedule’s definition in section 3(7)(e), S.K. had to establish she received the services, by a professional caregiver, and is legally obligated to pay for them.
A hearing was held in writing. The adjudicator found that the services were “incurred” as listed in the invoices and timesheets (collectively “invoices”). Although the total hours of services incurred per month is not explicitly stated in the order, from the chart in the order’s appendix, it clear the adjudicator accepted that between 20 and 38 hours of attendant care services were incurred each month. The adjudicator found that the services were payable at the $25/hour rate invoiced, found the amount due per month, and ordered a total amount of $10,307.56 be paid, plus interest. The interest calculations were left to the parties.
POSITIONS OF THE PARTIES
Aviva submits that even if the amounts were incurred for the hours listed in the invoices, the Tribunal erred in the quantum awarded1, for two overlapping reasons. First, the Tribunal incorrectly awarded benefits at $25/hour, when the Guideline and approved Form-1 (which conforms to the Guideline) mandates set rates that are lower. Second, because S.K.’s invoices do not itemize the services provided, the services cannot be properly allocated to the different tiers under the Form 1. Thus, Aviva concludes that it was an error for the Tribunal to award any attendant care benefit at all.
S.K. does not directly dispute that the Tribunal’s award did not properly follow the Guideline but argues that the decision should be affirmed or, alternatively, a hearing ordered only on the quantum based on “the hours already accepted as fact as being provided…” S.K. notes Aviva effectively admits that “some amount is due, [Aviva] may at best dispute the exact amount payable, not the entitlement altogether.”2 S.K. points out that Aviva’s sole focus is the quantum but presents no reason to vary the Tribunal’s findings that S.K. incurred the services.3
DECISION AND REASONS
The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. The relevant Rule 18.2 criteria Aviva argues is that “the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision,” by misapplying the evidence, the Schedule, and the Guideline issued by FSCO in relation to the Schedule.
In 16-002782/AABS v Aviva Canada Insurance, 2018 CanLII 39370 (ON LAT) at para. 17, Associate Chair J. Batty explained that Rule 18 affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. Thus, the reconsideration process serves a curative role, including permitting the Tribunal to correct a final decision made in error.
Did the Tribunal err in the quantum?
Aviva provides little basis to dispute the Tribunal’s finding that the services were incurred for the hours submitted, nor do I find a basis. Similarly, although S.K. does not explicitly agree, S.K. does not argue against the Form 1 amounts and the Guideline being binding. Thus, it appears the Tribunal erred, and the question then is at what hourly rate should the services performed be paid?
As a starting point, section 19 of the Schedule provides that attendant care benefits shall pay for certain expenses provided by an aide, attendant or a long-term care facility or a chronic care hospital as a result of an accident. Section 19(2) provides that amount of the benefit is determined in accordance with an Assessment of Attendant Care Needs (commonly referred to as “Form 1”), which “is calculated by…multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care…” (emphasis added)
Section 42 provides that the Form 1 shall be in the form approved by the Chief Executive Officer4, and the Form 1 shall be in accordance with a Guideline for this section. In turn, the Guideline sets maximum hourly rates for three levels of services - $13.19 per hour for routine personal care, $11.25 per hour for basic supervisory functions, and $19.35 per hour complex health/care and hygiene functions.
In this case, the Form 1 authorized a total of 68.09 hours of care per month, broken down by hours allocated to the various levels of service and rate, for a maximum of $858.14 per month. The Tribunal listed the Form 1 assessment, as follows:
| Level | Attendant Care | Hours | Rate/hour | Total |
|---|---|---|---|---|
| Level 1 | Personal Care | 41.21 | $13.19 | $543.54 |
| Level 2 | Supervisory Functions | 22.58 | $11.25 | $231.39 |
| Level 3 | Complex and Hygiene | 4.3 | $19.35 | $83.21 |
| 68.09 | $858.14 |
Misapplying the Form 1
S.K.’s invoices, however, list between 20 and 38 hours worked for any given month, less than 68.09 hours in the Form 1, and the hours listed are not broken down into each of the levels. The invoices with the timesheets, do list services provided, but again without a precise allocation.
Rather than trying to allocate invoices to correspond to the three levels of care in the Form 1 – an approach taken by Vice Chair L. Marzinotto in 16-001063. v. Belair Direct Insurance Company5 – the adjudicator accepted the total invoiced amount and for any month exceeding the total monthly Form 1 amount, used the Form 1 as a cap.
Aviva argues, that by doing so, the Tribunal ignored the binding hourly rates of the Form 1 and Guideline, and instead improperly granted benefits at $25 per hour. I agree. For example, in November 2015, when the applicant only incurred 38 hours of care – far lower than the 68.09 hours in the Form 1 – the Tribunal agreed that the 38 hours should be paid at $25 per hour for $950, but then capped the $950 by the $858.14 rate. The Tribunal did not use the lower rates of the Form 1.
In effect, the Tribunal viewed the Form 1 breakdown and rates as a calculation tool to establish the total amount of the Form 1, which total amount could then be used and allocated as the applicant sees fit – even at a higher hourly rate. However, that approach is not consistent with the Guideline or Form 1 which specify the hourly rate. Aviva cites to the following language of the Guideline:
Maximum Fees
Automobile insurers are not liable to pay for expenses related to attendant care costs rendered to an insured person that exceed the maximum hourly rates set out below. (Underlined added)
I agree with Aviva that the word “rendered” means that the rates are not just a calculation tool but are the actual rates an insurer is required to pay for services actually rendered – i.e. incurred. I also find that the references in sections 19 and 42 of the Schedule to the Guideline also render the same result.
I note that the Guideline permits but does not require an insurer to pay a higher rate. Caselaw cited by Aviva also acknowledges that the Guideline rates, though mandatory, are at times below the legal minimum wage. For that reason, I understand that out of practicality insureds and insurers will often agree to proceed as the Tribunal incorrectly held – i.e. by allowing an insured to invoice the total amount of a Form 1 as he/she sees fit. However, there is no evidence of an agreement to proceed that way in this case.
What is the correct quantum?
While the Tribunal erred, I do not agree with Aviva’s conclusion that S.K. is not entitled to any amount. To the contrary, I agree with S.K.’s submission that she established in the hearing that she incurred between 38 and 20 hours of care each month, from November 2015 to December 2016, and is entitled to some reimbursement. The question is what amount.
In this case, there are several possible methods to calculate the amount due, given that the invoices reflect that all the types of services have been performed, but without an exact allocation, and for less than all of the total hours. Given there are several methods, and there may be other methods, the parties should be given the opportunity to make submissions, and thus I remand this matter to the hearing adjudicator to decide that point.
To aid that process, I will mention three possible methods to calculate the quantum of the ACB to which S.K. is entitled. First, the Tribunal could attempt an actual allocation. Second, the Tribunal might consider applying a ratio of the Form 1’s allocated hours and rates to the hours preformed. Third, at a minimum, the Tribunal could conclude that although the applicant has established the hours incurred, she failed in her burden to establish the allocation, and thus the order should allocate to the lowest Form 1 rates first. This method produces a minimal award of $5,033.93, as follows:
| Month | ACB Claimed | ACB per award | Hours incurred | First 22.58 hours at Level 2 rate ($11.25) | Remaining hours at Level 1 rate ($13.19) |
|---|---|---|---|---|---|
| November 2015 | $950.00 | $858.14 | 38 | $254.03 | 15.42 hrs = $203.39 |
| December 2015 | $950.00 | $858.14 | 38 | $254.03 | 15.42 hrs = $203.39 |
| January 2016 | $950.00 | $858.14 | 38 | $254.03 | 15.42 hrs = $203.39 |
| February 2016 | $950.00 | $858.14 | 38 | $254.03 | 15.42 hrs = $203.39 |
| March 2016 | $800.00 | $800.00 | 32 | $254.03 | 9.42 hrs = $124.25 |
| April 2016 | $800.00 | $725.00 | 29 | $254.03 | 6.42 hrs = $84.68 |
| May 2016 | $800.00 | $800.00 | 32 | $254.03 | 9.42 hrs = $124.25 |
| June 2016 | $800.00 | $800.00 | 32 | $254.03 | 9.42 hrs = $124.25 |
| July 2016 | $750.00 | $750.00 | 30 | $254.03 | 7.42 hrs = $97.87 |
| August 2016 | $750.00 | $750.00 | 30 | $254.03 | 7.42 hrs = $97.87 |
| September 2016 | $750.00 | $750.00 | 30 | $254.03 | 7.42 hrs = $97.87 |
| October 2016 | $500.00 | $500.00 | 20 | $225.00 | 0 hrs |
| November 2016 | $500.00 | $500.00 | 20 | $225.00 | 0 hrs |
| December 2016 | $500.00 | $500.00 | 20 | $225.00 | 0 hrs |
| TOTAL | $10,750.00 | $10,307.56 | $3,469.33 | $1,564.60 (=$5,033.93 total) |
- Although Aviva requested a hearing before a different adjudicator, I decline that request for several reasons. The adjudicator’s findings on factual issues remain undisturbed, and the reconsideration is granted because of the adjudicator’s misinterpretation of the Guideline, which is a point of law. Having corrected the erroneous interpretation through this reconsideration, the hearing adjudicator remains familiar with the factual background, and thus is well situated to address the proper calculations in a manner that is fair, efficient, proportional, and provides a timely resolution of the issue.
CONCLUSION
- While the Tribunal’s finding that the attendant care was incurred for the hours listed in the invoices remains in effect, the Tribunal erred in calculating the quantum ordered. The incurred hours must be paid accordance with the mandatory Guideline rates and Form 1. Thus, for the reasons above, I grant Aviva’s request for reconsideration, in part, and remand this matter back to the hearing adjudicator for a hearing limited to determining the quantum of the attendant care benefit due, accepting as fact the hours found by the Tribunal to be incurred, and consistent with this decision. The Tribunal shall first schedule a case conference for settlement and procedural issues prior to proceeding to a brief hearing on this limited issue.
Released: August 30, 2019
______________________
Jeffrey Shapiro
Vice Chair
Footnotes
- While Aviva’s submissions only argued the quantum issue, its initial request for reconsideration, at paragraphs 5-7, stated other errors: a lack of evidence of a “promise to pay” and an erroneous finding that Aviva took no steps to determine if the applicant had incurred ACB. I have only dealt with the grounds that Aviva provided submissions on, namely, the issue of the quantum of the attendant care benefit.
- S.K.’s reconsideration submission at page 5.
- S.K. also mentions the Tribunal could have found that the payments incurred under section 3(8) of the Schedule but does not argue that point. In fact, the Tribunal considered and rejected that argument.
- Previously the Superintendent of Insurance.
- 16-001063 v. Belair Direct Insurance Company, 2017 CanLII 56675 (ON LAT)