Citation: [The Applicant],[Litigation Guardian] vs. Dominion of Canada General Insurance Company (Travelers), 2020 ONLAT 18-002185/AABS
Released Date: 02/14/2020
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:
[The Applicant]
([…] by his litigation guardian, [Litigation Guardian])
Applicant
and
Dominion of Canada General Insurance Company (Travelers)
Respondent
AMENDED DECISION [AND ORDER]
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
[The Applicant], Applicant
Laura Dickson, Counsel
Paul Harte, Counsel
For the Respondent:
Kadey Schultz, Counsel
HEARD: In-Person and in writing:
April 5, 8, 24 and 30 2019
OVERVIEW
1The applicant seeks a determination that the HST paid with respect to the attendant care services provided should be paid outside of the attendant care benefit limit as set out in s. 19 of the Statutory Accident Benefits Schedule - Effective after September 1, 2010 (the “Schedule”). The applicant also seeks an award under O. Reg. 664 as it claims that the respondent unreasonably withheld payments of the attendant care benefit by paying HST out of the benefit limit.
2The applicant was involved in a motor vehicle accident on March 21, 2014 and was subsequently deemed to be catastrophically impaired. Attendant care services are being provided in accordance with a Form 1 dated June 30, 2017, which assessed the applicant's monthly attendant care benefit as $10,618.83. The respondent is paying the attendant care benefit as submitted up to the maximum monthly limit of $6,000.00 as prescribed by s. 19 of the Schedule.
3The attendant care services are being provided, in part, by Right at Home. Right at Home charges HST on the services it provides to the applicant. To date, the respondent has paid both the cost of the attendant care services and the applicable HST out of the attendant care benefit limits afforded to the applicant up to the maximum of $6,000 per month. As of the date of the hearing, the respondent paid $2,844.06, as charged by Right at Home, for HST out of the applicant’s attendant care benefit policy limit.
ISSUES IN DISPUTE
4The issues in dispute are as follows:
I. With regard to the $2,844.06 in HST claimed with respect to the attendant care services provided to the applicant, is the HST to be paid from the attendant care benefit policy limit or outside of the limit?
II. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably delayed or withheld the payment of $2,844.06 in HST?
RESULT
5Based on a totality of the evidence before me, I find that:
I. The $2,844.06 in HST claimed with respect to the attendant care services provided to the applicant shall be paid outside of the attendant care benefit limit; and
II. The applicant is not entitled to an award under O. Reg. 664.
ANALYSIS
Is HST to be Paid from the Attendant Care Benefit Policy Limit?
6Section 19 of the Schedule does not address whether the HST applicable to attendant care services is to be paid from the benefit limit or outside of that limit. Indeed, the Schedule as a whole is silent with respect to this issue. The applicant submits that the $2,844.06 in HST in dispute in this case should be paid outside of the benefit limit and, to that end, relies in part on a number of Financial Services Commission of Ontario (“FSCO”) Guidelines and Bulletins in support of its position. FSCO issues Guidelines and Bulletins on various issues affecting the insurance sector in order to set out direction for parties dealing with accident benefits claims. In particular, the applicant relies on the Professional Service Guideline, the Costs of Assessment and Examination Guideline, the Costs of Goods Guideline, and a Bulletin entitled Use of Credit Information for Fleets/Commercial Use/Public Use Vehicles and Harmonized Sales Tax (HST).
7The Professional Services Guideline, Superintendent's Guideline No. 03/