Y.K. v. Aviva General Insurance Company, 2020 CanLII 34443

Citation: Y.K. vs. Aviva General Insurance Company, 2020 ONLAT 18-003926/AABS

Released Date: 03/25/2020 File Number: 18-003926/AABS

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:

Y.K.

Applicant

and

Aviva General Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Chloe Lester, Vice-Chair

APPEARANCES:

Counsel for the Applicant: Gary Mazin, Counsel

Counsel for the Respondent: Kathleen Mertes, Counsel

Hearing Dates: August 6-9, 2019

Overview

1The applicant, YK, was involved in an accident on September 4, 2011 that left him with permanent physical and psychological impairments. At the time, he was 22-years-old. While riding his bicycle, he was hit by a vehicle and thrown 66 feet. As a result, he suffered a severe and traumatic brain injury, ruptured spleen and liver, damaged kidney, and a fractured skull and left shoulder. He was rushed to the hospital, where he was in a coma for 21 days. Given YK’s traumatic brain injury, his brother, JK, was eventually appointed his litigation guardian.

2YK applied for benefits under the Schedule.¹ Within a few months of the accident, he was designated catastrophically impaired and later approved for an attendant care benefit (“ACB”) in the amount of $6,000.00 per month.

3JK left his multiple part-time jobs to provide attendant care to YK.

Background

4At the time of the accident, in order to be entitled to ACBs, YK was required to prove that the expenses related to his care were reasonable and necessary: see s.19. In order to receive payment, YK was required to prove that the benefits were “incurred,” a term that s. 3(7)(e) of the Schedule defined as follows:

(e) subject to subsection (8), 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;

5In this case, YK chose to use a non-professional service provider, his brother, JK, to provide his attendant care.

6At that time, the Schedule provided that the benefit was payable in accordance with an Assessment of Attendant Care Needs (“Form 1”) as long as the non-professional service provider sustained an economic loss. The economic loss could be less than the approved Form 1 but, nevertheless, ACBs would be paid in accordance with the amount indicated in the Form 1.²

7YK had an approved Form 1 in the amount of $6,000.00 per month. JK left various jobs, thereby sustaining an economic loss, to provide attendant care services to YK. JK’s economic loss was less than the approved Form 1 but, nevertheless, ACBs were paid at $6,000.00 per month.

8However, on February 1, 2014, the Schedule was amended. Since that time, insurers have been obligated to pay for all reasonable and necessary ACBs provided by a non-professional service provider equal to the provider’s economic loss. In other words, YK can only receive an ACB equal to JK’s economic loss as long as that loss is not greater than the approved Form 1 and statutory limitations.³

9In a letter dated July 18, 2017, Aviva advised YK that, effective immediately, ACBs would be paid in amount equal to JK’s economic loss. More specifically, Aviva determined that JK’s economic loss was equal to his lost wages. Based on JK’s last year worked, that economic loss equaled $2,100.00 per month. However, for some reason that was never explained, Aviva calculated JK’s economic loss as being equal to the average of his income over three taxation years: the year immediately before the accident and the two following, during which JK was almost exclusively taking care of YK and therefore not receiving an income. This lowered JK’s economic loss, in Aviva’s view, to $1,528.91 per month. Aviva paid ACBs at this lower rate for almost two years, until it revised its position when this matter proceeded to a case conference.

10Since ACBs were being paid at a monthly rate of $2,100.00 but approved for $6,000.00 per month, YK decided to hire a professional service provider, Medex Health Services (“Medex”). Medex provided attendant care services for several months at the beginning of 2018, and invoiced Aviva for those services in April 19, 2018. The invoice payment was due 30 days later⁴ on May 18, 2018. Aviva did not pay the invoice. As a result, Medex stopped providing care to YK. Medex and YK repeatedly followed up on the unpaid invoice. Aviva’s adjuster either replied that it was looking into the invoice or, did not respond at all. The invoice remained unpaid until March 2019. On that basis, YK is seeking these ACBs provided by Medex be deemed incurred pursuant to s. 3(8).

11YK submits that Aviva continues to apply an overly restrictive definition of “economic loss” since it implemented the February 1, 2014 amendments to the Schedule effective July 18, 2017. In particular, he claims that JK’s economic loss should include other losses aside from lost earnings: lost job opportunities, lost fringe benefits, lost contributions to Employment Insurance (EI) and Canada Pension Plan (CPP), and other expenses paid in the course of providing attendant care to YK. Aviva disagrees. It submits that the Schedule does not define “economic loss” in the way YK suggests and that, at this point, JK’s economic loss should be based only on his lost earnings, in particular the last year JK worked.

12YK also claims entitlement to housekeeping benefits. He argues that, prior to the accident, he was responsible for caring for his own apartment and, since the accident, has become physically and mentally incapable of completing those tasks.

13Lastly, YK claims entitlement to an award under O. Reg. 664. He argues that Aviva unreasonably withheld ACBs and housekeeping benefits, and delayed payments for invoices, actions attracting an award.

Issues

14The issues to be considered are:

(i) In reference to the ACBs, do the February 1, 2014 amendments to the Schedule apply to an accident that occurred on September 4, 2011?

(ii) What is the definition of “economic loss” and what is JK’s economic loss?

(iii) Should s. 3(8) of the Schedule apply to the ACBs provided by Medex, whether the benefit should be deemed incurred, because Aviva unreasonably delayed or withheld payment of them?

(iv) Is YK entitled to a housekeeping and home maintenance benefit?

(v) Is YK entitled to an award under O. Reg. 664?

(vi) Is YK entitled to interest on the overdue payment of benefits?

Results

15I find that the February 1, 2014 amendments to the Schedule apply to the accident at issue.

16Since July 2017, JK’s economic loss is equal to his lost wages and, thus, ACBs are payable accordingly.

17I deem the ACBs provided by Medex incurred from May 19, 2018 until March 7, 2019 in the amount of $2,205.00 per month. The months of May 2018 and March 2019 shall be prorated.

18YK is entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from November 1, 2016 onwards, subject to the benefit being incurred. Currently, since only half of the benefit is incurred, Aviva is ordered to pay $50.00 per week.

19YK is entitled to interest in accordance with s. 51 of the Schedule.

20YK is also entitled to an award.

Do the amendments made to the Schedule on February 1, 2014 apply to an accident that occurred on September 4, 2011?

21At the time of the accident, s. 19(1) of the Schedule stated that an insurer shall pay for all reasonable and necessary attendant care expenses “incurred” by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.

22Further, s. 3(7)(e) stated that, in order to for the expenses to have been incurred, the insured must receive the services, has promised to pay the expense, and the provider must prove they have sustained an economic loss as a result of providing the services.

23Subsections 19(2) and (3) stated that the amount of ACBs are determined in accordance with the Form 1 and cannot be more than the statutory limits. For a catastrophic impairment, ABCs cannot exceed $6,000.00 per month.

24In this case, YK was deemed catastrophically impaired shortly after the accident, and a Form 1 was approved in the amount of $6,000.00 per month. JK left his various jobs to provide care to YK and, as a result, sustained an economic loss. Aviva paid ACBs in the amount of $6,000.00 per month.

25That changed after the Schedule was amended on February 1, 2014 to limit the amount of ACBs payable for services rendered by a non-professional service provider. Paragraph 4 of subsection 19(3) now states that the amount of attendant care payable for non-professional attendant care providers shall not exceed the amount of the economic loss sustained by the provider during the period while, and as a result of, providing the attendant care.

26In other words, even though ACBs were approved at a rate of $6,000.00 per month, what was payable changed to an amount equal to JK’s economic loss.

27The industry was unclear whether this amendment applied to accidents before February 1, 2014. Clarity came in 2017, when the Financial Services Commission of Ontario (“FSCO”) issued the Barnes⁵ decision, which held that the February 1, 2014 amendments applied to all accidents on or after September 1, 2010.

28In accordance with that decision, Aviva advised YK on July 18, 2017⁶ that the changes to the Schedule applied to YK’s 2011 accident. As a result, Aviva explained, YK would now receive ACBs equal to JK’s economic loss.

29At the hearing, Aviva argued the same. It submits that the February 1, 2014 amendments took effect immediately and apply to all accidents on or after September 1, 2010. To that end, Aviva relies on two decisions, namely Barnes and BD.⁷ YK does not take a position on this issue. As explained below, I agree with Aviva.

30Based on those decisions and the language of the Schedule and its amendments, I find that the amendments effective February 1, 2014 applied to all accidents that occurred on or after September 1, 2010.

31Both Barnes and BD rely on Gan Canada Insurance Company v. Lehman,⁸ which is binding on the Tribunal, to support its reasoning that the 2014 amendments to the Schedule apply immediately to all accidents that occurred on or after September 1, 2010. All three decisions conclude that an insured does not have a vested right to a particular version of the Schedule dependent on when the accident occurred.

32Both Barnes and BD discuss the amount of ACBs payable for non-professional care. In both decisions, the accidents occurred after September 1, 2010 but before February 1, 2014. In Barnes, FSCO found that the applicant did not have a vested right to a Schedule and that the amendments applied immediately. FSCO based its decision on Lehman, upheld at Divisional Court, that there is no vested right to a Schedule because it would be in contradiction to subsection 268(1) of the Insurance Act,⁹ which states:

Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule (emphasis added).

33Likewise, in Barnes, FSCO found that it was “illogical to apply the concept of vested contractual rights to a relationship in which the parties have no direct input in the terms of their relationship, and the terms may be amended from time to time without their input or consent.” BD contains similar reasoning. Since the facts concerning those cases are similar to the ones before me, I see no reason to differ in opinion.

34To further support that reasoning, when the Schedule was amended on February 1, 2014, the Schedule continued to state that it applied to all accidents on or after September 1, 2010. In particular, s. 2(1) provided as follows:

2. (1) Except as otherwise provided in section 68, the benefits set out in this Regulation shall be provided under every contract evidenced by a motor vehicle liability policy in respect of accidents occurring on or after September 1, 2010.

35Given that s. 68 does not apply here,¹⁰ it is clear to me that lawmakers wanted the changes to s. 19 to take effect immediately on February 1, 2014 and apply to all accidents that occurred on or after September 1, 2010.

36Therefore, YK is entitled to ACBs, subject to statutory limitations and approved Form 1 amounts, equal to JK’s economic loss.

What is the definition of “economic loss” and what is JK’s economic loss?

In general, what is the definition of “economic loss”?

37The key issue in this hearing is what can properly be considered “economic loss.”

38The parties have asked me to define that term comprehensively. In Henry v. Gore Mutual Insurance Company,¹¹ the Court of Appeal was also asked to do the same but declined. I follow that approach for the same reason: it would be nearly impossible to define the term in such a way as to account for every possible kind of loss. What might be properly considered “economic loss” is fact-specific and dependent on the parties’ evidence. Rather, to assist the parties, I will simply refer to what is considered “economic loss” in a generic sense and apply the relevant case law to the facts of this case.

39A number of decisions from the Court of Appeal, Divisional Court, and FSCO provide guidance on what is or is not properly considered “economic loss” for the purposes of the Schedule. Based on the Divisional Court’s decision in Simser v. Aviva Canada Inc, “economic loss” includes only a financial or pecuniary loss.¹² Also, in Simser, the decision stated when proving expenses, the evidence may not be vague and or lacking in detail, and the applicant must link the expense or the loss to the attendant being provided. For example, past cases have found that the following were included in the concept of “economic loss”:

(i) the cost of bus tickets or bus passes in order to travel to an applicant's home to provide attending care;

(ii) the loss of income;

(iii) a potential loss of opportunity cost. For example, deferring graduation in order to provide ACBs, which resulted in a postponement of paid income;

(iv) loss of money on paid tuition and books, and repayment to OSAP because of leaving school to provide attendant care;¹³

40Previous case law has not accepted “economic loss” as including a loss of time or contributions to EI and CPP.¹⁴

What is JK’s economic loss?

The Parties’ Submissions:

41YK argues that Aviva applied a restrictive, underinclusive definition of “economic loss.” YK submits that, in providing attendant care services, JK suffered the following economic loss for which he should be compensated:

(i) Loss of job opportunities. JK has been out of the workforce for almost eight years and, therefore, has missed applying for or receiving different job opportunities, promotions, salary increases, and/or bonuses. In his evidence, YK provided three potential loss of job opportunity scenarios, including one that contemplated JK graduating with a master’s degree and receiving a corresponding salary;

(ii) Loss of fringe benefits. These include medical and dental plans, pension plans, and contributions to EI and CPP; and

(iii) Paid expenses relating to providing the attendant care. These include expenses relating to an increase of utility expenditures, restaurants, outings, grocery bills, kilometres and parking expenses.

42YK also submits that if ACBs are considered taxable income, then ACBs should be paid in an amount equal to JK’s gross salary. According to YK, this would ensure that JK would not lose further income as a result of declaring ACBs on his yearly taxes.

43JK testified that he is a university bachelor’s degree graduate in Finance and Administration. When he graduated from university, the economy was facing a recession and he could not find a job in his field. The last full year he worked, he was employed at different part-time positions and his Notice of Assessment (NOA) in 2011 indicated he made $25,190.¹⁵ JK also testified that he was applying to complete a master’s degree in business administration (MBA) and obtain a Certified Management Accountant (CMA) designation.

44YK’s accountant testified that, if JK had continued in the workforce instead of providing attendant care to YK, JK would have had the possibility of promotions, raises, and the ability to apply for other jobs to further his career. He also testified that the Schedule does not use the words “income loss” but, rather, uses the concept of “economic loss,” which should include one’s loss of opportunities and benefits that would have otherwise been available through employment. The accountant testified that he believed JK’s economic loss should also include loss of fringe benefits. He agreed that not all jobs offer fringe benefits, but that most jobs do or would.

45The accountant provided three scenarios representing JK’s loss of income and job opportunities as a result of providing attendant care to YK:

(i) Scenario 1: JK’s projected annual income based on his last year of earnings, adjusted for inflation each year;

(ii) Scenario 2: Projected annual income based on the average employment earnings of all males in Ontario, working full-time or part-time, with a bachelor’s degree adjusted for inflation. This also includes a 5% salary increase for the average cost of fringe benefits and the actual value of employer contributions to EI and CPP for those years; and

(iii) Scenario 3: JK’s projected annual income based on the average earnings of all males in Ontario (aged 25-45), working full-time or part-time, with a master’s degree in commerce adjusted for inflation. This also includes a 5% salary increase for the average cost of fringe benefits and the actual value of employer contributions to EI and CPP for those years.¹⁶

46Aviva submits that, in this case, the income loss calculation should be based on the last year worked, net pay, which equals $2,100.00 per month. Aviva submits that it is unrealistic to conclude that JK would have completed his MBA and CMA. It submits that JK does not meet the minimum requirements for applying for an MBA or CMA, including the necessary work experience and passing the GMAT, an essential test when applying for an MBA. Aviva submits that EI and CPP contributions do not count toward “economic loss” because neither involves an immediate benefit.

The Law

47The Schedule stipulates in s. 19 that an insurer shall pay for all reasonable and necessary ACB expenses that are incurred on behalf of an insured person, in accordance with the Form 1, and shall not exceed $6,000.00 per month in the case of a catastrophically injured person. If the attendant care provider is a non-professional, then the amount of the ACBs payable shall not exceed the amount of economic loss sustained by the provider during the period they provided the attendant care.

48The parties agree that YK is catastrophically impaired and that his ACBs will be paid out to a maximum of $6,000.00 per month subject to being incurred.

49The Schedule was amended so that ACBs paid to an injured person would make the non-professional attendant care provider whole for the financial or pecuniary loss incurred as a result of providing the care. The provider becomes whole when they are compensated for their economic losses. The losses may change month-to-month depending on the individual circumstances of the non-professional provider.

Loss of Opportunities

50YK submits that “economic loss” does not just mean wage loss. YK relies on Simser to support his position that “economic loss” also includes loss of opportunities. I agree. That decision made it clear that while “economic loss” must represent a financial loss, the Divisional Court did not rule out the possibility of it including the loss of opportunities. The decision provides the example of a student sustaining “an economic loss where s/he defers graduation in order to provide attendant care, resulting in postponement of paid employment. Of course, this type of “economic loss” would need to be established by a proper evidentiary foundation.”¹⁷

51On that basis, “economic loss” includes financial losses associated with forgoing promotions, wage increases, or the ability to accept other jobs. This type of economic loss must be based on an actual financial loss and on a proper evidentiary foundation.

52To illustrate, consider a non-professional attendant care provider who is also a unionized plumber. As a result of providing care to his spouse, he takes a leave of absence from his job. After leaving, his collective agreement is renegotiated and results in a signing bonus and 10% wage increase over the next four years for all employees. If he continued to provide attendant care to his spouse, his economic loss would include the wage increase and signing bonus.

53Likewise, another example of a loss of opportunity might be forgoing a job promotion or salary increases as a result of providing care. Consider a manager who testifies at a hearing that his former employee, the attendant care provider, was about to be promoted, resulting in a 5% salary increase and increased benefits. The manager may also testify that, had his former employee stayed in the position, he would have been eligible for the yearly company bonus and salary increases tied to inflation. Again, both examples would prove that the service provider’s economic loss should increase as a result of proving attendant care.

54That being said, I cannot conclude that JK sustained an economic loss or loss of opportunity based on any of the accountant’s projected scenarios.

55As mentioned above, Simser requires that a claim for loss of opportunities be made on a proper evidentiary basis. In this case, I find there is a lack of evidence to support YK’s position that any of the projected scenarios is a form of lost opportunity. Therefore, the wage loss portion of JK’s economic loss is equal to his last year worked.

56To begin, employers have no obligation to tie wages to inflation. Moreover, I received no evidence to suggest that any of JK’s former positions had tied wages to inflation.

57Likewise, I have no evidence to suggest that JK would have received an average salary of a working male with a degree in Ontario. In fact, at the time of the accident his income tax’s Notice of Assessment from his last year worked was less than half of the projected scenario. At the time of the accident, JK had been working various positions, one of which was through a temporary agency. There was no evidence to support that he would have loss of promotions or salary increases from any of those employments as a result of providing care. YK also has not provided any evidence that JK has forgone job opportunities as a result of providing attendant care.

58Also, at this time, since JK had not even completed the minimum requirements necessary for being accepted into a master’s program, I find there is no evidence to support the likelihood he would have received the average earnings of a male with a master’s degree. He had not completed the GMAT, a required entrance exam for applying for a master’s degree, nor had he completed and applied for the master’s degree programs.

59The accountant’s scenarios are based on assumptions about JK’s life, and I cannot conclude the assumptions are made on a proper evidentiary foundation. Once the assumptions were made, the average salaries were not referenced from actual job offers but from very vague statistics from Statistics Canada website. The average salaries were lacking in detail and was not based upon anything actually happening in JK’s life.

Loss of Fringe Benefits, CPP and EI

60I find that loss of fringe benefits can be a form of “economic loss”. The person providing attendant care is forgoing benefits that would have been normally paid on their behalf, thus amounting to an “economic loss”. To illustrate, the non-professional provider may now have to pay for the full cost of a medication that was partially paid by their former employer.

61YK’s accountant testified that the proposed projected scenarios representing JK’s losses included a 5% salary increase for the average cost of fringe benefits. This value represents the average cost of providing extended health care plans and pensions.

62Again, however, I cannot find that JK sustained a loss of fringe benefits. At the time he left the workforce, JK did not have access to any extended health care plan or pension. I also do not have any evidence suggesting that, within the last eight years, JK received or refused a job offer with any of those benefits. Therefore, I cannot conclude that JK has suffered an economic loss that includes a loss of fringe benefits.

63Similarly, while I also find that a loss of contributions toward CPP and EI can be a form of “economic loss”, I am unable to find that JK suffered this kind of loss.

64YK relied on the accountant’s testimony to support his position that contributions toward CPP and EI are considered an “economic loss”. The accountant testified that even though CPP and EI are benefits received in the future, any loss of contributions toward those plans should be considered “economic loss” and can be calculated.

65Aviva disagrees and relies on Morten¹⁸ to support its position that CPP and EI contributions are not considered an “economic loss”. The arbitrator in Morten concluded that, even though the appellant lost the opportunity to have contributions made on her behalf, she would not have suffered an economic loss unless she received a smaller pension upon retirement than if she had kept working. The arbitrator found that the CPP and EI contributions represented a potential future economic loss, something not contemplated by the Schedule.¹⁹

66I disagree with the Morten decision regarding its conclusions on CPP and EI. Although CPP and EI payouts may not be received until the future, the loss of contributions made toward those plans are during the time the care is being provided and should be considered an “economic loss.” The Schedule states that the amount of ACBs payable shall not exceed the economic loss sustained by the provider during the period they provided care. Once JK stopped working, and as a result of providing care to YK, JK is no longer making contributions toward CPP and EI.²⁰ The loss of contributions is sustained during the period JK is providing care to YK. Therefore, the loss of contributions toward CPP and EI can be considered “economic loss.”

67The evidence shows that, prior to JK leaving his occupations, he made contributions toward CPP and EI.²¹ JK’s employers made separate and additional contributions. As a result of providing care, JK ceased working, and contributions toward CPP and EI are no longer being made. Thereby sustaining an “economic loss.” This form of “economic loss” is not a compensation received as disposable income, but in the form of contributions paid to a government benefit plan. The “economic loss” is only realized when the ACBs are claimed as income and contributions are made to CPP and EI.

68Since JK has not claimed the benefit as income, thereby not contributed toward CPP and EI for the last eight years, he cannot claim it as an “economic loss.”

Gross Salary Versus Net Salary

69YK argues that if compensation for ACBs is considered taxable, then JK’s income loss should equal an amount representing gross salary. Consequently, JK can declare the ACBs as income, remit taxes to the government, and contribute toward CPP and EI. Once the income is declared, the remaining value is representative of JK’s net salary.

70On the other hand, if ACBs are considered non-taxable, then YK submits the income loss is equal to JK’s net salary. Currently, JK’s income loss is being paid at a net salary rate.

71The accountant testified that he does not know whether ACBs are considered taxable income.²²

72That is not a question the Tribunal can answer without proper evidence from an authoritative source. I have no evidence to conclude whether the income loss is taxable benefit and on that basis, I make no findings on whether the ACBs should be tied to a gross or net salary.

Loss of Paid Expenses

73YK submits that JK’s economic loss also includes the loss of various expenses that JK paid in the course of providing attendant care. These expenses amount to approximately $20,900.00 annually for additional utility bill expenditures, groceries, entertainment, outings, restaurants, parking and internet. JK testified that the impairments from the accident caused increased expenses. For example, YK constantly leaves the lights on, repeatedly boils the kettle for tea, gets angry and damages the house, resulting in purchases for repairs. YK will also try unsuccessfully to cook for himself, requiring JK to buy more groceries than what might otherwise be necessary. They also take numerous trips to the same store in the same day. For instance, JK provided the example of YK needing a pencil: they drive to Walmart to get a pencil, come home, then YK will want an eraser, leading to another trip to Walmart.

74Aviva submits that these expenses were not incurred in the course of providing attendant care and, thus, are not a recoverable expense under the Schedule. Alternatively, it submits that some of these are expenses already being recovered through ODSP and, therefore, are not reasonable and necessary.

75I find that case law and the parties agree that expenses paid as a result of providing attendant care is a form of “economic loss.” Based on JK’s testimony and the evidence provided, however, I cannot confirm whether the expenses are from providing attendant care or whether they are regular household expenses. The credit card statements show several trips to Walmart, Costco and other stores. However, the statements do not show what the expenses were for and how they are connected to the attendant care. Most of the examples provided in JK’s testimony resulted from additional expenses being incurred as a result of the impairments from the accident and not as a result of providing care.

76JK admits that some of the expenses are recoverable under the payments received from ODSP. However, as a result of YK’s brain impairment, JK testified that he cannot access those funds and therefore continues to pay for expenses out of his own pocket. Therefore, he is requesting that Aviva pay for those additional expenses.

77Since YK is receiving funding for those additional expenses through another source, I cannot find that Aviva is responsible for compensating JK for those expenses simply because he cannot access the funds.

78YK is claiming expenses for the monthly cost of the internet. He claims it is for running an app called Lumosity. JK testified that, although other individuals in the household use the internet, it was originally purchased for YK’s use. Expenses relating to attendant care must be as a result of the care. In Asukumaran²³ the cost of bus tickets was considered a form economic loss because it was to travel to and from the injured person’s home. In this case, the cost of the internet is not linked to an expense as a result of providing attendant care but as a result of YK’s therapies. This may be a recoverable expense under a medical/rehabilitation benefit, but it is not a recoverable expense under ACBs.

79YK also submits he incurs additional expenses for outings. I acknowledge that, in one of the occupational therapy reports,²⁴ the rehabilitation assistant recommended a monthly stipend of $150.00 in order to pay for outings and other incidentals relating to YK’s rehabilitation goals. That being said, I do not have evidence to prove the expense is a direct result of providing attendant care. If the expense is related to YK’s therapies, then it ought to be submitted on a treatment plan (OCF-18). Referring to the case law provided by the parties, the expenses that were awarded as “economic loss” were costs incurred as a result of providing attendant care. For example, economic loss included lost tuition or book costs because the provider quit school in order to provide attendant care.²⁵ I cannot conclude that outings correlate to expenses as a result of providing attendant care.

80YK also submits there is an economic loss relating to mileage, as JK drives him to appointments and outings. The parties agree that mileage could be a recoverable expense under the Schedule, in accordance with s. 19(1)(b). JK testified that he gets compensation for mileage from ODSP, but they do not cover parking expenses. Since JK is already being compensated for mileage through ODSP, it cannot be considered an economic loss.

81Parking expenses could be considered an economic loss if they were incurred in the course of providing the attendant care. However, I do not have any evidence to substantiate that these parking expenses were paid as a result of providing attendant care.

82In conclusion, YK is not entitled to any of the claimed expenses. The expenses are being covered through another source, are not a recoverable expense under the Schedule, should be submitted in a treatment plan (OCF-18) or there is no evidence to support the expense was a result of providing attendant care. Therefore, YK is not entitled to claim these expenses as an economic loss.

83Based on the submissions of the parties and the evidence, JK’s economic loss is currently equal to his income loss totalling $2,100.00 per month. His economic loss does not include a loss of extended health care benefits or a pension plan because he was not receiving them when he left his last employment and he has not demonstrated that he would be eligible for those types of plans through other job offers. Since JK’s NOAs do not include the ACBs he has received as income, I cannot conclude his economic loss should be equal to JK’s gross salary. As JK has not made any contributions toward CPP and EI, I also cannot conclude his economic loss should include contributions toward those benefit plans.

Is YK entitled to s. 3(8) of the Schedule - deemed incurred provisions?

84As YK was only utilizing approximately $2,100.00 of ACBs, but was approved for up to $6,000.00, he decided to hire a professional service provider, Medex, to assist JK. After providing the services for a few months, Medex sent an invoice to Aviva on April 19, 2018. Aviva had 30 days to pay the invoice, rendering it due on May 18, 2018. One day before the invoice was due, and as a result of not being paid, Medex refused to continue to provide care to YK. After Medex stopped providing this additional care, YK and Medex followed up with Aviva numerous times regarding the unpaid invoice.²⁶ In her testimony, the adjuster could not provide a satisfactory excuse to explain Aviva’s failure to pay the invoice, other than she believed that ACBs were only approved for the amount already being paid, i.e. about $1,500.00. She could not explain why she did not follow up or deny the invoice. Medex and YK continued to follow up on the unpaid invoice until it was paid approximately nine months later on March 8, 2019.

85YK asks that I deem the benefits incurred in accordance with s. 3(8) of the Schedule. In his view, Medex stopped providing him care, and he was unable to incur that benefit, precisely because Aviva unreasonably withheld or delayed payment of Medex’s invoice. The representative from Medex testified that they stopped providing services because they did not get paid. She also testified that YK was worried that he would be responsible for paying Medex’s invoice if Aviva was not going to pay for it.

86Subsection 3(8) of the Schedule states as follows:

If in a dispute described in subsection 280 (1) of the Act, the Licence Appeal Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Licence Appeal Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

87The Tribunal may deem an expense incurred if it finds that the benefit was not incurred because the respondent unreasonably withheld or delayed payment of the benefit.

88Aviva submits that the invoice was received on April 19^th^ and, therefore, were not payable until May 18^th^. The parties agree that Aviva had 30 days to pay the invoice. The decision to stop the services by Medex was made one day before the invoice were due on May 17^th^. Therefore, Aviva submits, it cannot be responsible for unreasonably withholding payment of the benefit as they were not yet responsible for issuing payment.

89I agree with YK and find that Aviva acted unreasonably by withholding or delaying payment of the Medex invoice. Aviva’s adjuster acknowledges that it ought to have paid the invoice, that she failed to follow up, or respond to the invoice. I find that the benefit could not continue to be incurred because it was a result of the unpaid invoice that Medex ceased it services. I also find that the benefit could not be incurred through another professional service provider as YK would have same concerns regarding whether the invoice would be paid by Aviva or whether he would be ultimately responsible for paying it. Aviva failed to provide a response to YK and Medex explaining why the invoice was not paid, despite the repeated follow-up by both. Even though the services were stopped one day before the invoice was due, Aviva does not provide a reasonable explanation for why the invoice was still not paid for an additional nine months.²⁷ Given Aviva’s failure or refusal to resolve this issue for many months, I find that its actions amount to an unreasonable withholding or delayed payment of the ACBs and it is as a result of those actions YK could not incur the benefit.

90I deem the ACBs incurred from May 19, 2018 until the invoice was paid on March 8, 2019 in the amount of $2,205.00 per month, which was the cost of Medex’s services per full month of care.²⁸ Once the invoices were paid, YK could have continued to receive professional services. The expenses shall be prorated for the months of May 2018 and March 2019 since, during those months, a full month of attendant care could not have been provided.

Is YK entitled to a housekeeping and home maintenance benefit?

The Parties’ Submissions

91YK submits he is entitled to a housekeeping and home maintenance benefit beginning November 1, 2016 onward. YK submits the benefit is reasonable and necessary because: (1) he is catastrophically impaired; (2) had housekeeping responsibilities before the accident, (3) he is now incapable of completing them because of his accident-related injuries; and (4) that JK and his sister, FK, are completing those housekeeping tasks for him.

92Aviva submits that YK is not entitled to the benefit for four reasons: (1) it is unclear whether pre-accident YK was responsible or capable of any housekeeping tasks; (2) since YK now lives upstairs with his family instead of downstairs in his own apartment, Aviva submits there is overlap between the duties the family are responsible for versus the duties YK are responsible for; (3) the housekeeping duties overlap with the attendant care services; and (4) YK did not apply for housekeeping benefits for the first five years after the accident.

The Law

93Section 23 of the Schedule states that

The insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

94Section 23 states the necessary criteria for entitlement to the benefit. Further, in order to receive payment for the benefit, it must be incurred. Clause 3(7)(e) of the Schedule outlines the requirements for meeting the definition of “incurred.”

(i) In this case, JK and FK provided the housekeeping services. Therefore, YK must prove that, as a result of being catastrophically impaired, the expenses are reasonable and necessary. This entails proving that he normally performed housekeeping/home maintenance services before the accident and that,

(ii) because of his accident related injuries, he now has a substantial inability to perform the services.

95In order to receive payment for the expenses, YK must prove he has incurred the benefit as per s. 3(7)(e) of the Schedule.

Entitlement to the Benefit

96YK must prove that because of the accident related injuries he has a substantial inability to perform housekeeping services and that the benefit is reasonable and necessary. While the parties agree that YK has a substantial inability to perform housekeeping, they disagree on whether he had housekeeping tasks prior to the accident.

97JK testified that, before the accident, YK rented a basement apartment in their other brother’s house for $500.00 per month. The basement apartment consisted of a living room, bathroom, and kitchen without a stove. JK testified that, before the accident, YK was fully independent and took care of all the housekeeping in his apartment.

98The adjuster testified that she believed YK was not entitled to the benefit because there were, as she called it, “references” in the documents provided to her that YK did not perform any housekeeping duties prior to the accident.²⁹ When asked, the adjuster never could point to any of these references.

99I find that YK met his onus and had housekeeping responsibilities of taking care of his own apartment, washroom, bedroom, and kitchen prior to the accident. I find JK’s testimony credible. Aviva’s position that YK did not have any housekeeping responsibilities before the accident is not founded on any evidence. Aviva also submits that, since the claim for housekeeping benefits did not begin until five years after the accident, it should disentitle YK to the benefit. I disagree. As long as YK meets the necessary requirements for the benefit, the Schedule requires that the amount be paid regardless of when it began to be claimed.

100I find that YK is entitled to a housekeeping benefit in the amount of $100.00 per week from November 1, 2016 onward, subject to it being incurred. I find that the benefit is reasonable because the amount being claimed, $100.00, which is within the limits of the Schedule, and necessary because YK is no longer capable of completing any housekeeping tasks that he previously performed.

Payment of the Benefit

101In order to receive payment of the benefit, YK must prove three criteria.

(i) YK received the goods and services.

102JK and FK testified that they both provide housekeeping services for YK. JK stated that he and his sister split the housekeeping duties which take about one hour per day. They clean the mess YK makes after eating, change YK’s bed sheets as he regularly soils them, and clean his bathroom and bedroom. Based on the testimony of the siblings, they split the housekeeping responsibilities and invoice Aviva at $50.00 per week per sibling.

103Because of his post-accident injuries, YK now resides upstairs in the same house as he did before when he rented the basement apartment. YK now lives upstairs with JK, FK and other family members, and rents a bedroom and bathroom with shared kitchen for $500.00 per month.

104Aviva submits that, because YK no longer resides in his own apartment and is currently living with other family members, JK and FK are no longer cleaning YK’s apartment but the main house where everyone else resides. It submits that JK and FK are just performing regular housekeeping duties for which they would normally be responsible.

105I disagree. Based on JK and FK’s testimony, I find they are performing additional housekeeping responsibilities for YK that they would normally not perform. Prior to the accident, YK had his own apartment and was responsible for taking care of it. He now resides in his own room, has his own bathroom, and uses the kitchen. Since YK’s injuries prevent him from housekeeping duties, someone must be responsible for cleaning his room, bedroom and his use of the kitchen. Even though the kitchen is shared, JK testified that YK makes a mess while using it. I find that since YK is incapable of cleaning it on his own, someone must be responsible for cleaning it on his behalf.

106Aviva also claims that, based on FK’s testimony, there is some overlap between the housekeeping and attendant care tasks she is completing for YK. It claims that YK should not be entitled to a housekeeping benefit because FK assists YK with eating, which is an attendant care task and not a housekeeping task.

107I find there is no overlap between the attendant care tasks and housekeeping tasks. FK testified that she supervises YK eating, assists him in the bathroom, makes his bed and cleans his bathroom. Some of those tasks fall under attendant care responsibilities and the other tasks under housekeeping duties. FK provides housekeeping tasks as she makes his bed and cleans his bathroom. I find that the mere fact that FK assists in completing some attendant care tasks for YK does not imply there is an overlap of responsibilities. If attendant care and housekeeping tasks overlapped, then the Schedule would only allow an injured party to apply for one of those benefits. The Schedule recognizes that the tasks under attendant care are markedly different than the ones under housekeeping and allows for entitlement to both.

108On that basis, YK has proven that he has received the goods and services.

(ii) YK has paid, promised to pay or is legally obligated to pay for the expense

109Based on the testimony of JK and FK, YK has promised to pay his siblings for providing the housekeeping services. Aviva offered no submissions on this point. I find the testimony of the siblings credible and YK has met his onus.

(iii) The non-professional provider must sustain an economic loss

110YK submits that JK sustained an economic loss by leaving his former employers in order to provide the services. Aviva submits that JK’s economic loss is being covered through ACBs. Since YK has not demonstrated that JK has sustained an additional economic loss, Aviva submits that housekeeping benefits have not been incurred.

111Based on s. 23 and 3(7)(e) of the Schedule, YK must prove that the benefit has been incurred by demonstrating that JK and FK has sustained an economic loss. The Schedule does not state that the same person cannot provide both attendant care and housekeeping duties and be compensated accordingly.

112In order to demonstrate the benefit is payable, in the case of a non-professional service provider, the injured person must fulfill the three criteria listed above. The evidence has demonstrated that JK is providing both attendant care services and housekeeping services, he has been promised to be paid for the services rendered and he has sustained an economic loss. Therefore, the criteria for proving the benefit has been incurred is met.

113I find that YK has satisfied all the necessary criteria for entitlement to the housekeeping benefit and it is reasonable and necessary. With regards to incurring the expense, while I have evidence that JK sustained an economic loss, I have no such evidence for FK. Since the housekeeping invoice is billed at $50.00 each sibling, the evidence supports that half of the benefit is being incurred and is payable.

114As an aside, JK agrees that housekeeping invoices were issued despite being away on vacation for three weeks. YK agrees to withdraw those invoices.

Award

115YK submits that an award under s. 10 of O. Reg. 664 is warranted on the basis that Aviva has unreasonably withheld or delayed payments of attendant care and housekeeping benefits. He submits that invoices were continuously paid late. YK constantly followed up on unpaid invoices or for explanations of benefits. When he sought clarification regarding entitlement or payment of a benefit, it required multiple follow ups, he received no response at all, or Aviva’s decision was ultimately based on its adjuster’s incorrect assumptions. Lastly, YK claims that his housekeeping expenses were improperly denied.

116Aviva submits that the evidence and testimony of the adjuster indicates that a series of mistakes took place. These errors, in many cases, do not amount to serious delays. In some cases, the cheque was issued only a few days late; in other cases, invoices were paid late because of perceived settlement agreements between the parties. When the settlements were revoked, payments were issued on the invoices. Aviva also submits that, even though some invoices, in error, were paid late, Aviva has issued overpayments that would offset any delayed payments.

117Section of O. Reg. 664 states:

If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

118This section of the Schedule entitles an injured person to an additional lump sum award with interest when Aviva has unreasonably withheld or delayed payments. The award may be up to 50% of the amount to which the injured person was entitled.

119I find that Aviva acted unreasonably by withholding or delaying payment of attendant care and housekeeping benefits, along with interest payments. An insurance company is not held to a standard of perfection and is entitled to make errors. However, when such errors are numerous and continue in the face an insured’s repeated follow-up as in this case, such conduct clearly becomes unreasonable.

120In response to Aviva’s arguments, I have no evidence to support Aviva’s submissions that the delays in paying the invoices were due to revoked settlement agreements.

121Concerning Aviva’s arguments relating to overpayment, the claim was not listed as an issue in dispute and, instead, was raised for the first time in its concluding arguments. As a result, I find that YK was not aware that this was an issue he was required to defend. This raises an obvious concern about procedural fairness. Therefore, I cannot decide this issue. I trust that the parties can resolve this issue on their own. If they cannot, I note that Aviva is free to use the Schedule and commence its own application to seek repayment.

122As explained in further detail below, Aviva’s actions amounted to an unreasonably withholding or delaying of payments. YK is entitled to an award with interest.

Attendant Care Benefits

123YK asks for an award on JK’s wrongly calculated economic loss. At the time, Aviva was paying ACBs equal to JK’s economic loss, being his lost wages. Aviva acknowledges that it ought to have calculated JK’s wage loss being $2,100.00 per month. Instead, it based it on an average of three years which equaled a wage loss of $1,528.91 per month. Aviva issued payment on the invoices beginning July of 2017 in December of 2017. This was the first time YK realized that he was being paid a wrongly calculated ACB. YK advised Aviva of this error in the spring of 2018.³⁰ Despite being advised of this error, Aviva continued to pay YK this monthly amount from July 2017 until about March 2019, when the issue was discussed and resolved at a case conference. The parties agreed that JK’s actual income loss should have been based on the last year worked, being $2,100.00 per month. The adjuster upon testifying could not provide a satisfactory excuse for calculating the income loss on a three-year average. She just claimed it was an error. She also acknowledged that Aviva reviewed YK’s letter advising them of the mistake and, despite that, continued to pay the wrongly calculated wage loss. She also admitted that it took months for Aviva to calculate the economic loss and pay the ACB invoices despite having all the information it needed to calculate the economic loss.

124I find Aviva unreasonably withheld $571.09 per month from July 2017 until March 2019.³¹ Aviva continued to make errors and erroneously pay YK ACBs based on a wrongly calculated wage loss despite being advised otherwise. Therefore, YK is entitled to an award with interest for Aviva’s unreasonable withholding of ACB payments.

125Further, between the period of July 2017 to July 2019, the evidence demonstrates 14 examples of where attendant care invoices were paid late. Some were just a few days late, others were months late.³² JK was dependent on ACBs as a source of income in lieu of employment. An invoice paid even a few days late can obviously have a significant impact. Indeed, the late payment of the Medex invoice resulted in the withdrawal of professional services. Aviva acknowledges that YK ought to have been entitled to those professional services. Based on the unreasonable withholding of payments on the attendant care invoices, YK is entitled to an award with interest.

126YK submits he is also entitled to an award on the deemed incurred ACBs. YK argues that Aviva unreasonably withheld payments when it refused to pay Medex, despite follow up, for almost nine months. Aviva acknowledges the invoice was due May 18, 2018 and did not pay it until March 8, 2019. Aviva acknowledged it also failed to respond to YK’s counsel or Medex when queried on the payments. Based on my finding of the unreasonable withholding of payment, and the fact that YK was not able to access services he was entitled to and approved for, YK is entitled to an award with interest.

127YK also claims an award for the delayed payment of interest on the Medex invoice and interest on the difference in ACBs when it was finally paid in March 2019. The adjuster admitted during her testimony that she knew interest was payable but forgot to issue payment. I find YK is entitled to an award with interest as Aviva unreasonably delayed payment of interest.

House Keeping and Home Maintenance

128YK submits he is entitled to an award with interest on the unreasonable withholding and delayed payments on housekeeping benefits.

129Aviva first received invoices for housekeeping dating back to November 1, 2016 at the beginning of 2017. It asked for more information and documentation pursuant to s. 33 in order to clarify whether YK had any housekeeping responsibilities prior to the accident. YK wrote back asking for a list of documentation required to prove his claim.³³ On November 20, 2017, Aviva wrote to YK stating that it would require an Examination Under Oath (EUO) to determine entitlement to this benefit and would be contacting him to arrange one.³⁴ However, the EUO was never arranged.

130YK continued to submit invoices and follow up with emails regarding the housekeeping benefits to no effect. Aviva either responded that it required more information, again without indicating what information it needed, or provided no response at all.³⁵ The adjuster admitted during her testimony that Aviva never arranged for the EUO or denied the benefit.

131Based on my findings regarding the housekeeping and home maintenance benefits, YK is entitled to an award with interest. Aviva unreasonably withheld the housekeeping benefit by not arranging an EUO, basing its reason for not approving the benefit solely on its belief that YK was not responsible for housekeeping duties prior to the accident without any evidence to support that belief, and by not denying/responding to the request for the benefit. YK is entitled to an award with interest on the housekeeping and home maintenance benefits.

The Amount of the Award

132An award maybe granted up to 50% of the amount to which the person was entitled with interest. Neither party has indicated what percentage value I should award. Based on YK having been catastrophically impaired and having a severe brain impairment that requires a litigation guardian, I consider YK an extremely vulnerable member of society. Therefore, based on YK’s condition, the amount of times and funds Aviva has unreasonably withheld or delayed payment, I award YK 50% of the amount to which he was entitled.

133Since I do not have the specific information necessary to calculate the precise amounts of the award, I leave it to the parties to calculate it. Any disagreements between the parties may be referred to me.

Conclusion and Order

134In conclusion, the amendments to the February 1, 2014 Schedule apply to this accident. YK is entitled to an ACB equal to JK’s economic loss totalling $2,100.00 per month beginning July 2017.

135YK is entitled to a housekeeping and home maintenance benefit at the rate of $100.00 per week beginning on November 1, 2016 onward, subject to being incurred. At this time, since only 50% of the benefit is incurred, YK is entitled to payment in the amount of $50.00 per week from November 1, 2016 ongoing provided the amount continues to be incurred.

136YK is entitled to interest in accordance with s. 51 of the Schedule.

137YK is entitled to an award at the rate of 50% with interest on the amount of payments that were unreasonably withheld or delayed.

138If there are any disagreements between the parties on the award, they may contact the Tribunal within 45 days of the release of this decision for a future case conference before me to settle any issues in dispute.

Released: March 25, 2020

___________________________

Chloe Lester

Adjudicator

Footnotes

1. 1Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”).
2. 2Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10 s. s. 3(7)(e)(iii)(b)
3. 3S. 19(3)(4)
4. 4The parties agree that payment on invoices are due 30 days later.
5. 5Barnes v. MVACF, Financial Services Commission of Ontario (“FSCO”) File No. P16-00087 (April 6, 2017) [“Barnes”], application for judicial review dismissed on other grounds, 2019 ONSC 1782 (Div. Ct.)
6. 6Respondent’s Brief Tab D1.
7. 7BD and Wawanesa Mutual Insurance Company, 2018 CanLII 140989 (ON LAT) [“BD”]
8. 8Gan Canada Insurance Company v. Lehman, Ontario Insurance Commission File No. P97-00064 (August 10, 1998) [“Lehman”], aff’d [2000] O.J. No. 4902 (Div. Ct.)
9. 9Insurance Act, R.S.O. 1990, c.I.8.
10. 10Section 68 of the Schedule does not apply to this hearing, as that section concerns optional benefits, which YK did not have.
11. 11Henry v. Gore Mutual Insurance Co., 2013 ONCA 480 [“Henry”]
12. 12Simser v. Aviva Canada Inc., 2015 ONSC 2363 (Div. Ct.) [“Simser”]
13. 13Asokumaran v. TD Home and Auto Insurance Co., 2014 CarswellOnt 7982 [“Asokumaran”]; Simser; Bakir v. Dominion of Canada General Insurance Co., 2018 CarswellOnt 3564 (Div. Ct.)
14. 14Simser; Aviva Canada INC (Appellant) and Sierra Morten (Respondent), 2018 CarswellOnt 4988, [“Morten”]
15. 15Respondent’s Document Brief Tab E1.
16. 16Exhibit 66 – RSM Consulting Canada accounting report and opinion letter of McKellar Group.
17. 17Simser, supra note 10, paragraphs 39-40.
18. 18Morten, supra note 12
19. 19Morten, supra note 12, paragraph 31
20. 20JK’s 2013, 2014, 2015, 2016, 2017, 2018 NOA
21. 21NOA 2011 Respondent’s Document Brief Tab E1.
22. 22Exhibit 66 – RSM Consulting Canada accounting report and opinion letter of McKellar Group
23. 23Asokumaran v. TD Home and Auto Insurance Co., 2014 CarswellOnt 7982 [“Asokumaran”]
24. 24YK’s supplemental document brief Tab B1
25. 25Bakir v. Dominion of Canada General Insurance Co., 2018 CarswellOnt 3564 (Div. Ct.)
26. 26Applicant’s Brief - Tab C 26, Tab C 28, Tab 29, and Tab C 33.
27. 27Exhibit 65 – Emails from Medex to the respondent and Applicant’s Brief Tab C 28
28. 28Respondent’s Brief Tab C11
29. 29Exhibit 6 – EOB August 17, 2017
30. 30Applicant’s Brief Tab C 15, Tab C 18 and Tab B12
31. 31Respondent’s Brief Tab D 4, 6, and 7
32. 32Both parties agree that invoices should be paid within 30 days of receipt. The 14 examples of delayed payments were provided by the respondent on a spreadsheet at the hearing. YK has not confirmed whether the spreadsheet is accurate.
33. 33Exhibit 5, 6, 43, and 44
34. 34Exhibit 17
35. 35Exhibit 27, 28, 12, 31