F.R. v. Dominion of Canada General Insurance Company, 2020 CanLII 40336

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

Citation: F.R. and Dominion of Canada General Insurance Company, 2020 ONLAT 18-002185/AABS

Before: Jesse A. Boyce, Adjudicator

Date: May 29, 2020

File: 18-002185/AABS

Case Name: F.R. and Dominion of Canada General Insurance Company

Written Submissions by:

For the Applicant: Laura Dickson

For the Respondent: Kadey Schultz

OVERVIEW

1This request for reconsideration was filed by the respondent, Dominion. It arises out of a decision in which the Tribunal found that $2,844.06 in HST claimed with respect to attendant care services received by the applicant, F.R., was to be paid outside of the attendant care benefit limits prescribed by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2Dominion submits that the Tribunal erred in law in finding that HST is payable outside of the attendant care limits because it is an incurred “expense” under s. 3(7) of the Schedule. Further, it submits that the Tribunal erred in law by relying on non-binding FSCO Bulletins and not on the binding FSCO Attendant Care Hourly Rate Guideline which classifies HST as a related surcharge. Last, Dominion submits the Tribunal erred in law by acknowledging, but then not following, the reasoning that the Insurance Act and the Schedule do not compensate an insured person for the entirety of their out of pocket expenses or losses following a motor vehicle accident.

3In its request for reconsideration, Dominion asks that the Tribunal reverse its decision and order that the HST claimed with respect to attendant care incurred by F.R. was properly paid within the attendant care benefit policy limit.

RESULT

4Dominion’s request for reconsideration is dismissed.

ANALYSIS

5The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted under Rule 18.4 unless one of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

6Here, the basis for Aviva’s request for reconsideration falls under Rule 18.2(b), as Dominion submits that the Tribunal made multiple errors of law, identified in its submissions as follows: finding that the incurred HST pertaining to the provision of attendant care was not an “expense” subject to the attendant care policy limits; at para. 6, with the inaccurate statement that the Schedule does not address whether HST applicable to attendant care is to be paid within the policy limits; at paras. 7-11, by relying on portions of non-binding FSCO Bulletins to support the Decision and by not relying on other portions of the same FSCO Bulletins that do not support the Decision; by not following the FSCO Attendant Care Hourly Rate Guideline applicable to the claim; by acknowledging, but then not following, the principle that the Ontario automobile insurance scheme does not fully compensate an insured person for their out of pocket expenses or losses following a motor vehicle accident; and, by misapprehending the expert evidence of Mr. Michael Bussman in interpreting the Schedule.

7In response, F.R. submits that Dominion’s request should be denied because the issue before the Tribunal was one of statutory interpretation only and Dominion has failed to meet the high onus to warrant a reconsideration of the decision, has failed to provide sufficient evidence and argument to the Tribunal in support of its position, is raising the same arguments it made at the hearing and now seeks to relitigate the decision based on the same arguments.

8The reconsideration process at the Tribunal is a vital one. It allows the Tribunal to revisit and potentially remedy serious breaches of procedural fairness or significant errors of law that materially affect the outcome of a decision. Adjudicators presented with significant errors have a responsibility to revisit decisions and assess the requested relief. However, as Associate Chair Batty detailed in (J.R.) v. Coachman Ins. Co.¹, a party seeking this remedy has a high onus to meet. Reconsideration is only warranted in cases where the Tribunal made significant errors preventing a just outcome, where false evidence has been admitted or where genuinely new or discoverable evidence comes to light after the initial decision. Reconsideration is not an invitation to make the same arguments in the hope of securing a different outcome. I address the arguments in turn.

HST as an “expense”

9First, there’s the alleged error that the Tribunal made in determining that HST is not an “expense” subject to the attendant care limits. Dominion takes issue with para. 6 of the decision, where the Tribunal stated: “Section 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 the limit. Indeed, the Schedule as a whole is silent with respect to this issue.”

10As I understand it, Dominion submits that this was an error of law because s. 19 states that “attendant care benefits shall pay for all reasonable and necessary expenses,” and where a person has paid an expense, promised to pay an expense or is obligated to pay an expense, it is an incurred “expense” in respect of attendant care services under s. 3(7)(e). On this interpretation, Dominion submits that if HST is incurred by an insured person as an attendant care expense, it is therefore payable within the monthly limit of $6,000 and the policy limit of $1,000,000, as dictated by s. 19(3)(1)(ii).

11It is unclear where the legal error is in this paragraph. It is true that s. 19 does not address whether HST applicable to attendant care services is to be paid from within the benefit limit or outside of the limit. I also agree that the Schedule is silent with respect to this issue because it forms the basis of the parties’ dispute. On review of the Tribunal’s decision, I find no reason to interfere with the Tribunal’s reasoned analysis which addressed this very point at para. 17:

I acknowledge that the Schedule does not differentiate between types of expenses, however this does not lead me to conclude that HST is an “reasonable and necessary expense” as submitted by the respondent. If the legislation intended to include tax under the attendant care limit, it would have done so explicitly. The absence of “tax” in the provision leads me to conclude that it is not included in the attendant care limit and therefore not a “reasonable and necessary expense”. Indeed, to assume a broad reading of “reasonable and necessary expense”, one that includes HST, would run counter to intention and meaning of the same phrase in s. 16, along with the related concept of “reasonable fees” in s. 25(5). The Schedule should be presumed to express its intention consistently.

12I see no error in the Tribunal’s finding that interpreting HST as a tax and not as a “reasonable and necessary expense” is consistent with a plain reading of the Schedule. Further, I see no error in the Tribunal’s finding that because of the absence of “tax” or “HST” in the provision, it is reasonable to conclude that HST is not included in the attendant care limit. I also see no error in the Tribunal’s finding that including HST as an “expense” would run counter to other provisions in the Schedule. Indeed, this finding is supported by the volume of jurisprudence from the Tribunal determining same and, in my view, does not constitute a significant error of law.

FSCO Bulletins, “Surcharges” and the Attendant Care Guideline

13Next, I turn to Dominion’s three-fold allegation that the Tribunal erred in law at paras. 7-11 by relying on portions of non-binding FSCO Bulletins to support the decision; by not relying on other portions of the same FSCO Bulletins that do not support the decision; and by not following the FSCO Guideline dealing with attendant care service expenses, particularly the Attendant Care Hourly Rate Guideline applicable to the claim for attendant care expenses.

14I disagree with all three allegations that there was an error of law. To begin, while the Tribunal does journey through various FSCO Bulletins to highlight pertinent details of same in paras. 7-11 of the decision, I find no error of law in doing so and reject Dominion’s assertion that it was “relying” on these non-binding Bulletins. When reading the decision, these paragraphs are identified by the Tribunal because they form the basis of F.R.’s argument, not because the Tribunal relied on them in forming its decision. Paragraph 12, in turn, provides succinct support for this:

The applicant submits that these FSCO Guidelines and Bulletin provide clear direction: HST is to be paid outside of the benefit limits. The applicant acknowledges that these instruments do not specifically address attendant care benefits. However, he submits that the same public policy on which they are based should also apply to the issue in this case.

15The Tribunal’s substantive analysis, which does not begin until para. 16, never actually addresses any of these non-binding FSCO Bulletins—except for A-04/15, which I address below. Indeed, it is difficult to see how the Tribunal erred in relying on certain Bulletins when it does not even mention them outside of providing context for the applicant’s position on statutory interpretation.

16However, Dominion’s second assertion is true that the Tribunal did engage with the non-binding FSCO Bulletin A-04/15 in its analysis at para. 21 of the decision. Specifically, Dominion argues that “to the extent the Decision relied upon portions of Bulletin A-04/15, it was an error of law to depart from the clear language of the legislation by relying upon non-binding Bulletins applicable to unrelated benefits, which generally do not attract HST.” The Tribunal’s analysis of A-04/15 is as follows:

I have also taken FSCO Bulletin A-04/15 regarding HST into account as part of my analysis. I acknowledge that this bulletin is not binding on me, but I found it to be of some value. Although the bulletin does not expressly address attendant care benefits, its rationale is consistent with other FSCO Guidelines and Tribunal decisions which have consistently confirmed that HST is to be paid outside of the benefit limit with respect to other benefits under the Schedule. I agree with the applicant’s submission that public policy would demand that the attendant care benefit be treated in a similar fashion.

17I disagree with Dominion’s position that the Tribunal’s decision “departed from the clear language of the legislation” due to its reliance on Bulletin A-04/15. Based on para. 21, I find it clear that the Tribunal was aware that A-04/15 was non-binding but considered the Bulletin because it provided analogous and assistive rationale for the issue at hand. On review, I find no error of law that would result in a different outcome because the Tribunal’s determination was based on three separate findings it identified in the previous paragraphs, none of which concern A-04/15: at para 17, finding that “pursuant to s. 19 of the Schedule, the term “reasonable and necessary” expense does not include a tax such as HST”; at para. 18, finding “that interpreting HST as a tax and not a “reasonable and necessary expense” is consistent with a plain reading of the Schedule”; and at para. 20, finding that “interpreting the HST as a tax, and not as a “reasonable and necessary expense,” that falls within the attendant care benefit limits serves the Schedule’s consumer protection goal.”It is not an error of law to find value in non-binding material.

18Third, Dominion alleges that the Tribunal erred in not following the FSCO Attendant Care Hourly Rate Guideline for attendant care expenses. Specifically, it submits that “Superintendent’s Guideline No. 03/10 - Attendant Hourly Rate Guideline applicable to accidents between September 1, 2010 and June 1, 2014” confirms that insurers are “not liable to pay for expenses related to attendant care costs rendered to an insured person that exceed the maximum hourly rates.” Dominion submits that the Guideline is clear that insurers are not liable for any other charges—or what it emphasizes are “surcharges”—that have the result of increasing the effective hourly rate beyond what is payable. On this basis, Dominion urges that the Tribunal erred by in law by not following the binding Attendant Care Hourly Rate Guideline to find that HST is a related “surcharge”, which it defines, via Merriam-Webster, as “an additional tax, cost or impost.”

19On review, I agree with F.R. that it does not appear that Dominion presented this argument at the first-instance hearing but presents it anew on reconsideration. I would agree with F.R. that the reconsideration process is not the appropriate forum for allegations of error based on novel arguments that were not before the first-instance hearing adjudicator. Indeed, on review of the decision—which outlines Dominion’s position at para. 15—there is no mention of HST as a “surcharge” vis-à-vis the Guideline. Even if I were to accept that there is merit to Dominion’s contention that HST constitutes a “surcharge” payable within the attendant care limits—which, on the evidence, I do not—based on the authority Dominion cites in making its argument, I cannot accept that this is “new evidence” that could not have been reasonably obtained previously in order to satisfy Rule 18.2(d) for reconsideration. As noted, the purpose of reconsideration is to rectify errors of law that would result in a different outcome. Dominion does not identify the error of law made by the Tribunal that would alter the decision because this line of argument was not before the Tribunal. Accordingly, there can be no error of law.

Insured compensation and expert evidence

20Dominion submits the Tribunal erred in law by acknowledging, but then not following, the reasoning that the Insurance Act and the Schedule do not compensate an insured person for the entirety of their out of pocket expenses or losses following a motor vehicle accident. I disagree. First, it is well-established that the Tribunal may consider and acknowledge but not follow arguments put forward by either party. Second, I find Dominion points to no specific error of law. Regardless, I find the Tribunal was alive to Dominion’s concerns and wrestled with the insurer’s obligation to pay HST outside of the attendant care limits at para. 19 of the decision:

I also acknowledge that in many cases an insured person may not be indemnified for his or her actual attendant care expenses. An Assessment of Attendant Care Needs Form 1 can and often does set out attendant care services for catastrophically impaired insureds in excess of the monthly policy limit. This in no way binds an insurer to pay for attendant care benefits beyond the monthly policy limit. Rather, it leaves the insured with a financial obligation to pay his or her service provider for sums beyond the policy limit. This, however, has no impact on an insurers’ obligation to pay a tax, which I have found not to be part of the attendant care benefit limits.

21Finally, in its preamble for reconsideration, Dominion asserts—but then provides no substantive analysis on same—that the Tribunal erred in law when it “misapprehended the expert evidence of Mr. Michael Bussman in interpreting the Schedule.” Dominion does not direct the Tribunal to a specific error to warrant reconsideration. In any event, I find the Tribunal meaningfully engaged with the evidence of Mr. Bussman and assigned it weight at para. 23 of its decision:

I am not persuaded by the respondent’s argument in this regard. The issue before the Tribunal relates to the statutory interpretation of the Schedule. The respondent’s position is based in part on the evidence provided by Mr. Bussmann, who has specialized knowledge in the field of commodity tax law. Mr. Bussmann submitted an affidavit and was subject to cross-examination. Mr. Bussmann was tendered as an expert in order to assist the Tribunal with respect to CRA Guidance which may inform whether the limit payable by the insurer for attendant care benefits under the Schedule should be inclusive or exclusive of HST. I have accepted and qualified Mr. Bussmann as an expert with respect to CRA Guidance and have taken his evidence into account. That said, Ms. Bussmann testified that he did not have an opinion on whether HST is included within the attendant care benefits limit and had no view on the correct interpretation that should be applied. As a result, I did not find his evidence to be persuasive to this issue at hand.

CONCLUSION

22For these reasons, Dominion’s request for reconsideration is dismissed.

Footnotes

1. 12018 CanLII 39372 (ON LAT Reconsideration), at 30-31.