Citation: Robinson v. AIG Insurance, 2022 ONLAT 20-003795/AAB

Licence Appeal Tribunal File Number: 20-003795/AABSS

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:

Carrie Robinson

Applicant

and

AIG Insurance

Respondents

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Ashu Ismail, Joseph Campisi and Peter Murray

Counsel

For the Respondent:

Jason Frost, Counsel

HEARD by Way of Video September 2, November 9, December 10, 2021, March 1, 2, 3, 4, 7, 14, 2022

REASONS FOR DECISION AND ORDER

BACKROUND

1Carrie Robinson (“applicant”) was involved in an automobile accident on March 1, 2019 (“accident”). The applicant was a pedestrian crossing the street when she was struck and run over by a 2013 International 40S truck. The applicant sustained multitrauma including possible traumatic brain injury, rib fractures, pneumothorax in both lungs, complex pelvic fracture, sacral fracture, renal injury, lumbar spine transverse process fractures, spleen and liver injuries and cervical spine injuries and soft tissue injuries.

2The applicant underwent surgical procedures including open reduction and internal fixation surgery on her pelvis, cervical discectomy and fusion C5-C6, and was diagnosed with post-traumatic stenotic myelopathy, neuropathic pain, major depressive and anxiety disorders. The applicant spent a number of weeks in the hospital.

3The applicant sought certain benefits from AIG Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

4The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

PRELIMINARY ISSUE

Applicant’s Motion asking me to recuse myself from this hearing

5After the close of business on February 28, 2022 the applicant sent a motion to the Tribunal asking me to recuse myself from this hearing. I was unaware of this motion until after the hearing started the next morning, March 1, 2022. Later in the day on March 1, 2022 the Tribunal provided the applicant’s motion material to me for review.

6Although the respondent submitted that a motion of this seriousness should have been brought ten days ahead of time as required by Rule 15 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, effective October 2, 2017, amended February 7, 2019 (the “Rules”), the respondent agreed to respond to the motion orally. After oral submissions were made by both parties, the respondent was given until 4:00 p.m. on March 1, 2022 to provide responding material and the applicant was given until 5:00 p.m. on March 1, 2022 to provide reply material.

Applicant’s position on the recusal motion

7Applicant’s counsel submits that there are two reasons for the requested recusal. Firstly, the applicant submits I have denied the applicant’s ability to “add witnesses to the hearing including the family doctor” and counsel does not believe “the client will get a fair shot at receiving the benefits she seeks without the support of viva voce evidence from the recommending health practitioners”. Secondly, following a review of all my reported AABS decisions, counsel has determined that my history of decision making illustrates a bias or prejudice, “a leaning, inclination, bent or predisposition towards one side or another or a particular result”² which requires my recusal.

8The applicant submits that any informed person reviewing the matter would conclude that I am more likely than not to rule in favour of the insurer based on counsel’s review of my handling of the applicant’s case along with my track record which the applicant submits overwhelmingly favours insurers. The applicant relies on the principle that there must be confidence in the integrity of the administration of justice – that justice must not only be done, but seen to be done.

9Attached to the notice of motion is a document entitled “VC FARLAM Decision Analysis by Campisi LLP” which lists 165 decisions with citations and a pie chart entitled “Decision Balance by Percentage” dividing my decisions into “90% total insurer favored, 5% total insured favored, 5% total mixed” (the “decision analysis”).

10In oral submissions, applicant’s counsel said: “so if this information was to be put in the newspaper, 90 to 95 percent, would the public have confidence in the Licence Appeal Tribunal to adjudicate fairly on behalf of insureds?³….…perhaps it would be important for the Tribunal to know…I myself, have taken matters to the Divisional Court and my success rate is 100 percent⁴….There’s already a ground, a very stable ground to appeal any decision.”⁵

Respondent’s position on the recusal motion

11The respondent submits that there is no basis to find a reasonable apprehension of bias or bias. The respondent noted this is the 18th motion brought during this proceeding. The respondent submits that there is no evidence that my history of decision-making at the Tribunal is unusual or favours insurers, as alleged, no evidence that the 165 cases are relevant or inconsistent with other Tribunal member’s decisions. My previous decisions establish nothing more than when an applicant fails to adduce the necessary evidence, the matter will be dismissed. This does not create an apprehension of bias. Every decision maker will approach the matter before them and make decision based on the evidence and arguments presented. There is no evidence how many of my decision involved the MIG. There is no evidence that any of my 165 decisions were decided incorrectly or unfairly and, without this, the applicant’s statistics are meaningless.

12With respect to my ruling on the applicant’s motion filed two days before the hearing was to start, seeking to add 14 witnesses, the respondent submits that the applicant did not meet the onus to establish additional witnesses were needed and the motion was brought too late. The dismissal of this motion to add witnesses was reasonable and consistent with the Tribunal’s Rules. This recusal motion is brought for strategic purposes, seeking to effectively appeal prior orders which are not otherwise appealable at this time.

13Further, there is no material filed to explain why the applicant waited some six months after this hearing started and after results from several motions to now allege bias. The Tribunal has said before, in a case where the applicant was represented by this applicant’s law firm, that recusal motions should be brought as soon as the facts giving rise to the alleged reasonable apprehension of bias are available.⁶ To an informed person, viewing the matter realistically and practically, it would appear that this motion is part of a strategy to in effect appeal prior decisions and to delay the hearing of this matter. The Ontario Court of Appeal has confirmed that the ”reasonableness of a ruling is relevant to the question of whether there is a reasonable apprehension of bias. Absent other factors, it is nonsensical to suggest that a reasonably conducted hearing or a reasonable ruling can give rise to an apprehension of bias.”⁷ The respondent seeks a dismissal of the recusal motion because it is vexatious and costs in the amount of $500.00

The Legal Test for Recusal

14The test used to assess whether a reasonable apprehension of bias exists was set out by the Supreme Court of Canada in Commission for Justice and Liberty v. National Energy Board⁸ as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not [the decision-maker], whether consciously or unconsciously would not decide the matter fairly?

15The Ontario Court of Appeal⁹ has said: “[t]here is one final, essential element that informs this analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one.”

16It is well established that the presumption of impartiality and integrity applies to administrative decision makers including this Tribunal.

Reasons for Denial of Applicant’s Recusal Motion

17The recusal motion was denied orally by me on March 2, 2022 for the following reasons.

18Firstly, the applicant’s motion brought on the eve of the hearing to add 14 witnesses, was fully, fairly and impartially considered by me and denied for the reasons already delivered in writing. Although the applicant submits I have denied the applicant’s ability to “add witnesses to the hearing including the family doctor”, this submission is not supported by the evidence. To the contrary, this submission gives the impression that applicant’s counsel is not entirely familiar with who the applicant’s physicians are.

19In the applicant’s motion to add witnesses, the applicant listed Dr. Ahmed as the applicant’s family physician. However, the applicant’s 1251 page medical brief identifies the applicant’s family doctor as Dr. Kazdan. There are documents written by and referencing Dr. Kazdan. Applicant’s counsel did not request to call Dr. Kazdan as a witness in her motion to add witnesses, or otherwise, and in the end, it was not necessary for the hearing of this matter given the records filed involving Dr. Kazdan.

20The applicant’s dissatisfaction with my ruling on the motion to introduce more witnesses is not a basis for establishing a reasonable apprehension of bias or actual bias. The applicant has failed to establish on this recusal motion that my ruling on the previous motion was unreasonable or there is any reason to doubt my impartiality in denying it. As a result, as the court has said, “absent other factors, it is nonsensical to suggest that a reasonably conducted hearing or a reasonable ruling can give rise to an apprehension of bias”.¹⁰

21Secondly, the other factor being suggested by the applicant, specifically previous decisions made by me in other proceedings, fails to establish an apprehension of bias. Although Rule 15.1(c) requires the moving party to set out the evidence in support of the motion, there was no affidavit or other sworn evidence filed on the motion. The decision analysis is unsworn, not subject to cross-examination, unsupported by any statistical detail or explanation of how it was arrived at, and referenced to irrelevant, unverified information taken from a public source. Even if the decision analysis had been proven to be correct, which I find it has not, there is no evidence that any of my 165 decisions were decided incorrectly or unfairly and, without this, the applicant’s decision analysis is not a basis for establishing a reasonable apprehension of bias, let alone actual bias. It is the merits of each matter before me as adjudicator that is relevant, not what may or may not have occurred in other proceedings.

22I am not satisfied that the applicant has met the onus of establishing a reasonable apprehension of bias or actual bias. This is a high bar and the applicant has not met it. My decision on costs of this motion is below.

ISSUES

23The issues to be decided in this hearing are:

i. Is the applicant entitled to attendant care benefits (“ACB”) of $6,000.00 per month from May 15, 2019 to date and ongoing?

ii. Is the applicant entitled to $1,779.60 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) submitted on January 8, 2020 and denied on January 20, 2020?

iii. Is the applicant entitled to $2,862.93 for an assistive smart device and attendant care service recommended by Invisible Care in a treatment plan (OCF-18) submitted on May 12, 2020 and denied on May 27, 2020?

iv. Is the applicant entitled to $1,333.38 ($1,913.72 less $580.34 approved) for a cell phone and air conditioner unit recommended by Innovative Health Care Solutions in a treatment plan (OCF-18) submitted on July 9, 2020 and partially approved on July 22, 2020?

v. Is the applicant entitled to $5,899.80 for a mattress, pillows, etc. recommended by Innovative Health Care Solutions in a treatment plan (OCF-18) submitted on July 17, 2020 and denied on July 30, 2020?

vi. Is the applicant entitled to $2,210.33 for devices (less approved amount of $49.99) in a treatment plan (OCF-18) dated May 26, 2021?¹¹

vii. Is the applicant entitled to $6,984.08 (less the partially approved amount from June 2, 2021) for physiotherapy and massage treatment as recommended by Physiotherapy Professionals in a treatment plan (OCF-18) dated May 14, 2021?

viii. Is the applicant entitled to $1,400.00 for counselling and document preparation by Milan Unarket Medicine Professional Corporation in a treatment plan (OCF-18) denied on January 20, 2021?

ix. Is the applicant entitled to $16,018.30 for registered social work sessions provided by Genesis Community Rehabilitation in a treatment plan (OCF-18) dated February 16, 2021?

x. Is the applicant entitled to $1,499.00 for occupational therapy and case management services provided by Innovative Occupational Therapy Services in a treatment plan (OCF-18) denied on February 11, 2021?

xi. Is the applicant entitled to $1,012.50 for social work services provided by Critical Trauma Therapy in a treatment plan (OCF-18) denied on February 11, 2021?

xii. Is the applicant entitled to a treatment plan (OCF-18) prepared by Dr. Rick Thomson, optometrist, denied on December 15, 2020?¹²

xiii. Is the applicant entitled to $17,636.42 for occupational therapy services recommended by Innovative Occupational Therapy Services in a treatment plan (OCF-18) submitted on October 1, 2020 and denied on October 15, 2020?

xiv. Is the applicant entitled to $2,200.00 for an OCF-18 prepared by Critical Trauma Therapy dated September 17, 2020?

xv. Is the applicant entitled to $1,400.00 for an OCF-18 prepared by Dr. Milan Unarket dated September 22, 2020?

xvi. Is the applicant entitled to $5,766.00 (less the partially amount of $4,476.00) with $1,290.00 remaining in dispute, for social work services in an OCF-18 dated August 2, 2021?¹³

xvii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xviii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

24I find that the applicant is not entitled to any payment for ACB, in addition to the amounts already paid by the respondent, for the period May 15, 2019 to date and ongoing because she has not proven on a balance of probabilities that any ACB was incurred in accordance with the Schedule. I also decline to use my discretion under s. 3(8) of the Schedule to deem ACB expenses incurred. No award is made. As no benefits are payable, no interest is payable. No costs are awarded to the applicant. Costs are awarded to the respondent payable by the applicant in the amount of $500.00.

LAW

25Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident provided by an aide or attendant (“ACB”). Section 3(7) provides further guidance on when an expense is incurred:

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.

26Section 42(1) provides that an application for ACB must be in the form of, and contain the information required to be provided in, the document entitled Assessment of Attendant Care Needs (“Form-1”). Section 42(5) provides that an insurer is not required to pay an expense for ACB which is incurred prior to a Form 1 being submitted to the insurer.

27The onus is on the applicant to prove entitlement to ACB and that the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities.

ANALYSIS

Is the Applicant Entitled to ACB at the rate of $6,000.00 per month from May 15, 2019 to date and ongoing?

28Section 19 of the Schedule provides that ACB shall be paid for all reasonable and necessary expenses that are incurred as a result of the accident. The onus is on the applicant to show that the ACB is reasonable and necessary and to establish that it has been incurred, or should be deemed incurred under s. 3(8) of the Schedule.

29In summary, the applicant submits that the amount claimed is reasonable and necessary. Further, the applicant admits that the ACB has not been incurred but submits that the ACB should be deemed incurred under s. 3(8) of the Schedule. The applicant relies on the applicant’s medical and other records filed at this hearing and particularly on the assessment of attendant care needs Form 1 and report dated May 15, 2019 completed by occupational therapist (“OT”) Brett Lunan (the “Lunan Form 1”) and the reports and Form 1 dated June 15, 2020 completed by Chelsea Breckels, OT (the “Breckles Form 1”).

30In summary, the respondent submits that there is no evidence that the claimed amounts are reasonable, necessary or incurred. The respondent submits it has paid more than required in May, July and November, 2019 but does not claim repayment. Instead, the respondent submits the fact that past claims have been overpaid confirms no amounts have been unreasonably withheld. The respondent relies on the documents it filed at this hearing and particularly on the reports and Form 1 dated November 5, 2020 completed by its OT assessor Loreta Stanulis-Duz (the “Stanulis-Duz Form 1”).

Is ACB of $6,000.00 per month from May 15, 2019 to date and ongoing reasonable and necessary?

31The applicant, her former boyfriend Rob Wakeling and her OT Chelsea Breckels all testified about the applicant’s need for ABC.

32The respondent acknowledged at the hearing that the applicant was seriously injured in the accident and required significant assistance with personal care once discharged from hospital. In April, 2020 the respondent determined that the applicant’s injuries were catastrophic.

33The real dispute between the parties is whether the applicant is entitled to any payment for ACB, in addition to the amounts already paid by the respondent, for the period May 15, 2019 to date and ongoing.

Was ACB Incurred by the Applicant?

ACB incurred by the applicant and paid – May, 2019 to February, 2020

34This period starts when the applicant left the hospital and ends one year post-accident. For this period, I find that the applicant has failed to establish that she incurred ACB in the amount of $6,000.00 per month or in any amount in excess of the amount the respondent has already paid. In December, 2019, ten months post-accident, no amount of ACB was incurred at all.

35Although s. 19 puts the onus on the applicant to establish how much ACB she incurred, the applicant did not bring forward evidence at the hearing to establish this. In closing submissions, the applicant submitted that she has “…never framed the attendant care issues as being one to determine what has been incurred, and unpaid by the insurer” but the issue has always been framed as the “applicant requires at least $6,000.00 of monthly care since the day she was run over by a truck…”

36After the Lunan Form 1 submitted, the respondent approved up to $3,000.00 monthly and paid ACB incurred and invoiced by the applicant’s ACB providers as follows:

Month ACB Incurred ACB Paid

May, 2019 $3,281.52¹⁴ $3,281.52

June, 2019 $1,265.60 $1,265.60

July, 2019 $3,109.76 $3,109.76

Aug, 2019 $1,048.64 $1,048.64

Sept,2019 $1,084.80 $1,084.80

Oct, 2019 $2,914.50 $2,914.50

Nov, 2019 $3,254.50 $3,254.50

Dec, 2019¹⁵ $0.00 $0.00

Jan, 2020 $2,892.80 $2,892.80

Feb, 2020 $2,567.36 $2,567.36¹⁶

37Given that the respondent asked for more information on some of the claims submissions and paid after receipt of the required information, I find that the monthly payments were made without any material delay and in accordance with the provisions of ss. 32(10), 46.2, 19, and 42 of the Schedule.

No claim for non-professional ACB established

38The applicant has not established any claims for incurred non-professional ACB from friends or family members in accordance with s. 19.

39Although Rob Wakeling, the applicant’s boyfriend in 2020 and 2021, and the applicant testified that he had assisted the applicant with some personal care, medication, errands, household tasks and meal preparation, Mr. Wakeling testified that there was no agreement the applicant would pay him for the help he gave her, he didn’t expect to be paid for those services, he didn’t keep track of days and times. Mr. Wakeling testified he didn’t help the applicant every day.

40Similarly, the applicant testified that David Hunter, from whom she rents a room, provides some assistance to her with parking tickets, driving her to appointments, and waking her up to turn off her alarm clock. However, the applicant testified that she did not keep track of how Mr. Hunter helped her and she has not agreed to pay him for his help.

41The applicant also testified that she received some assistance from her fifteen year old daughter in 2020 and 2021, but did not testify that there was any agreement to pay her daughter for this. No records of dates and times were provided regarding assistance from the applicant’s daughter.

ACB incurred by the applicant and paid – March, 2020 to June, 2020

42For this period, I find that the applicant has failed to establish that she incurred ACB in the amount of $6,000.00 per month or in any amount in excess of the amount the respondent has already paid.

43The respondent’s independent adjuster Gordon Faber, an adjuster for 33 years, testified that there are no unpaid, incurred ACB expenses in the applicant’s file. Mr. Faber’s evidence on this point was not challenged by the applicant in cross-examination and I accept it.

ACB incurred by the applicant and paid – July, 2020 to November, 2020

44For this period, I find that the applicant has failed to establish that she incurred ACB in the amount of $6,000.00 per month or in any amount in excess of the amount the respondent has already paid.

45The respondent approved up to $6,000.00 per month for incurred ACB in an explanation of benefits (“EOB”) dated June 24, 2020 after receiving the Breckels Form 1 dated June 15, 2020, in the amount of $10,554.17. This EOB gives the “reasons why expenses are not payable or being stopped: Fee exceeds maximum allowed” and additional comments are “the maximum payable for a CAT injury for attendant care is $6,000.00 per month.”

46I find based on the records before me that the applicant did not receive ACB totalling $6,000.00 in any month after $6,000.00 a month was approved in June, 2020. In September, the applicant received ACB totalling $5,964.36. However, the ACB treatment provider was invoicing at an hourly rate of $32.00 and not the maximum hourly rates of $14.90, $14.00 and $21.00.¹⁷ In October, 2020 the applicant received ACB totalling $3,881.32.

47Effective November 12, 2020, the respondent notified the applicant, her counsel and the ACB provider that it had reduced the monthly approved amount of ACB to $1,928.69 based on the Stanilus-Duz Form 1 dated November 5, 2020.

ACB incurred by the applicant and paid – November, 2020 to June, 2021 and ongoing

48For this period, I find that the applicant has failed to establish that she incurred ACB in the amount of $6,000.00 per month or in any amount in excess of the amount the respondent has already paid.

49I find that the applicant did not consume the ACB even in the reduced amount established by the respondent. In April, 2021, for example, the respondent paid the ACB service provider $2,003.49 even though it had reduced the monthly amount of ACB to $1,928.69 some months earlier. The respondent submits that the actually incurred amount for April, 2021 is $1,212.00 but it overpaid by $790.50 despite lack of details of the nature and duration of the services provided.

50Again, Mr. Faber testified that there are no unpaid, incurred ACB expenses in the applicant’s file. Ms. Breckels testified about ACB services she believes the applicant should have but her testimony is not relevant as these services were not incurred.

Should ACB in the amount of $6,000.00 per month from May 15, 2019 onward, less amounts paid by the respondent, be “deemed incurred”?

51Section 3(7)(e) of the Schedule provides that an expense is not incurred unless the insured has received the goods or services, or has paid the expense or has promised to pay or is obligated to pay.

52Here, the applicant concedes that she has not incurred expenses for ACB over and above the amount already paid by the respondent as required by s. 3(7)(e), but requests that the ACB expenses be deemed incurred. The applicant submits that she did not know that ACB over and above that paid by the respondent could be claimed, she did not have the means to incur these amounts.

53The respondent submits that it did not unreasonably delay or withhold benefits but it relied on its OT assessment of Ms. Stanilus-Duz.

54Under s. 3(8) of the Schedule, I may exercise my discretion to deem an expense to have been incurred if I find that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense. Here, the applicant has the onus of proving on a balance of probabilities that the respondent unreasonably withheld or delayed payment of ACB and because of the unreasonable withholding or delayed payment, she could not incur the ACB.

55The respondent relies on guidance that the Ontario Court of Appeal has given that, in order to succeed in having additional ACB, not incurred, be deemed incurred under s. 3(8), the applicant must establish three criteria:

a. payment for the benefit in issue must be payable under the Schedule;

b. the insurer must have “withheld or delayed payment”; and

c. the withholding or delaying of payment must have been unreasonable.¹⁸

56The Court confirmed that

“The focus of s. 3(8) is primarily on the actions of the insurer. An insured’s need for the services or benefits, or her inability to pay for those services or benefits on her own, cannot justify the deeming of the expense to have occurred under s. 3(8)….the trial judge’s assessment of the fairness of the scheme for payment of expenses established under the SABS-2010 is irrelevant to whether the insurer acted unreasonably in withholding or delaying payments. The scheme is predicated on the repayment of expenses “incurred” within the very specific definition provided in s. 3(7)(e). The scheme does not create entitlement to payment based on need or a damages-like assessment of the insured’s entitlements. Whatever the merits of the policy reflected in the current scheme, the operation of that policy in a given case does not assist in determining whether an insurer acted unreasonably in withholding payments.”¹⁹

57This decision is binding on me. Applying the above factors and reasoning, I find the applicant has not satisfied the test in s. 3(8) of the Schedule, and I decline to exercise my discretion to deem ACB incurred from May 15, 2019 to date. As a result, an ACB greater than the amount the respondent has already paid is not payable to the applicant for the period claimed. My reasons are as follows.

a. payment for the benefit in issue must be payable under the Schedule

58I find that ACB is a benefit to which the applicant is entitled given that the respondent has accepted the applicant’s injuries from the accident as catastrophic.

b. the insurer must have “withheld or delayed payment”

59I have already found that the monthly payments from May, 2019 to February, 2020 were made without any unreasonable delay. I further find that the payments from March, 2020 to date were not unreasonably delayed based on the documents in evidence before me.

60Although the applicant and Ms. Breckels testified about the applicant’s services being reduced because of the respondent’s refusal to fund a larger amount of ACB, the statutory scheme “…does not create entitlement to payment based on need or a damages-like assessment of the insured’s entitlements” as the Court has said.

61Further, I have found that there has not been a month in which the applicant consumed ACB exceeding the amount approved by the respondent except in May ($281.52), July ($109.76) and November ($254.40), 2019. These overages were paid by the respondent. All amounts for incurred ACB were paid without delay and no amounts were withheld as confirmed by Mr. Faber in his testimony. As the Tribunal has said before, approval of a maximum monthly amount of ACB does not establish entitlement absent proof of what services were incurred.²⁰

c. the withholding or delaying of payment must have been unreasonable

62I have found that monthly payments from May, 2019 to date were made in a timely manner and there was no withholding or delaying of payment that was unreasonable.

63That the respondent relied on the Stanilus-Duz Form 1 is not unreasonable and does not establish that the respondent unreasonably withheld or delayed payment of ACB under s. 3(8) of the Schedule. Although the applicant submits that the Stanilus-Duz Form 1 is lacking, given the credentials, experience and personal assessment Ms. Stanilus-Duz performed, I do not find the respondent’s reliance on her opinion of ACB to be unreasonable.

64I find unpersuasive the applicant’s submissions that she did not know that ACB over and above that paid by the respondent could be claimed and she did not have the means to incur these amounts. The applicant was represented by counsel throughout this proceeding who were available to advise the applicant accordingly. The explanatory correspondence from the respondent to the applicant about ACB was clear. Under the Schedule, the onus is on the applicant to established that ACB was incurred or should be deemed incurred and the means of the applicant is not relevant absent unreasonable withholding or delaying of payment which I have not found here.

Quantum of ACB

65The applicant submits that one of the issues that should be determined at this hearing is the quantum of the ACB to which the applicant is entitled.

66I find that the applicant is not entitled to any payment for ACB, in addition to the amounts already paid by the respondent, for the period May 15, 2019 to date and ongoing because she has not proven on a balance of probabilities that any ACB was incurred in accordance with the Schedule or that ACB should be deemed incurred under s. 3(8). This is the applicant’s burden and she has failed to meet it.

Award

67Section 10 of Regulation 664 provides that the Tribunal may make an award if the respondent has unreasonably withheld or delayed payments.

68In summary, the applicant submits that she is entitled to a 50% award under s. 10 due to the respondent’s unfounded bad faith denial of ACB in breach of the respondent’s breach of duty of good faith to the applicant.

69The respondent submits that an award is not called for because it adjusted the applicant’s claims in accordance with the findings of its independent OT assessor, paid within, or sometimes in excess of, the incurred ACB based on invoicing submitted to it.

70I make no award. On the evidence before me, I find that payment was not unreasonably withheld or delayed by the respondent.

71The respondent accepted the applicant as catastrophically impaired when presented with the appropriate medical evidence. The respondent reduced the applicant’s ACB after it received the Stanilus-Duz Form 1 which was not unreasonable given the information it received from Ms. Stanilus-Duz and the other information on file. Disagreement with the amount of ACB claimed by the applicant based on the claims submitted, expenses incurred and differing professional opinions does not constitute unreasonable withholding or delaying of payment.

Interest

72As no benefit is payable, no interest is payable.

Applicant’s Request for Costs

73Both parties request costs of this proceeding from the other party. In summary, both parties allege that the conduct of the other party has been unreasonable, frivolous, vexatious or in bad faith within the meaning of Rule 19 of the Rules.

74The applicant submits that this hearing was unnecessary, that the respondent knew costs are not awarded often by the Tribunal and the respondent “tried to take advantage of their unequal bargaining position to force Carrie to spend money on a hearing that they knew she didn’t have”, there was no real defence in this case, the applicant and her witnesses were not challenged, the respondent relied on their “deficient OT IE report” knowing that it was deficient and has been unable to justify its OT report at the hearing. The applicant submits that the respondent “could have avoided this hearing if they simply recognized the pleas from the treating team. They should now pay for all of Carrie’s hearing costs.”

75The respondent submits that the hearing was delayed and prolonged as a result of the 19 motions brought by the applicant. Further, the respondent submits that the applicant unilaterally conducted a written cross-examination of the respondent’s OT assessor prior to commencement of the oral hearing, failed to provide information and productions requested by the respondent and withdrew all issues in dispute except ACB on March 2, 2022. The respondent requests cost of “at least $2,500.00 payable by the applicant”.

76Although the issue of costs was not referred to me for determination by the Tribunal’s case conference report and order, I will determine it because both parties have addressed this issue in their submissions.

77I am not satisfied that the respondent’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Rules. There is no evidence before me that the respondent “tried to take advantage of their unequal bargaining position to force Carrie to spend money on a hearing that they knew she didn’t have”. The respondent had, as it turned out, a reasonable basis for the legal position it took in this hearing. The respondent responded to the evidence presented by the applicant and her witnesses as it saw fit. There is nothing unreasonable, frivolous, vexatious or bad faith in the respondent relying on its IE assessor’s opinion even though the applicant viewed this report as “deficient” or in defending its position in this hearing resulting from the applicant’s proceeding.

78Again, the respondent accepted the applicant as catastrophically impaired when presented with the appropriate medical evidence, paid, and in some months overpaid, the amount of ACB incurred. The respondent reduced the applicant’s ACB based on the opinion of it’s OT assessor which I find was not unreasonable given the information it received from Ms. Stanilus-Duz and the other information on file. The respondent’s disagreement with the amount of ACB claimed by the applicant based on the claims submitted, expenses incurred and differing professional opinions does warrant a cost award.

79No costs are awarded to the applicant.

Respondent’s Request for Costs

80I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Rules. This is a high bar to meet.

81Although it is concerning that applicant’s counsel would call the respondent’s expert witness at her home and then write to her to “challenge” her report when Rule 10.4 of the Rules already provides a procedure for one counsel to challenge the expert report of the other party’s expert, in this particular case, I do not view this as rising to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19.

82No costs are awarded to the respondent except in respect of the applicant’s motions, dealt with separately below.

Respondent’s Request for Costs of Motions

83The respondent requests costs in the amount of $500.00 for each of the following motions brought by the applicant:

a. motion for productions filed August 27, 2021;

b. motion to add witnesses filed August 31, 2021;

c. motion to remove the respondents counsel as counsel of record filed August 27, 2021;

d. implied undertakings motion filed November 9, 2021; and

e. motion filed February 28, 2022 asking me to recuse myself as adjudicator.

84The applicant was unsuccessful on all five of these motions for reasons which have been given. My decision on costs of all of these motions was reserved to the end of the hearing.

85The applicant submits that costs should not be awarded. In reply, the applicant submits that “motions to add issues or witnesses do not appear appropriate for cost considerations under the current regime”, the motion to remove respondent’s counsel was “completely appropriate”, the motion asking me to recuse myself was “brought as soon as the data was compiled and instructions obtained from the client,…the delay of a day was at the behest of the Tribunal, and the applicant reduced the relief sought in order to fit the hearing in the remaining time allotted.”

86All of the above motions were brought without sufficient notice as required by Rule 15 of the Rules, and too late in the proceedings, specifically on the eve of or during the hearing. As a result, I am satisfied that the applicant has acted unreasonably in the bringing of all of these motions within the meaning of Rule 19 of the Rules. Costs of $100.00 on each of the above described five motions are payable by the applicant to the respondent for a total of $500.00.

ORDER

87For the reasons outlined above, I find that the applicant is not entitled to any payment for ACB, in addition to the amounts already paid by the respondent, for the period May 15, 2019 to date and ongoing because she has not proven on a balance of probabilities that any ACB was incurred in accordance with the Schedule. I also decline to use my discretion under s. 3(8) of the Schedule to deem ACB expenses incurred. No award is made. As no benefits are payable, no interest is payable. No costs are awarded to the applicant. Costs are awarded to the respondent payable by the applicant in the amount of $500.00.

Released: May 4, 2022

__________________________

Avril A. Farlam, Vice Chair

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 SCR 259 at para. 58 (S.C.C).
3. 3Transcript of the Hearing on March 1, 2022, pg. 9, lines 6-10.
4. 4Transcript of the Hearing on March 1, 2022, pg. 25, lines 12-15.
5. 5Transcript of the Hearing on March 1, 2022, pg. 28, lines 13-14.
6. 6L.D. v. Gore Mutual Insurance Company, 2020 CanLII 98747 (ON LAT) at para. 6 .
7. 7Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (C.A.) at para 54.
8. 8Commission for Justice and Liberty v. National Energy Board, 1976 CanLII 2, [1978] 1 SCR 369 at p. 394 (S.C.C.).
9. 9Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (C.A.) at para 44.
10. 10Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (C.A.) at para 54.
11. 11This issue was added by the Tribunal’s Order issued July 21, 2021.
12. 12This issue was added by the Tribunal’s Order issued January 25, 2021.
13. 13On March 2, 2022, the applicant withdrew her request for all benefits except ACB.
14. 14Amounts are inclusive of HST unless otherwise noted.
15. 15No amount invoiced for ACB in December, 2019 on the evidence before me.
16. 16This amount was paid in February, 2020 despite the respondent reducing the ACB to $1,928.36.
17. 17The applicant is entitled to ACB that is incurred to the extent of the maximum approved hourly rate, not any agreed-upon market rate: Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 at paras. 30-42 (Div.Ct.). Maximum hourly rates are prescribed in the Attendant Care Hourly Rate Guideline: https://www.fsco.gov.on.ca/en/auto/superinetendent guidelines/Pages/guideline-01-18.aspx and Form 1.
18. 18Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 at para 32, 33 and 42 (C.A.).
19. 19Ibid., paras 33 and 42. Although s. 3(8) of the SABS-2010 was worded slightly differently than in the current Schedule, and the reference is to “a Court or arbitrator” instead of the Tribunal, the operative words of the section are the same: “If in a dispute to which sections 279 to 293 of the Act apply, a Court or arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Court or arbitrator may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.”
20. 20See for example: L. v. Economical Insurance Company, 2021 CanLII 117495 (ON LAT) at paras 35 and 36 .```