Salome Gichuki v. TD Insurance Meloche Monnex, 2022 CanLII 73111

20-004631/AABS - R

RECONSIDERATION DECISION

Before:

Theresa McGee, Vice-Chair

Licence Appeal Tribunal File Number:

20-004631/AABS

Case Name:

Salome Gichuki v. TD Insurance Meloche Monnex

Written Submissions by:

For the Applicant:

Baldeep Virk, Counsel

For the Respondent:

Jeffrey E. Naganobu, Counsel

OVERVIEW

1The applicant requests reconsideration of a decision dated April 19, 2022 (the “decision”). In the decision, the Licence Appeal Tribunal (the “Tribunal”) ordered the respondent to reimburse the applicant for 33 hours of attendant care expenses incurred between November 2020 and February 2021 at an hourly rate of $14.00 for a total of $462.00.

2The applicant seeks reconsideration on the grounds that the Tribunal made errors of fact and law and would have reached a different outcome if the errors had not been made. The applicant also submits that the Tribunal acted outside its jurisdiction.

RESULT

3The applicant has not established any factual or legal error in the decision, nor any excess of the Tribunal’s jurisdiction. The request for reconsideration is dismissed.

ANALYSIS

4The grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of 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 likely affected the result; or

d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

5The applicant asserts several legal and factual errors in her submissions. The asserted errors can be summarized as follows:

i. the Tribunal misinterpreted s. 42(5) of the Schedule as a bar against retroactive attendant care claims made before the submission of a Form-1;

ii. the Tribunal failed to consider the impossibility and impracticality the applicant faced in bringing an attendant care claim before she submitted her Form-1;

iii. the Tribunal did not consider corroborative evidence that the applicant should have been removed from the Minor Injury Guideline sooner than she was and that she had incurred attendant care expenses;

iv. the Schedule does not require detailed timesheets as proof of incurred expenses, and that the applicant met the definition of incurred expenses by promising to pay;

v. the Tribunal should have given greater weight to the letter of Ms. Kariuki because it was uncontradicted; and

vi. the Tribunal failed to consider her submission that it would have been onerous for her to document time spent receiving emotional support.

6The applicant also submits that the Tribunal acted outside of its jurisdiction by reducing the hourly rate payable for services incurred to match the statutory limits set out in the Attendant Care Hourly Rate Guideline (Superintendent’s Guideline No. 03/17).

The applicant has failed to identify any factual or legal error

7The applicant submits that s. 42(5) of the Schedule does not, as the Tribunal found, bar attendant care benefit claims made before the submissions of a Form 1 (Assessment of Attendant Care Needs). The subsection reads as follows:

An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with this section is submitted to the insurer.

8The applicant submits that the use of the word “may” in the provision means that the payment of attendant care benefits before a Form 1 is submitted is discretionary. Therefore, the applicant submits, it is an error of law to state that the provision bars attendant care claims made before the submission of a Form 1.

9I disagree. First, with respect, the applicant misapprehends the effect of the provision. To the extent that the Schedule establishes the “discretionary” payment of benefits, that discretion lies with the insurer. It is not open to the Tribunal to order payment of an attendant care benefit claimed before the Form 1 submission date (except in the circumstances of impossibility/impracticality addressed in the case law, which are discussed at length in the decision). While an insurer under s. 42(5) “may” pay the benefit, the same does not hold true for the Tribunal. On a plain reading, the provision is clear that an insurer is “may, but is not required, to pay” the benefit (emphasis added). The Tribunal has no discretion to order payment of the benefit absent the exceptional circumstances set out in the case law. The Divisional Court very recently reaffirmed these principles in Morrissey v. Wawanesa Insurance Company, 2022 ONSC 4398.

10The applicant submits that the Tribunal’s interpretation of s. 42(5) leads to an absurd result; that claims for retroactive attendant care following a Minor Injury Guideline redetermination should be treated the same as claims made before a catastrophic impairment determination in accordance with the Court of Appeal’s decision in Tomec v. Economical Mutual Insurance Company;[^1] and that the Tribunal’s decision runs contrary to the remedial and consumer protection purposes of the Schedule.

11I will address each of these submissions in turn.

12First, the absurd result asserted by the applicant is that insurers will delay removing an insured from the Minor Injury Guideline simply to unreasonably withhold payment of attendant care benefits. One could make the same observation about the Schedule’s numerous exclusions of coverage for claimants who suffer a predominantly minor injury: that insurers may unreasonably delay removing a claimant from the Minor Injury Guideline to avoid payment of benefits. Nevertheless, the Schedule reveals a clear legislative intent to restrict entitlement to certain categories of benefits for claimants who fall under the Minor Injury Guideline. The appropriate remedy for unreasonable withholding or delay of benefits by an insurer is an award under Regulation 664. The applicant directs me to the definition of an “absurd result” set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), namely that:

an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.²

13Interpreting s. 42(5) as the Tribunal did in the decision does not lead to “ridiculous or frivolous consequences”: restricting access to a benefit to a class of claimants with more severe impairments is a reasonable policy choice consistent with the overarching statutory objective of controlling automobile insurance costs. Such an interpretation is not “extremely unreasonable or inequitable”: it ensures that those with the most severe impairments have access to enhanced benefits. If a person’s impairments initially fall within the definition of a minor injury but their condition later deteriorates, they gain access to enhanced benefits (including attendant care). Interpreting s. 42(5) as a bar is not “illogical and incoherent” and is not “incompatible with other provisions” of the legislation: the Schedule imposes numerous restrictions and exclusions on those with impairments covered by the Minor Injury Guideline. The applicant’s dissatisfaction with the Tribunal’s interpretation of the Schedule is not a basis for reconsideration.

14The present case is clearly distinguishable from Tomec. In Tomec, the Court of Appeal dealt with the limitation period for disputing a denial of benefits, catastrophic impairment, and the application of the discoverability principle to claims made under s. 280 of the Insurance Act. This case does not engage limitations issues. There is no legal error in failing to follow or apply Tomec here because the subject matter of the decision is entirely distinct from the present dispute. Nowhere does the Court of Appeal’s analysis intersect with the issues in this case.

15Finally, the applicant’s submissions on the remedial and consumer protection purpose of the Schedule appear to rest on a narrow interpretation of that purpose. Consumer protection legislation does not dictate outcomes favourable to individual consumers in all cases. The Court of Appeal has identified policy objectives such as stabilizing automobile insurance premiums as integral to the Schedule’s consumer protection purpose: see Aviva Insurance Company v. McKeown, 2017 ONCA 563 at paras. 27 and 28; Wawanesa Mutual Insurance v. Axa Insurance (Canada), 2012 ONCA 592 at para. 7. Controlling excess costs to the system benefits not only insurers, but policy-holders as well. There is no error in the Tribunal’s analysis that would render it absurd or contrary to the purpose of the legislation.

16The applicant is incorrect that the Tribunal failed to consider her submissions on the impossibility and impracticality of complying with the Schedule. The Tribunal considered the applicant’s submissions on the barriers she faced in claiming attendant care at para. 10 of the decision.

17The applicant submits that the Tribunal failed to consider her evidence that she should have been removed from the Minor Injury Guideline sooner and that she had incurred attendant care expenses. This is incorrect. The applicant’s dissatisfaction lies with the way the Tribunal, as the trier of fact, weighed the evidence before it. The Tribunal carefully assessed the evidentiary record in reaching its conclusions. Those conclusions are supported by clear factual findings and reasoned analysis. The applicant’s dissatisfaction with the Tribunal’s treatment of the letter from Ms. Kariuki is not a basis for reconsideration. Attendant care claims require detailed records that assist in determining the period and quantum of payments owed. Uncontradicted or not, the lack of detail in the letter made it of limited use in determining the issues. The applicant has identified no error of law in the way the Tribunal weighed the evidence. Disagreeing with the weight accorded to evidence is not a ground for reconsideration.

18The applicant submits that the Tribunal erred in fact and law by treating the absence of detailed timesheets as significant. She submits that the Schedule does not explicitly require timesheets to be submitted in support of such a claim. The Tribunal’s analysis of the applicant’s evidence is set out at para. 33 of the decision. The Schedule does not prescribe the manner of evidence that should be tendered in support of an attendant care claim. The applicant bears the onus of establishing incurred expenses, and the Tribunal must weigh the evidence before it against the requirements set out in the legislation. This is a highly individualized and fact-specific inquiry. In this case, the absence of detailed timesheets was significant. Ultimately, it was the absence of any records capable of supporting a claim for attendant care between November 2019 and November 2020 that was determinative.

19Promising to pay an expense satisfies only part of the statutory test for incurred expenses. It is a necessary condition for establishing incurred expenses, but not a sufficient one. The claimant retains the onus of establishing that services have been rendered. In this case, the outcome did not turn on whether the applicant was legally obligated to pay any incurred expenses. It turned on specifically when, for how long, and for what purpose attendant care services were actually received.

20Finally, the submits that the Tribunal did not consider her submission that it would have been onerous for her to document the emotional support she received. Again, the applicant is incorrect. At para. 29 of the decision, the Tribunal expressly endorses the applicant’s submission that the presence of her friend amounted to emotional support regardless of the type of tangible aid she was providing. It would be no more or less onerous for the applicant to document the time her friend spent assisting her if she was cooking for, grooming, or showering the applicant while also providing her with collateral emotional support. The Tribunal clearly engaged with the applicant’s submissions on this point.

21The applicant has identified no factual or legal errors in the Tribunal’s decision.

The Tribunal did not act outside its jurisdiction

22The applicant submits that by reducing the hourly rate payable for services she incurred to match the statutory limits set out in the Attendant Care Hourly Rate Guideline (Superintendent’s Guideline No. 03/17), the Tribunal acted outside its jurisdiction. Quite the opposite: the Tribunal would have acted outside its authority if it had ordered the respondent to pay an amount exceeding the statutory maximum. While it is open to an insurer to pay the applicant a higher hourly rate than what is required by the guideline or ordered by the Tribunal, there is no basis in law for the Tribunal to order payment exceeding the statutory maximums. The Tribunal made findings on the issues put to it by the parties and set out in the case conference report and order. If the respondent agrees to compensate the applicant at a higher hourly rate, there is nothing in the Tribunal’s order preventing it from doing so. There is no basis for reconsideration on this ground.

CONCLUSION

23The applicant has failed to identify an error of fact or law or an excess of jurisdiction in the Tribunal’s decision. There is no basis for reconsideration. The request is denied.

Theresa McGee

Vice Chair

Tribunals Ontario - Licence Appeal Tribunal

Footnotes

1. 21998 CanLII 837 (SCC), [1998] 1 SCR 27 at para. 27.
2. 12019 ONCA 882.