[J. D.] v. Intact Insurance Company, 2022 CanLII 84682

Citation: [J. D.] v. Intact Insurance Company, 2022 ONLAT 19-002767/AABS - R

RECONSIDERATION DECISION

Before: D. Gregory Flude

Licence Appeal Tribunal File Number: 19-002767/AABS

Case Name: [J. D.] v. Intact Insurance Company

Written Submissions by:

For the Applicant: Doug Wright, Counsel

For the Respondent: Darrell March, Counsel

INTRODUCTION

1Both the Applicant, [J. D.], and the Respondent, Intact Insurance Company (“Intact”), have filed requests for a partial reconsideration of the Tribunal’s decision released on December 21, 2021 (“Decision”). Both allege errors of fact and law and jurisdictional and procedural fairness issues with the Decision, particularly the Tribunal’s failure to tie findings to the evidence. Both [J. D.] and Intact alleged that the Tribunal failed to give adequate reasons. I find myself in agreement with the parties that the reasons are wholly inadequate to explain how the Tribunal arrived at the conclusions it did and to permit meaningful review. On this ground, I allow the applications for reconsideration and remit all of the issues to be reheard before a different panel of the Tribunal.

2[J. D.] was involved in a motorcycle accident on August 5, 2018, as a result of which his right leg was amputated below the knee. The severity of his injury is such that he meets the definition of catastrophic impairment in s. 3.1(1)2. of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (“Schedule”). In industry parlance, he is CAT and is entitled to reasonable and necessary medical, rehabilitation and attendant care benefits to a maximum of $1,000,000.

3While a CAT designation does not automatically entitle Mr. [J. D.] to a specific benefit, it does make certain enhanced benefits available that would not otherwise available to injury impaired applicants. For instance, he is entitled to an attendant care benefit up to $6,000 per month as opposed to $3,000 for non-CAT, non-minor injuries. He is also entitled to a housekeeping and home maintenance benefit of up to $100 per week. Both of these benefits are based on proof that the expenses have been incurred. Thus, if Mr. [J. D.] does not pay someone to assist him with grass-cutting, snow clearance or other maintenance around the house, Intact is not required to reimburse him. Similarly, even if it is determined that Mr. [J. D.] requires attendant care, if he does not have an attendant care provider who actually deliver services and submits invoices, there is nothing for Intact to reimburse.

Rule 18 - Grounds for Reconsideration

4To be successful on a reconsideration request a party must demonstrate that the provisions of 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) apply. That rule states:

The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more 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.

5Both parties rely on Rule 18.2(a) and in some cases 18.2(b). Because of the insufficiency of the reasons, I find that both applications for reconsideration fall squarely within the provisions of 18.2(a) so I will not consider errors of law or facts in any depth.

6Specifically, the parties rightly question the Tribunal’s lack of analysis in the Decision with respect to the amount of attendant care to which Mr. [J. D.] is entitled, and the evidence of incurred expenses. Intact questions the total lack of evidence regarding housekeeping and home maintenance expenses.

7Rehabilitation includes payment for home modifications to address Mr. [J. D.]’s impairment. Mr. [J. D.] submits that the Tribunal failed to analyze the applicable provisions of the Schedule and arrive at entitlement for the purchase of a house that can be adapted to his needs. Intact takes issue with the Tribunal’s allowance of a temporary housing amount, pending finding a permanent and suitable residence. The Decision fails to analyze the Schedule in coming to its conclusion on these issues.

8Finally, Intact submits that the Decision is simply wrong in law when it grants payment of $1,530.41 for a partially approved treatment plan. At least some portion of this amount is for service provider mileage to attend Mr. [J. D.]’s home, an expense Intact says is not permitted under the Schedule.

Issues in Dispute

9The applicant seeks reconsideration of the following issues decided by the Tribunal in the decision:

a. Housing Allowance,

b. Attendant Care Benefit, and

c. Award under s. 10 of O. Reg. 664.

10The Respondent seeks reconsideration of the following issues:

a. Attendant Care Benefit,

b. Housing Allowance,

c. Housekeeping and Home Maintenance Benefit, and

d. A medical benefit in the amount of $1,530.41 for provider mileage and documentation, included in the treatment plan dated August 22, 2018.

11As can be seen there is considerable overlap in the issues each party brings to this request for reconsideration. Because it is a discrete issue, I will deal with the provider mileage issue first.

Mileage and Documentation

12The dispute over mileage and documentation flows from a treatment and assessment plan (“OCF-18”) dated August 28, 2018. The OCF-18 sought payment of $7,066.92. Intact approved $5,536.51 leaving a balance of $1,530.41 in dispute. I was not provided with the original OCF-18, but in its responding letter dated September 11, 2018, Intact states:

We are pleased to advise that we have approved the Treatment and Assessment Plan (OCF-18) as per Section 38(8) of the Statutory Accident Benefits Schedule, with the exception of the following service fees for assessments and form completion, which have been partially approved:

• 3. Mileage is not covered. please do not include in OCF-18's
• 4. You are charging for 24 times, when you are seeing him, only 12.
• 5. You are charging for 24 times, when you are seeing him, only 12.
• 8. Please send in receipts for supplies. Parking is not covered.
• 9. We allow 1 hour at your hourly rate to complete the OCF-18.

13The letter does not break the disputed amounts down further than as set out above and I am unable to determine whether Mr. [J. D.] agreed with some or all of the denials, particularly the apparent double charging – 12 visits billed for 24 visits. The parties have given me no guidance in this regard in their reconsideration submissions. While Intact submits that it is both the mileage and documentation fee that are in dispute, in the body of its reconsideration submissions it addresses only mileage.

14The Decision provides no guidance on those items in the denial letter that are payable and those that are not. It applies a reasonableness analysis without addressing Intact’s grounds for denial in detail. It states:

The applicant has established, on a balance of probabilities, that it was reasonable and necessary for his occupational therapy treatments to take place in-home. Therefore, the applicant is entitled to the provider-mileage costs associated with his treatment. The Occupational Therapist (OT) was required to attend the applicant’s residence at Coventry Road to provide the treatments.

15With only this blanket statement as a guide, it is impossible to determine the Tribunal’s reasoning for payment of the full amount, especially with respect to the double billing allegation and the impact, if any, of the Schedule and the Professional Services Guideline on Intact’s obligation to pay mileage. The Tribunal’s failure to provide adequate reasons for its determination that this item is payable is a violation of the rules of natural justice and grounds for setting aside this aspect of the Decision.

ATTENDANT CARE BENEFIT

16As stated above, by virtue of his CAT designation, Mr. [J. D.] is entitled to up to $6,000 per month for an attendant care benefit. There is a complex process for claiming attendant care benefit set out in the Schedule that starts with Mr. [J. D.] retaining the services of an occupational therapist or a registered nurse to prepare an Assessment of Attendant Care Needs (“Form 1”) (see ss 19 and 42 of the Schedule). On August 22, 2018, Arly Diaz, OT, prepared a Form 1 noting that Mr. [J. D.] required $10,462.95 per month of attendant care. She updated her assessment as Mr. [J. D.]’s recovery proceeded and on November 29, 2019, assessed his needs at $6,090.64. Intact conducted its own attendant care assessment of Mr. [J. D.]. In a Form 1, dated January 23. 2020, Trudi Wright, OT, determined that Mr. [J. D.] required $4,756.64 per month in attendant care benefit. Thus, on January 23, 2020, the parties were not excessively far apart in their assessment of Mr. [J. D.]’s attendant care needs.

17The Decision does not mention the Form 1s. The Tribunal was obliged to consider the competing positions of the parties on the value of the attendant care Mr. [J. D.] needed, either by accepting Ms. Diaz’s number or Ms. Wright’s number or arriving at its own quantification based on the evidence. As stated above, Intact is obliged to reimburse Mr. [J. D.] for attendant care expenses he has incurred. Thus, having arrived at the maximum allowable monthly attendant care, the Tribunal should have reviewed the evidence of how much Mr. [J. D.] had incurred for attendant care from his service provider. In this case, Intact submits that the amounts charged for attendant care were not payable because Mr. [J. D.] was living at the provider’s house and the services billed were actually services for the benefit of the provider and her husband and not Mr. [J. D.]. This analysis is absent from the Decision. On its face, the Decision reads as though the Tribunal felt itself constrained to award attendant care either at the CAT level of $6,000 per month or the non-Cat level of $3,000 per month and simply opted for the lower scale.

18Both parties point to the inadequacy of the reasons regarding attendant care, and both agree, supported by ample case law, that the failure to give adequate reasons is a denial of natural justice. Since the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, it is not unfair to say that the parties’ proposition is trite law.

19I find that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness when it failed to give adequate reasons for its attendant care decision.

Housekeeping and Home Maintenance

20The Tribunal’s analysis and conclusion with respect to Mr. [J. D.]’s entitlement to housekeeping and home maintenance suffers from the same defects as the attendant care analysis. The Tribunal did not analyze Mr. [J. D.]’s need for housekeeping and home maintenance services and then look to see if any of those services were actually incurred. Rather, it decided on $50 per week because, despite his treating OT’s evidence that Mr. [J. D.] could complete some housekeeping tasks, he is entitled to some but not full assistance. There is no further explanation on the subject.

21At the time of the accident Mr. [J. D.] was living in rental accommodation. There is no evidence cited in the decision listing which maintenance duties he was responsible for and which not. He then moved to stay with friends, one of whom was a personal service worker and billed for her time providing services to Mr. [J. D.]. There is no analysis in the Decision about any maintenance responsibilities Mr. [J. D.] had and was unable to do as a result of his impairment while he was staying with his friends. Mr. [J. D.] would stay on his own from time to time at a property owned jointly by him and his siblings. There is nothing in the Decision to suggest that he had housekeeping and home maintenance obligations while staying there. Finally, there was nothing in the Decision to indicate Mr. [J. D.] incurred a housekeeping and home maintenance expense at any time, a prerequisite to recovery.

22The onus was on Mr. [J. D.] to show entitlement to a housekeeping and home maintenance benefit. The Tribunal does not identify what evidence it considered in deciding that he needed $50 per week of help. It simply makes a conclusory statement that $50 seems fair. With respect, the test is whether Mr. [J. D.] qualified for a housekeeping and home maintenance expense. If so, he is entitled to up to $100 per week on proof of incurred expense, not $50 because that seems fair. The Decision’s failure to provide a proper explanation and apply the correct legal analysis is both an error of law and a violation of the rules of natural justice and grounds for setting aside this aspect of the Decision.

Home Modification and Housing Allowance

23There are two housing allowance claims: a temporary housing allowance and a home modification allowance. I will deal with the home modification allowance first.

24At the time of the motor vehicle accident, Mr. [J. D.] was living in rental accommodation accessed by way of stairs. There was no wheelchair access. There was evidence before the Tribunal that the cost of modifying the rental property was $357,385 plus $9,600 per annum for an incremental rent increase. There was also evidence that the cost to purchase and equip a home suitable for Mr. [J. D.] was $1,126,560. Intact agreed that the Bloor Street property required modification and its assessor produce a list of the necessary work, although it appears the cost of those modifications was never quantified. Against this backdrop of an identified need, the Decision awards nothing for either modifications of the existing property or the cost of suitable alternative accommodation.

25The Decision acknowledges Mr. [J. D.]’s need for alternative housing. It states: “Therefore, the applicant is not entitled to receive this benefit as requested, because all viable housing options are not before me. However, I do find that the applicant requires alternative housing to meet his disability-related needs.” The viable option referred to above was a property in Oshawa that Mr. [J. D.] owned with his siblings. Mr. [J. D.]’s housing expert was unaware of this house in preparing his report and the Decision uses this lack of awareness to disentitle Mr. [J. D.], yet there was evidence of both need and possible alternatives that are discussed in the Decision but inexplicably ignored in the reasoning leading to disentitlement. This failure to give reasons is a violation of the rules of natural justice and grounds for setting aside this aspect of the Decision.

26Mr. [J. D.] also sought $19,200 to satisfy his short-term housing needs. After the accident he moved from his Bloor Street apartment to a basement apartment in a house on Coventry Road owned by friends, one of whom was also his attendant care provider. The Coventry Road location was intended to be a temporary solution pending a more permanent relocation modified to suit his needs. The Decision makes no attempt to review the evidence relating to the need for short-term housing. While the Tribunal finds a need, it simply accepts the number advanced by Mr. [J. D.] without considering the cost of the housing or the cost of any necessary modifications to make it suitable for Mr. [J. D.]’s needs. This failure to give reasons for why Mr. [J. D.] is entitled to $19,200 for short-term housing is a violation of the rules of natural justice and grounds for setting aside this aspect of the Decision.

Award

27The applicant seeks reconsideration of the Tribunal’s failure to make an award under s. 10 of O. Reg 664. Given the insufficiency of the reasons in identifying the issues and considering the reasonableness of Intact’s denial of the various home modification and other benefits, it will be necessary for a new Tribunal panel to weigh Intact’s actions and determine if it unreasonably withheld or delayed payment.

CONCLUSION

28For the reasons noted above, I grant the parties requests for reconsideration.

29The Tribunal will schedule a case conference to address the procedural steps necessary for scheduling a hearing to resolve the following issues:

a. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $6,000.00 per month for the period starting on September 1, 2018 to date, and on an ongoing basis?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,530.41 ($7,066.92 less the approved amount of $5,536.51) for provider mileage and documentation, as recommended by Arely Diaz of NCCO Rehabilitation Service in the treatment plan dated August 22, 2018, and denied by the respondent on September 11, 2018?

c. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100 per week for the period starting on September 1, 2018 to date, and on an ongoing basis?

d. Is the applicant entitled to receive a rehabilitation benefit in the amount of $1,126,560.00 for alternative accessible housing, recommended by Adapt-Able Design (submitted by Alicia McDougall of NCCO) in the treatment plan dated May 29, 2019, and no response received from the respondent?

e. Is the applicant entitled to receive a rehabilitation benefit in the amount of $19,200.00 for alternative short-term housing, recommended by Alicia McDougall of NCCO in the treatment plan dated October 25, 2019, and about which no response was received from the respondent?

f. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

g. Is the applicant entitled to interest on any overdue payments for benefits?

D. Gregory Flude Vice-Chair Tribunals Ontario – Licence Appeal Tribunal