20-014466/AABS

Licence Appeal Tribunal File Number: 20-014466/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:

Tetyana Dulepa

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Mary Shemon, Counsel

For the Respondent: Marcin J. Panasewicz, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Tetyana Dulepa (the “applicant”) was involved in a motor vehicle accident on March 4, 2020 and sought attendant care benefits (“ACB”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of Canada (the “respondent”) denied the ACB claim on the basis that the benefit was not incurred in accordance with the Schedule. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to ACB in the amount of $2,827.44 per month from March 4, 2020 to date and ongoing?

2. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

3The applicant is not entitled to ACB, as she has not demonstrated that these expenses have been incurred in accordance with 3(7)(e) of the Schedule. Given that there is no overdue payment of benefits, interest is not payable.

PROCEDURAL ISSUES

Did the respondent improperly introduce allegations of dishonesty and fraud?

4I find that the respondent has not violated the rules of procedural unfairness or prejudiced the applicant in its written submissions for this hearing.

5In reply submissions, the applicant argues that the respondent breached the Browne v. Dunn, 1893 CanLII 65 (FOREP) common law rule by questioning the veracity of attendant care invoices and submitting surveillance video evidence in its written submissions on June 16, 2022 that challenged the credibility of the applicant. She alleges that these submissions contravene standards of procedural fairness and would prejudice her if entered into evidence. The applicant requests that the respondent’s submissions on the ACB invoices be struck as a result.

6While the respondent filed an objection to the applicant’s reply submissions (see below), it provided no response on this specific matter.

7The Browne v. Dunn rule holds that if counsel is intending to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to respond to this contradictory evidence. Browne v. Dunn was clarified in R. v. Quansah (2015 ONCA 237 at paragraph 70), an Ontario Court of Appeal decision authored by Justice Watt explaining that the rule requires:

(i) Fairness to the witness whose credibility is being attacked;

(ii) Fairness to the party whose witness is impeached; and

(iii) Fairness to the trier of fact.

8Further, Justice Watt wrote that any application of the Browne v. Dunn rule should be confined to matters of substance that are material to the outcome of the matter at hand. This does not mean that the Browne v. Dunn rule should be universally applied, however. Justice Watt also stated that the rule is not breached where it is clear that the other party intends to impeach the witness’ story. Accordingly, if an applicant in a proceeding such as this written hearing is aware of the issues of substance that will be raised by the respondent, then the respondent is not acting in an unfair manner. Hence, the respondent should not be deemed to be in violation of Browne v. Dunn.

9The logic of Justice Watt is applicable here. Given the Case Conference Report and Order (“CCRO”) dated June 4, 2021, that set this matter down for a hearing, the ACB issue was clear to both parties. Although the applicant wrote at the end of her initial written submissions that no allegations of credibility had been raised by the respondent and no affidavit evidence had been requested as a result, both parties noted in submissions that ACB entitlement was being disputed on the grounds that the expenses were not incurred. As a result, any hearing would almost certainly lead to evidence being produced about finances, invoices, and proof of economic loss that would inevitably challenge the credibility of the applicant in some fashion.

10Also, determining that Browne v. Dunn has been breached requires that the applicant has been treated unfairly procedurally and not been afforded the opportunity to respond to contradictory evidence. That is not the case here, as the applicant had the opportunity to respond in written reply submissions and did precisely that. Although I infer that the applicant would have preferred to have been asked to provide an affidavit and then been cross-examined on that affidavit (given the affidavit reference in her initial submissions) or to provide oral testimony and subsequently been cross-examined, she did not take steps to make this happen. The applicant did not seek to add an affidavit or to change the hearing format to an in-person hearing via motion to the Tribunal, even after she became aware of the credibility argument being raised by the respondent and the submission of the surveillance video when it was served on June 16, 2022.

11I accept that the applicant was not expecting the credibility argument or the introduction of surveillance evidence. However, the applicant had the opportunity to reply. The applicant had the opportunity to request the addition an affidavit or a change to the hearing format. And there is no indication that the surveillance evidence was disclosed improperly. As a result, I do not accept that the applicant was prejudiced by either the argument or the evidence of the respondent regarding credibility.

12Correspondingly, I am denying the applicant’s request to strike the argument and surveillance evidence in the respondent’s submissions regarding the credibility of the applicant and her OCF-6s and invoices for ACB services.

Did the applicant improperly introduce new evidence in reply submissions?

13I find that the applicant has not introduced new evidence in her reply submissions that would prejudice the respondent.

14The respondent filed an objection to the applicant’s reply submissions on June 29, 2022 arguing that the applicant introduced new evidence in the Expenses Claim Forms/OCF-6s and associated ACB invoices contained in Tab 4. Aviva requests that this evidence be struck due to procedural unfairness, because attaching these documents to reply submissions denied it the ability to respond.

15The applicant filed a reply to this objection on June 29, 2022, submitting that the OCF-6s and invoices are not new evidence, and that no new argument was adduced. She noted that these forms and invoices are part of the insurer’s claims file, which the respondent had in its possession before the applicant included them in reply submissions.

16I agree with the applicant. While I accept that the right of reply is a limited one, there is nothing new in the applicant’s reply submissions. There is no new argument. The respondent had the OCF-6s and invoices in advance of the applicant’s submitting them in reply submissions. The respondent did not provide any argument speaking to how it has been prejudiced by the way that these documents were produced. It noted only that including this evidence in reply submissions denied it the opportunity to respond and referred to prior decisions of this Tribunal (that I am not bound by) without explaining what was new in this evidence that required a response. The respondent had previously approved the claim for ACB, and the applicant submitted in its reply essentially the same invoices from January 2021 onward as it had in previous months. I do not see how the applicant’s production of such familiar documents could prejudice the respondent’s case, even in reply submissions.

17In addition, I agree with the applicant’s argument that she should be permitted the ability to submit the OCF-6s and invoices because the respondent raised the credibility of the applicant and the legitimacy of the invoices in its initial submissions. While I have ruled above that the applicant was not prejudiced by the introduction of the credibility argument and the surveillance evidence, I also believe that this opened the door to the applicant being allowed to provide clarification on these matters in reply submissions. This further ameliorates any possible prejudice to the applicant in regard to the above issue and allows for a hearing where I can consider the totality of the submitted evidence and ensure that procedural fairness has been afforded to both parties.

18Accordingly, I am denying the respondent’s request to strike Tab 4 of the applicant’s reply submissions, namely a collection of OCF-6s and associated ACB invoices. I am referencing all of the respondent’s reply submissions and tabs in the course of rendering this decision.

ANALYSIS

Attendant Care Benefits (“ACB”)

19I am not persuaded that the applicant has established that she is entitled to ACB, as she has met only one of the applicable three criteria listed in s. 3(7)(e) of the Schedule (she has demonstrated that the applicant has paid for attendant care services or has promised to do so or is legally obligated to pay same).

20Section 19 of the Schedule states 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 for ACB services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACB must be in the form of, and contain the information required to be provided in, an Assessment of Attendant Care Needs/Form 1.

21Here, the ACB dispute centres on whether the benefit has been incurred in accordance with the Schedule. Section 3(7)(e) of the Schedule provides that: (e) subject to subsection (8), an expense in respect of goods and services referring to in this Regulation is not incurred by an injured 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;

22The applicant claims that attendant care services were provided to her by her daughter, OIga Lutsyshyn. The applicant further submits that she has proven that these attendant care expenses were incurred by her and that she is fully in compliance with the requirements of the Schedule cited above.

23The respondent is not denying entitlement to ACB on medical grounds. Aviva sent explanation of benefits (”EOB”) letters to the applicant on December 16, 2020 and again on October 14, 2021 noting that the insurer approved a maximum of $3,000.00 in attendant care per month. Instead, the respondent argues that the applicant has failed to establish that ACB expenses were incurred pursuant to s. 3(7)(e) of the Schedule, as she has not met any of the necessary three criteria contained therein.

24In addition, both parties agree that Ms. Lutsyshyn is not ordinarily an attendant care provider as is addressed at s. 3(7)(e)(iii)(A). As the attendant care was provided by a non-professional care provider in Ms. Lutsyshyn, the applicant must show that this provider sustained an economic loss in the course of providing this service, pursuant to s. 3(7)(e)(iii)(B).

25As a result, what is before me is essentially the remainder of s. 3(7)(e). This means that I must address three questions in the context of rendering my decision on whether the applicant is entitled to the ACB claimed:

i. Has the applicant received the attendant care goods or services to which this expense relates?

ii. Has the applicant paid for these attendant care services or has promised to do so or is legally obligated to pay same?

iii. Has the attendant care service provider sustained an economic loss as a result of providing attendant care services?

26My detailed answers to these three questions follow.

Has the applicant received attendant care goods or services?

27I find that the applicant has failed to prove that she has received the attendant care services as claimed.

28The applicant relies on OCF-6 forms and invoices submitted to the insurer on a monthly basis from March 2020 to the date that submissions were filed on January 14, 2022, as proof that attendant care services were rendered by her daughter, Ms. Lutsyshyn. This would fulfill the requirements of s. 3(7)(e)(ii) of the Schedule.

29These services were arranged as a result of two insurer examination (“IE”) in-home occupational therapy assessments and resulting reports dated December 14, 2020 and September 22, 2021. Each of these assessments was conducted by Lisa Slapinski, occupational therapist, and each of these assessments concluded that the applicant required attendant care service on a 24-7 basis. An Assessment of Attendant Care Needs/Form 1 dated May 5, 2020 and completed by Jag P. Dhirayain, occupational therapist, listed all of the attendant care services required, the minutes required per week to complete these services, and a maximum ACB billing per month of $2,827.44.

30In response, Aviva submits that the OCF-6s and invoices are insufficient proof that attendant care services were provided by Ms. Lutsyshyn as claimed, as they are vague, are not itemized, and are largely identical from month to month. The insurer also argues that surveillance evidence, submitted in the form of video captured of the applicant on May 6, 7, and 8, 2021, contradicts claims that Ms. Lutsyshyn provided these services on a 24-7 basis.

31I agree with the respondent on both positions.

32As Aviva points out in submissions, all of the invoices are essentially duplicates of one another, listing the same services provided, generally in the same order, and the same total amount owing of $2,827.44, which is the same amount listed on the Form 1. It refers to Z.S. v. Intact Insurance Company, 2020 CanLII 34456 (ON LAT), a past decision of the Tribunal. While I am not bound by other Tribunal decisions, I concur with the reasoning of Vice-Chair Boyce here, as this matter involves similarly vague invoicing that he found did not meet the evidentiary burden required by s. 3(7)(i) of the Schedule.

33I acknowledge that an invoice for attendant care supplied by a family member would not be as detailed as that provided by a professional provider of such services, and that there would be a significant amount of repetition from month to month unless the applicant’s condition changed. But simply listing almost the exact same tasks each month along with a total billing amount mirroring the maximum allowable on the Form 1 does not rise to even the more relaxed standard I would accord a family member. There needs to be more itemization beyond cut-and-pasted references to services such as “apply medical cream/lotion,” “control and maintain medication supply,” and “ensures comfort, safety, cleanliness and tidiness in the house.” As a result, I find that these OCF-6s and accompanying invoices are insufficient evidence that attendant care services were provided as claimed.

34Surveillance videos taken May 6, 7, and 8, 2021 cast further doubt that Ms. Lutsyshyn provided attendant care services on the 24-7 basis claimed. Although all of the invoices submitted by the applicant’s daughter from November 30, 2020, onward list “supervisory care 24 hours” as one of the services provided—including the invoice for May 2021—it is clear that Ms. Lutsyshyn did not provide such round-the-clock coverage on these days. The May 6, 2021, surveillance shows that Ms. Lutsyshyn left her young daughter in the care of the applicant. The applicant walked with Ms. Lutsyshyn’s daughter to a grocery store, where they shopped and then returned home on foot. On May 7, 2021, Ms. Lutsyshyn apparently attended the applicant’s home for approximately three hours in the morning. And on May 8, 2021, Ms. Lutsyshyn seemingly did not attend the applicant’s home at all. The applicant is seen on video taken that day doing yard work, including gardening tasks that involve her bending, carrying a bag of dirt and a bucket of water, all without assistance.

35With that said, I accept the applicant’s argument in reply submissions that three days of surveillance is not enough to call into question the entirety of the attendant care services from the date of loss. But I must note that billing for “supervisory care 24 hours” has to mean that such service was provided, and it clearly was not in the instances recorded in May 2021. The applicant also provided no reason in reply submissions for Ms. Lutsyshyn’s absences on these dates, or how she cared for her mother on a 24-7 basis when she apparently did not live at the same address, or why her mother was called upon or was even able to provide babysitting services on May 6, 2021.

36Taken together, the pro-forma invoicing and the surveillance evidence cause me to doubt that Ms. Lutsyshyn provided the attendant care services as claimed in the OCF-6s and invoices that she submitted to Aviva.

37Accordingly, I find that the applicant has failed to demonstrate that she received the attendant care services claimed, pursuant to s. 3(7)(e)(i) of the Schedule.

Has the applicant paid for attendant care services or has promised to do so or is legally obligated to pay for same?

38I find that the applicant has proven that she has paid for attendant care services or has promised to do so or is legally obligated to pay same, as claimed.

39The applicant relies on the submitted OCF-6s and their attached invoices as proof that she has promised to pay for the attendant care services provided by Ms. Lutsyshyn and that she is legally obligated to pay for them. This would fulfill the criteria of s. 3(7)(e)(ii) of the Schedule.

40The respondent argues that Ms. Lutsyshyn applied for the Canada Emergency Response Benefit (“CERB”) in March 2020, which served to rebut any implication of a promise or an obligation on her part to provide attendant care services to the applicant. Aviva submits that this CERB application indicates that Ms. Lutsyshyn did not believe herself to be engaged in any other remunerative work, such as providing 24-7 attendant care for her mother, at this time, as CERB was a benefit to provide emergency income to individuals who could not work due to the impact of the Covid-19 pandemic. As a result, the respondent claims that the applicant does not meet the evidentiary standard required to meet s. 3(7)(e)(ii).

41I agree with the applicant that the OCF-6s and invoices meet the burden in the Schedule. Section s. 3(7)(e)(ii) does not provide a rigorous standard, in my view, as it does not require that proof of payment be provided. Instead, the Schedule holds that the applicant must demonstrate that a promise has been made to pay for attendant care services or that the applicant is legally obligated to pay for these services. Given that invoices have been filed covering attendant care, and the applicant is claiming that the service has been provided, it seems self-evident that the applicant is legally obligated to pay for this expense.

42I am not convinced by the respondent’s position that Ms. Lutsyshyn’s application for CERB in March 2020 indicates that she did not believe herself to be engaged in remunerative work at that time. First, I have no ability or authority to make a determination based on the legitimacy of a CERB claim, as the respondent requests in submissions. That is a matter for the federal government, not this Tribunal. Second, the respondent asks that I assume Ms. Lutsyshyn applied for the benefit because she was not actually working at the time. But I have been provided no real evidence for this argument beyond the fact that Ms. Lutsyshyn applied for CERB.

43For the reasons stated above, I find that the applicant has demonstrated on a preponderance of the evidence that she has promised to pay or is legally obligated to pay for attendant care service expenses, pursuant to s. 3(7)(e)(ii) of the Schedule.

Has the attendant care service provider sustained an economic loss as a result of providing attendant care services?

44I find that the applicant has failed to demonstrate that the attendant care service provider has sustained an economic loss as a result of providing attendant care services as claimed.

45The applicant relies on submissions recounting Ms. Lutsyshyn’s employment history with Toronto-Dominion Bank (“TD”) and an unnamed Ontario numbered company, along with Ms. Lutsyshyn’s Canada Revenue Agency (“CRA”) tax returns from 2016 to 2020, to demonstrate that she sustained an economic loss. The applicant argues that this evidence shows that Ms. Lutsyshyn left both of her jobs/did not return to these jobs as of March 2020 due to having to provide attendant care services for her mother and suffered an economic loss that meets the requirement set forth in s. 3(7)(e)(iii)(B) of the Schedule.

46Aviva takes the position that Ms. Lutsyshyn’s employment history is more nuanced than that presented by the applicant, as she had actually not been working at TD since November 2017. In addition, the insurer responds that Ms. Lutsyshyn has not provided an employment record from the Ontario numbered company that employed her between August 2018 and December 28, 2018. Consequently, the respondent maintains that Ms. Lutsyshyn has not satisfied the requirements of s. 3(7)(e)(ii)(B) and as a result the applicant is not entitled to the ACB claimed.

47I agree with Aviva on both points.

48I concur that Ms. Lutsyshyn’s employment history with TD Bank is not nearly as straightforward as the applicant indicates in submissions. Her employment record shows that she was off on short-term disability from November 27, 2017, until March 30, 2018, when she requested a leave of absence. A Service Canada record dated February 8, 2019, includes the notation that Ms. Lutsyshyn had taken this leave of absence “because she was sick and unable to do her job” and had until March 2019 to advise TD if she was returning to work. However, a Record of Employment form dated May 1, 2018, states that Ms. Lutsyshyn had left her TD job as of March 31, 2018 and was applying for maternity benefits, with an expected recall to TD on April 4, 2019. It is further noted on a Service Canada record also dated February 8, 2019, that Ms. Lutsyshyn advised during a phone call from this federal agency that she “probably” would not return to her TD job as “she will have her baby.”

49Additionally, Ms. Lutsyshyn submitted another personal leave of absence application to TD on June 16, 2020. This application includes the notation that she had been expected to return to her TD Bank position on March 6, 2020. No evidence has been provided that Ms. Lutsyshyn did return to work at that time, however, and this date (which is backdated some two months on this form) is not present in any other employment documents. An email sent from TD to Ms. Lutsyshyn on June 16, 2020 and attached to the leave of absence application in submissions, indicates that the request regarded providing care for a family member. It also states that the manager of the TD branch where Ms. Lutsyshyn worked would support this request. But no evidence has been adduced to show that this is actually why the leave of absence was requested, or even that the leave of absence was authorized. The TD Bank leave of absence form does not include a reason for Ms. Lutsyshyn’s request, and it is not signed by anyone with TD to indicate that it was approved.

50Even though Ms. Lutsyshyn’s work history with TD is somewhat difficult to follow between 2017 and 2021, it is clear to me that she was not actually present and working at this job for some 2.5 years between November 27, 2017, when she went on a personal leave of absence, and March 2020, when she began attendant care duties for her mother. While the meaning of “economic loss” is not defined in the Schedule, I accept this term at its ordinary meaning. In other words, there must be an actual and demonstrated economic loss through having to leave identifiable employment or some other revenue-earning occupation or source of income in order to provide attendant care services and thereby meet the requirements of s. 3(7)(e)(ii)(B).

51Economic loss is not present in the case of Ms. Lutsyshyn, as she left TD in November 2017 and provided no indication that she was planning to return to this job until June 16, 2020, three months after the accident. In fact, the evidence from before the applicant’s accident points to Ms. Lutsyshyn not intending to return to TD, as she told Service Canada that she was not likely to do so in 2019. Granted, all this could be coincidental. But regardless, I view Ms. Lutsyshyn’s potential return to TD as more of an “economic opportunity” than an “economic loss” by the time of her mother’s accident in March 2020, as she had not been actually working for the bank since late 2017 and had no income to lose by providing attendant care services.

52Ms. Lutsyshyn’s employment history with the unnamed Ontario company is even more complicated and lacking in key information, so I have accorded it minimal weight. Employment records from this company have not been adduced as the employer in question did not respond to three attempts by the applicant to obtain such information. The applicant submits that this should not be sufficient grounds to withhold ACB, “when many other documents have been provided,” but the burden of proof remains with the applicant and she has not met it here. Also, as with TD, no evidence has been provided dating to before the applicant’s accident that indicates Ms. Lutsyshyn was intending to return to this job. Lioudmila Nikoulina, director of the numbered company, provided a letter stating that Ms. Lutsyshyn was intending to return to her job with this firm on March 6, 2020 (the same day that she was supposed to return to her TD Bank job) following maternity leave, and this letter is dated June 25, 2020.

53Again, the timing of all this could well be coincidental. Again, I find that this does not matter, as there is not enough information provided about Ms. Lutsyshyn’s job with this numbered company. Without an employment record, or even a description of her job duties to indicate if she was returning to a full-time or part-time job, I am left with more questions than answers regarding Ms. Lutsyshyn’s work with the numbered company. As a result, she has not provided sufficient evidence that she experienced an economic loss from this position as a result of providing attendant care services.

54Lastly, I find the applicant’s contention that CERB and Canada Recovery Caregiving Benefit (“CRCB”) income should not be deducted from ACB payments to be unpersuasive. The applicant cites the reconsideration decision of Foster v. Aviva General Insurance Company 2021 Can LII 117413 (ON LAT) in the course of making this argument. However, this decision is on income replacement benefits (“IRB”) and is dependent almost entirely on a determination that CERB and CRCB benefits are not tied to employment status and cannot be considered “gross employment income” in s. 4(1) of the Schedule. This is quite different than “economic loss” in s. 3(7)(e)(iii)(B), as there are no definitions of this term in the Schedule and there are no links to this economic loss having to result from the loss of employment income. I do not find this reconsideration decision relevant, and I am not bound by other Tribunal decisions, at any rate.

55In accordance with the reasoning above, I find that the applicant has failed to demonstrate on a preponderance of the evidence that Ms. Lutsyshyn sustained an economic loss as a result of providing the attendant care services claimed, pursuant to s. 3(7)(e)(iii)(B) of the Schedule.

ORDER

56The applicant is not entitled to ACB, as she has not demonstrated on a preponderance of the evidence that these expenses have been incurred in accordance with all three requirements detailed in s. 3(7)(e) of the Schedule. Given that there is no overdue payment of benefits, it follows that interest is not payable.

57The application is dismissed.