Spencer v. Definity Insurance Company, 2024 CanLII 102098

Citation: Spencer v. Definity Insurance Company, 2024 ONLAT 21-015648/AABS-R

RECONSIDERATION DECISION

Before: Harry Adamidis

Licence Appeal Tribunal File Number: 21-015648/AABS

Case Name: Gail Spencer v. Definity Insurance Company

Written Submissions by:

For the Applicant: Tara L. Lemke, Counsel

For the Respondent: Stephen Whibbs, Counsel

OVERVIEW

1On June 12, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 22, 2024 (“decision”).

2In the decision, I found that the applicant is entitled to $942.19/month in attendant care benefits from December 9, 2022 and onwards. I also found that the applicant is not entitled to the payment of any outstanding balances for attendant care or interest, and that the respondent is not liable to pay an award.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or

c) 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.

4The applicant is seeking a reconsideration of the decision under Rules 18.2(a) and (b) on the basis that I made various errors of fact and law and that I committed a breach of procedural fairness. The respondent submits that I made no errors in the decision and there was no breach of procedural fairness such that the applicant’s reconsideration request should be granted.

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

6The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Jurisdiction to determine the rate for attendant care

7In the decision, I found that I have no jurisdiction to determine the rate for attendant care. The applicant submits that this was an error of law. She cites s. 280(1) of the Insurance Act, R.S.O. 1990 c.I.8 (the Act) to show that the Tribunal has jurisdiction over entitlement and the amount of benefits. She argues that by natural extension, this includes the rate to be paid for attendant care.

8The respondent submits that the rates of attendant care are not reviewable by the Tribunal and the applicant has failed to prove otherwise.

9Section 280(1) of the Act states:

This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

10In paragraphs 7 to 22 of the decision, I reviewed the Form 1’s completed for both parties and found that the applicant is entitled to an attendant care benefit in the amount of $942.19 per month. As such, I met the requirement in s. 280(1) of resolving the parties’ dispute in respect of the amount of statutory accident benefits for the issue of attendant care.

11In her written hearing submissions, the applicant argued that the maximum hourly rates on the Form 1 only apply to calculating the monthly attendant care benefit for the purposes of completing the Form 1. She submitted that insurers must “revert to the question of whether the rate is reasonable and necessary” and whether the total amount being invoiced exceeds the amount on the Form 1.

12In paragraph 37 of the decision, I found that the applicant had not established that the higher rates in her incurred attendant care invoices are reasonable because she provided no evidence to support such a finding.

13I paragraph 38 of the decision, I found that even if the applicant established that the invoiced rates are reasonable marketplace rates for attendant care, the applicant still has not shown how the statutory scheme gives the Tribunal the authority to determine the rates payable for attendant care. Section 19(3)(1.) of the Schedule only provides the Tribunal a means of calculating the monthly benefit.

14I am not persuaded that s. 280(1) of the Act can be broadly interpreted in the manner suggested by the applicant.

Required level of detail for attendant care invoices to be paid

15The applicant submits that it was an error of law to require the attendant care invoices to provide highly detailed statements of the amount of time spent for each level of attendant care in the Form 1. Additionally, she argues that there is no basis in law for requiring payment at Form 1 rates when it is clear that those rates are to be used only for calculation of entitlement.

16The respondent submits that the decision did not require attendant care invoices to provide an onerous level of “minute by minute” detail as alleged by the applicant. Instead, the decision notes that the attendant care invoices provided no breakdown of the types of attendant care services received by the applicant. The respondent was unable to determine what attendant care was received for each level of care in the Form 1 and it consequently employed the ratio method to pay the invoices at Form 1 rates. This is consistent with the methodology in the Divisional Court decision of Malitsky v. Unica Insurance Inc., 2021 ONSC 4603.

17I note that the applicant does not reference any statute or caselaw that conflicts with this part of my assessment. As such, I see no error of law.

Applying the ratio method post April 14, 2018

18The applicant submits that the Bulletin A-03/18 (“New Guideline”) that came into force on April 14, 2018 clearly limits the use of the Form 1 to calculating the amount of attendant care to be paid. The applicant further submits that there is nothing in the New Guideline that allows insurers to limit the payment of attendant care to the Form 1 rates. Consequently, she argues, it was an error of law to misinterpret the New Guideline and apply the principles in Malitsky v. Unica Insurance Inc., 2021 ONSC 4603 for the purpose of applying the ratio method to paying for attendant care.

19The respondent submits that there is no conflict between the New Guideline and the ratio method set out in Malitsky. As such, the applicant has not established that applying the ration method constitutes an error of law.

20I note that the applicant made the identical argument at the written hearing.

21In paragraphs 23 to 49 of the decision, I conducted a detailed analysis which explained why I found that the New Guidelines do not conflict with the use of the ratio method from Malitsky to determine the amount payable for attendant care.

22In particular, I determined the following in paragraphs 34 and 35 of the decision:

[34] I agree with the applicant that the wording in the current Guideline establishes a means of calculating the monthly benefit and does not dictate the maximum rate to be paid for attendant care. This is made clear in the Bulletin:

The Attendant Care Hourly Rate Guideline has been revised to require that the maximum hourly rates set out in the guideline be used with the Assessment of Attendant Care Needs (Form 1) to calculate the monthly attendant care benefit in accordance with section 19 (2) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS).

Previous guidelines could be interpreted to strictly apply the maximum hourly rates as the maximum payable for attendant care services, rather than using the hourly rates to calculate a monthly benefit as was originally intended.

[35] I also agree with the respondent that there is no requirement in the statutory scheme for it to pay rates that are higher than those used to determine the monthly benefit in the Form-1. The Guideline merely states that “Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.”

23Therefore, I find that I addressed the applicant’s position on this issue in the original decision. While the applicant disagrees with my finding, this does not constitute an error of law such that a reconsideration is warranted on this basis.

Breach of Procedural Fairness

24The applicant submits that the decision gives no reasons to explain how Malitsky and the ratio method apply to a matter under the current Guidelines. The applicant further submits the decision does not explain why I concluded that the Tribunal has no jurisdiction to determine the rate at which attendant care is to be paid out. The applicant argues that these two deficiencies in the reasons do not allow her to understand the decision and this constitutes a violation of procedural fairness.

25I disagree. As noted above in paragraphs 18 to 23, I provided reasons for why the New Guidelines and Malitsky do not conflict with each other. In paragraphs 36 to 49 of the decision, I offered a detailed analysis of the invoices in evidence and provided reasons explaining why there was no outstanding payment for incurred attendant care as the respondent had made payments using the ratio method.

26The jurisdictional issue is dealt with above in paragraphs 7 to 14, above.

27For both of the above issues, the applicant was provided clear reasons. It may be that she disagrees with those reasons. However, this differs from providing no reasons, as alleged here.

28Consequently, I find there was no breach of procedural fairness.

CONCLUSION & ORDER

29The applicant’s request for reconsideration is dismissed.

Harry Adamidis

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal