Licence Appeal Tribunal File Number: 22-001808/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:
Barney Petiquan
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
David Hollingsworth, Counsel
For the Respondent:
Hermina Nuric, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Barney Petiquan (the “applicant”) was involved in an automobile accident on July 8, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Economical Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $6,000.00 per month from July 8, 2021 to the date of the hearing?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
The applicant is entitled to ACB in the amount of $86.74 for the period of July 8, 2021 to the date of the hearing, with interest.
The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The applicant’s allegation that the respondent failed to comply with a production order
4The applicant alleges that the respondent failed to comply with the production order set out in the Case Conference Report and Order (“CCRO”) released on February 11, 2023. He claims that the respondent failed to produce a complete copy of the accident benefits file and the adjusters’ log notes within 60 days of the case conference, i.e. February 21, 2023.
5The respondent submits that the applicant’s allegation is incorrect. The respondent relies on correspondence dated February 21, 2023 and confirms that it provided the ordered productions on that date.
6The applicant did not address the respondent’s compliance with the CCRO in his reply submissions, despite having the opportunity to do so.
7I find that the applicant failed to demonstrate, on a balance of probabilities, that the respondent failed to comply with the production order set out in the CCRO.
The respondent’s objection to the introduction of a CTV news article as evidence
8The respondent objects to the applicant’s reliance on a CTV news article and submits that it should not be admitted as evidence. The respondent argues that the news article is inflammatory and contains untested hearsay statements attributed to various individuals.
9The applicant did not address the respondent’s objection in his reply submissions, despite having the opportunity to do so.
10I find that to assign the hearsay statements contained in the CTV news article the same evidentiary value as direct testimony without allowing the respondent any means to cross-examine the declarants on the basis of their statements or qualification to provide them would be unduly prejudicial in the circumstances. The essential defining features of hearsay are an out-of-court statement adduced to prove the truth of its contents in the absence of a contemporaneous opportunity to cross-examine the declarant. The function of the trier of fact is to guard against undue reliance on hearsay evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested at the hearing.
11While section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 permits the admission of unsworn hearsay statements (so long as the evidence is relevant to the subject matter of the proceedings) and allows the adjudicator to assign it the appropriate probative weight, I would assign substantially reduced probative weight to the CTV news article.
The respondent’s objection to the introduction of affidavit evidence
12The respondent requests that the Affidavit of Shelley Spence, Vice President of Second Family Care, sworn on September 1, 2023, be struck from the evidence. The respondent submits that the applicant improperly introduced affidavit evidence with his reply submissions, contrary to paragraph 13(ii) of the CCRO which provides that “the parties agreed that no affidavits will be submitted as evidence.”
13The respondent further submits that the applicant cannot introduce new evidence with his reply submissions and argues that doing so is contrary to the principles of natural justice. Given that the respondent did not have the opportunity to cross-examine the affiant on her evidence, it would be procedurally unfair and prejudicial to the respondent to allow the applicant to rely on the affidavit evidence. The respondent relies on A.J. v. Aviva General Insurance, 2020 CanLII 72500.
14In response, the applicant argues that his reply submissions were designed to provide a fulsome reply to the new items raised in the respondent’s submissions. Specifically, throughout the respondent’s submissions, it refers to the need for further particulars of the attendant care services provided, and the affidavit evidence was submitted in response to these submissions. Nevertheless, the applicant indicated that he was content to adjourn the hearing to provide the respondent with the opportunity to cross-examine the affiant and to adduce its own affidavit evidence.
15On reply, the respondent opposes the applicant’s attempt to alter the agreed upon parameters of the hearing and notes that allowing the respondent to cross-examine the affiant at this point would not cure the violation of the rules of natural justice. The respondent further denies that it raised any new item as it relates to the sufficiency of the particulars of the attendant care services provided. The respondent notes that in its Response by an Insurance Company dated March 1, 2022, it expressly addressed the applicability of the Divisional Court decision in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 [Malitskiy] and the need for further particulars.
16I find that the applicant breached paragraph 13(ii) of the CCRO. As noted by the respondent, the parties agreed not to submit affidavit evidence. Despite this agreement and the Tribunal’s order, and without successfully seeking the Tribunal’s consent, the applicant filed affidavit evidence with his reply submissions. Further, I am not persuaded by the applicant’s submissions to adjourn the proceeding at this stage, and I find that an adjournment is not warranted in the circumstances.
17I further find that tendering affidavit evidence as part of a reply improper in the circumstances. It is well settled that a proper reply is intended to address arguments made by the responding party which could not have been anticipated when the applicant made its initial submissions. A reply does not typically present an opportunity to tender new evidence as the responding party does not have the opportunity to respond to the new evidence.
18Here, the issues that the affidavit evidence are meant to address were previously raised by the respondent in the Response by an Insurance Company. Correspondingly, the applicant could have reasonably anticipated that the respondent would take a similar position and addressed the sufficiency of the particulars in his initial submissions.
19Accordingly, I find that the affidavit evidence is improper and should be struck as it would be procedurally unfair to allow its inclusion in the circumstances. As such, I am not prepared to consider the applicant’s affidavit evidence.
ANALYSIS
Background
20The applicant was involved in a single vehicle accident which occurred on July 8, 2021. As a result of the accident, he sustained a left subdural hemorrhage, a T12 burst fracture, a possible unstable T11 fracture, a displaced fracture of right mandibular ramus, a displaced fracture of L1 and L2 transverse process on the right, and a non-displaced bilateral 1st rib fracture.
21Although the applicant submitted an Application for Determination of Catastrophic Impairment (OCF-19), it was denied by the respondent. Further, at the time of the hearing, no determination had been made as to whether the applicant sustained a catastrophic impairment as defined by the Schedule. Accordingly, the applicant is deemed to be non-catastrophically impaired.
Attendant Care Benefits (“ACB”)
22Section 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 attendant care services provided by an aide or attendant.
23Further, the amount of a monthly ACB is determined in accordance with the approved version of the document entitled Assessment of Attendant Care Needs (“Form 1”) that is required to be submitted under s. 42 and is calculated by (a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care, and (b) adding the amounts determined under clause (a), if more than one type of attendant care is required.
24The maximum payable for ACB under the Schedule is $3,000.00 per month for non-catastrophically impaired insureds.
25Section 3(7)(e) of the Schedule provides that expenses are not incurred by an insured person unless: (i) they have received the goods or services to which the expense relates; (ii) they have paid the expense, have promised to pay the expense, or are 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 3(8) of the Schedule further provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
27The applicant submitted a Form 1 dated October 4, 2021 completed by CBI Health that indicated that he required ACB in the amount of $10,288.15 per month. According to the Form 1, the applicant requires assistance with: dressing and undressing upper and lower body; using prescribed orthotics; shaving with an electric/safety razor; cleaning and trimming toenails as required; preparing, serving, and feeding meals; walking; laundering and cleaning orthotics supplies that require special care; cleaning tub/shower/sink/toilet after use; changing bedding, making the bed, and cleaning the bedroom; ensuring comfort, safety, and security in the bedroom; preparing daily wearing apparel; hanging clothes and sorting clothing to be laundered/cleaned; basic supervisory care as the applicant lacks the ability to independently get in and out of a wheelchair or to be self-sufficient in an emergency; co-ordinating/scheduling attendant care; positioning, emptying, and cleaning drainage systems; monitoring medication intake and effect; maintaining and controlling medical supply; transferring to and from bed, wheelchair or Hoyer lifts to bathtub or shower; bathing and drying; monitoring, ordering, and maintaining required supplies/equipment; and ensuring wheelchair, prosthetic devices, Hoyer lifts, shower commodes, and other specialized medical equipment and assistive devices are safe and secure.
28The respondent approved the Form 1 and agreed to pay ACB up to $3,000.00 per month provided that the applicant submit proof of incurred expenses pursuant to s. 3(7) of the Schedule.
29The applicant confirmed that his entitlement to ACB is not in dispute. Rather, he submits that what is in dispute is whether the respondent must pay the full amount of the Form 1 or if it may restrict the hourly rate of the care needed to hourly rates that fall below minimum wage as listed on the Form 1. The applicant seeks a determination of his entitlement to the maximum amount of ACB payable to him in accordance with the resulting monthly attendant care amount as per the Financial Services Commission of Ontario’s (“FSCO”) Revised Attendant Care Hourly Rate Guideline and Clarification of Health Care Providers Subject to the Professional Services Guideline Bulletin A-03/18 (the “Bulletin”) and the Form 1 completed by CBI Health.
30The applicant received attendant care services from personal support workers employed by Second Family Care and submitted six invoices from October 2021 to January 2022. He also submitted a copy of the personal support workers’ credentials, the daily tasks completed by the personal support workers, and signed confirmations from the applicant noting that the tasks were completed. The hourly rate of the personal support workers was $33.50 per hour.
31The respondent partially approved the invoices. It refused to pay the full amount of the invoices on the basis that the invoices submitted by the applicant do not contain the particulars that are required to substantiate that ACB has been incurred for the purpose of s. 3(7)(e)(i) of the Schedule. The respondent argues that the invoices must detail what was done on each day and for how long, to allow for identification of the actual goods and services to which the expenses relate. Pending receipt of particulars, the respondent relied on the ratio method outlined in Malitskiy to partially pay the invoices.
32The applicant argues that it is a fair and reasonable expectation for the respondent to pay the full amount of the invoices up to the applicable limit of the policy. The applicant takes the position that the ratio method set out in Malitskiy does not apply in this case as the decision addressed an automobile accident that occurred in 2014, before the Bulletin and the FSCO Superintendent’s Guideline No. 01/18 entitled Attendant Care Hourly Rate Guideline (the “Guideline”) which was introduced by the Bulletin came into effect. The applicant submits that pursuant to s. 268.3 of the Insurance Act, R.S.O. 1990, c. I.8, the Guideline supersedes any judicial decision that contravenes the Guideline as the Guideline is binding law and part of the Schedule.
33The applicant further submits that the respondent denied his access to attendant care services while profiting from acceptance of premiums. He argues that the respondent engaged in unreasonable conduct, and he seeks a determination that he is entitled to ACB pursuant to s. 3(8) of the Schedule.
34The applicant relies on the Bulletin, the Guideline, correspondence between the Auto Insurance Advocacy Committee and the Financial Services Regulatory Authority of Ontario (“FSRA”), an article from CTV News Toronto, Budget Implementation Act, 2021, No. 1, S.C. 2021, c. 23, Making Ontario Open for Business Act, 2018, S.O. 2018, c. 14, and the FSRA’s Unfair or Deceptive Acts or Practice Rules (2023).
35In response, the respondent submits that the only substantive issue that is in dispute is the quantum of incurred ACB payable to the applicant, plus interest and award. The respondent maintains that the applicant has not provided sufficient proof of incurred expenses pursuant to s. 3(7)(e) of the Schedule.
36The respondent further submits that while the Guideline provides that an insurer may pay an hourly rate for ACB that is higher than those set out in the Guideline, an insurer is not required to pay a higher hourly rate. The respondent argues that there is nothing unlawful about the payment of below market hourly rates to personal support workers as the Schedule was never intended to provide a full compensation scheme.
37The respondent relies on S.M. v. Unica Insurance Inc., 2020 CarswellOnt 12389 (ON LAT) [S.M.], Malitskiy, Joslin-Mielke v. Pembridge, 2022 CarswellOnt 9149 (ON LAT) [Joslin-Mielke], R.O. v. Aviva Insurance Company of Canada, 2019 CanLII 94029 (ON LAT) [R.O.], and Gichuki v. TD Insurance Meloche Monnex, 2022 CarswellOnt 11492 (ON LAT) [Gichuki].
The applicant has not demonstrated that he has incurred the full balance of the invoices
38I find that the applicant has not demonstrated, on a balance of probabilities, that he has incurred the full balance of the invoices submitted for ACB for the period of October 2021 to January 2022 totaling $4,429.06.
39I do not agree with the applicant’s interpretation of the Guideline, and I find that the Tribunal does not have the authority to require an insurer to pay an hourly rate for ACB greater than the hourly rates set out in the Guideline. Although I am not bound by prior decisions of the Tribunal, I subscribe to the same opinion as the one set out in Gichuki, at paragraph 22, wherein the Tribunal held as follows:
The 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 maximum.
40Further, I find that the applicant has provided insufficient evidence to support that ACB has been incurred pursuant to s. 3(7)(e) of the Schedule. As noted by the respondent, it is well established that sufficient particulars must be provided in order to satisfy the first criterion of s. 3(7)(e) of the Schedule. Particulars can include: (i) what services were provided and when; (ii) why they were requested and provided; (iii) how long the services were on any given day; (iv) how the total number of hours was arrived at; and (v) what the hourly rate was [see: R.O. at paragraph 34, and Joslin-Mielke at paragraph 41].
41It is well established that in the absence of particulars, an insurer can apply the ratio method outlined in Malitskiy in order to provide an insured with an interim payment, pending receipt of particulars. As described in S.M., which is the Tribunal decision below Malitskiy, this method consists of first establishing a percentage or “ratio” based on the attendant care needs outline in the Form 1 for each level of care, then applying each percentage to each respective invoice.
42I am not persuaded by the applicant’s argument that the ratio method outlined in Malitskiy does not apply to this case. The applicant has not directed me to any authority indicating that the Divisional Court’s findings in Malitskiy has been overturned. As such, I find that the Malitskiy decision remains binding.
43Correspondingly, I find that the use of the ratio method was appropriate in the circumstances, and as such, there is no basis for a finding that the ACB are deemed incurred under s. 3(8) of the Schedule. Indeed, although the applicant’s invoices and supporting documents itemize the attendant care tasks that were completed during each visit, there is no indication as to how much time was spent on each individual task. Considering that the personal support workers also completed attendant care tasks that were not identified in the Form 1 such as washing hair, brushing hair, styling hair, skin care, oral care, and face washing, in the absence of further particulars, there is insufficient evidence to support that the full amount of the invoices satisfy the incurred criterion of s. 3(7)(e) of the Schedule.
44Accordingly, the applicant is not entitled to the full balance of the invoices submitted for ACB.
The applicant is owed ACB for the period of July 8, 2021 to the date of the hearing
45I find that there is a discrepancy in the amount of ACB paid by the respondent to the applicant under the ratio method. As a result, I find that the applicant is owed ACB in the amount of $86.74 for the period of July 8, 2021 to the date of the hearing.
46Applying the ratio method discussed above, I calculate the ratio percentage as follows, exclusive of HST:
Table 1: Calculation of ratio percentage
| Level | Hours per Month | Hourly Rate | Total | % of Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 69.6242 | $14.90 | $1,037.40 | 10.08% |
| Level 2: Basic supervisory functions | 637.1023 | $14.00 | $8,919.43 | 86.70% |
| Complex health/care and hygiene functions | 15.695 | $21.11 | $331.32 | 3.22% |
| Total Attendant Care Recommended | $10,288.15 | 100% |
47Next, applying the ratio percentage to the six invoices, I calculate the incurred amount of ACB, plus HST, as follows:
Table 2: Calculation of incurred amount of ACB for invoice dated October 31, 2021 in the amount of $416.41 (11 hours at $33.50 per hour, plus HST)
| Level | Ratio % of Hours | Revised Hours | Rate | Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 10.08% x 11 | 1.11 | $14.90 | $16.54 |
| Level 2: Basic supervisory functions | 86.70% x 11 | 9.54 | $14.00 | $133.56 |
| Complex health/care and hygiene functions | 3.22% x 11 | 0.35 | $21.11 | $7.39 |
| Subtotal | $157.49 | |||
| Plus 13% HST | $20.47 | |||
| Total for Attendant Care Services | $177.96 |
Table 3: Calculation of incurred amount of ACB for invoice dated November 15, 2021 in the amount of $794.96 (21 hours at $33.50 per hour, plus HST)
| Level | Ratio % of Hours | Revised Hours | Rate | Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 10.08% x 21 | 2.12 | $14.90 | $31.59 |
| Level 2: Basic supervisory functions | 86.70% x 21 | 18.21 | $14.00 | $254.94 |
| Complex health/care and hygiene functions | 3.22% x 21 | 0.68 | $21.11 | $14.35 |
| Subtotal | $300.88 | |||
| Plus 13% HST | $39.11 | |||
| Total for Attendant Care Services | $339.99 |
Table 4: Calculation of incurred amount of ACB for invoice dated November 30, 2021 in the amount of $1,097.80 (29 hours at $33.50 per hour, plus HST)
| Level | Ratio % of Hours | Revised Hours | Rate | Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 10.08% x 29 | 2.92 | $14.90 | $43.51 |
| Level 2: Basic supervisory functions | 86.70% x 29 | 25.14 | $14.00 | $351.96 |
| Complex health/care and hygiene functions | 3.22% x 29 | 0.94 | $21.11 | $19.84 |
| Subtotal | $415.31 | |||
| Plus 13% HST | $53.99 | |||
| Total for Attendant Care Services | $496.30 |
Table 5: Calculation of incurred amount of ACB for invoice dated December 15, 2021 in the amount of $1,211.36 (32 hours at $33.50 per hour, plus HST)
| Level | Ratio % of Hours | Revised Hours | Rate | Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 10.08% x 32 | 3.23 | $14.90 | $48.13 |
| Level 2: Basic supervisory functions | 86.70% x 32 | 27.74 | $14.00 | $388.36 |
| Complex health/care and hygiene functions | 3.22% x 32 | 1.03 | $21.11 | $21.74 |
| Subtotal | $458.23 | |||
| Plus 13% HST | $59.57 | |||
| Total for Attendant Care Services | $517.80 |
Table 6: Calculation of incurred amount of ACB for invoice dated December 31, 2021 in the amount of $378.55 (10 hours at $33.50 per hour, plus HST)
| Level | Ratio % of Hours | Revised Hours | Rate | Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 10.08% x 10 | 1.01 | $14.90 | $15.05 |
| Level 2: Basic supervisory functions | 86.70% x 10 | 8.67 | $14.00 | $121.38 |
| Complex health/care and hygiene functions | 3.22% x 10 | 0.32 | $21.11 | $6.76 |
| Subtotal | $143.19 | |||
| Plus 13% HST | $18.61 | |||
| Total for Attendant Care Services | $161.80 |
Table 7: Calculation of incurred amount of ACB for invoice dated January 15, 2022 in the amount of $529.97 (14 hours at $33.50 per hour, plus HST)
| Level | Ratio % of Hours | Revised Hours | Rate | Total |
|---|---|---|---|---|
| Level 1: Routine personal care | 10.08% x 14 | 1.41 | $14.90 | $21.01 |
| Level 2: Basic supervisory functions | 86.70% x 14 | 12.14 | $14.00 | $169.96 |
| Complex health/care and hygiene functions | 3.22% x 14 | 0.45 | $21.11 | $9.50 |
| Subtotal | $200.47 | |||
| Plus 13% HST | $26.06 | |||
| Total for Attendant Care Services | $226.53 |
48Given the above calculations, I find that the total incurred amount of ACB payable pursuant to the ratio method is $1,920.38. Since the respondent did not include the amount payable for HST for the invoices dated October 31, 2021 and November 15, 2021, there is an outstanding balance owed to the applicant in the amount of $86.74.
49Accordingly, I find that the applicant is entitled to the balance of ACB owing.
Interest
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the ACB owing.
Award
51Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award of up to 50 per cent of the total benefits payable plus interest if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit.
52The applicant submits that the respondent has taken an unreasonable position regarding the payment of ACB. The applicant indicates that the respondent’s position is contrary to the Bulletin. The applicant argues that paying less than minimum wage for attendant care services makes it effectively impossible to obtain attendant care services and goes against the purpose of the Schedule as consumer protection legislation. The applicant also submits that the respondent failed to advise him of the applicability of the “ratio method” for calculating ACB until after the applicant had incurred ACB and provided invoices.
53In response, the respondent notes that it opted to utilize the ratio method outlined in Malitzkiy and to provide partial interim payments of ACB to the applicant rather than paying nil due to the absence of particulars. The respondent argues that not utilizing the Divisional Court’s approach for calculating ACBs in the circumstances would have been deceptive and unfair in the circumstances.
54It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
55I am not persuaded by the applicant’s submissions that the respondent’s conduct attracts an award, and there is no evidence that the respondent’s actions arose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
56Accordingly, the respondent is not liable to pay an award.
ORDER
57For the reasons outlined above, I find that:
The applicant is entitled to ACB in the amount of $86.74 for the period of July 8, 2021 to the date of the hearing, with interest.
The respondent is not liable to pay an award.
Released: February 12, 2024
Ludmilla Jarda
Adjudicator