[R.V.] v. Aviva Insurance Company, 2024 CanLII 79214

Citation: [R.V.] v. Aviva Insurance Company, 2024 ONLAT 22-005519/AABS

Licence Appeal Tribunal File Number: 22-005519/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:

[R.V.] (By their litigation guardian, [R.V.])

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Matthew MacIsaac, Counsel

For the Respondent: Jessica Rogers, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1[R.V.] (the “applicant”) was involved in an automobile accident on May 9, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

R.V. SHALL BE NAMED AS THE LITIGATION GUARDIAN FOR THE APPLICANT

2I find that the applicant’s mother, R.V. shall be named as the litigation guardian for the applicant.

3On August 1, 2023, a Representing Minors and Mentally Incapable Persons Form (“form”) was completed on the applicant’s behalf. On the form, it was noted that the applicant was a mentally incapable person, and her mother had other authority. It is unclear what authority the applicant’s mother has, as the form does not provide this information. To support this application, a copy of the signed declaration by the applicant’s mother and a re-assessment and discharge report by Niagara Children’s Centre, dated December and January 2018, was attached.

4In its submissions, the respondent argues that the applicant has not filed a properly supported form, and as such, there is no jurisdiction for this application to proceed. It appears to be arguing that the documentation filed by the applicant is insufficient.

5In response, the applicant argues that the form was accompanied by a sworn declaration from the applicant’s mother and an assessment report detailing the applicant’s non-verbal autism and functional limitations. She takes the position that she has provided sufficient documentation for a litigation guardian to be appointed. She relies upon the authorities of: 16-004144 v. Aviva Insurance Company Canada, 2017 CanLII 62157 (ON LAT) and Ahmadi (Litigation Guardian of) v. Jevco Insurance, 2022 CanLII 109496 (ON LAT) (“Ahmadi”).

6I agree with the applicant that sufficient documentation has been provided for a litigation guardian to be appointed for the purposes of a statutory accident benefits application. While I am not bound by Ahmadi, I find it persuasive and it has a similar fact matrix to the matter before me. In Ahmadi, the applicant had autism, and a statutory declaration was filed by her mother to act as her litigation guardian. Vice Chair Maedel, at paragraphs 6 to 7, noted that there was no specific Rule that would allow for an appointment of a litigation guardian, however, that in accordance with Rule 3.1 of the Tribunal’s Common Rules of Practice & Procedure in effect at the time, the rules should be liberally interpreted. As such, Vice Chair Maedel was satisfied to appoint the applicant’s mother as a litigation guardian based on the statutory declaration and the evidence demonstrating the diagnosis of autism.

7In accordance with Rule 3.1 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. In my view, having a litigation guardian to protect the applicant’s best interests, strikes at the very heart of procedural fairness. To be frank, there are hundreds of records that demonstrate that the applicant has non-verbal autism, and I have a signed declaration from the applicant’s mother. Moreover, the declaration meets the criteria as outlined in 16-004144 v. Aviva Insurance Company Canada. As such, I disagree with the respondent’s position that the Tribunal lacks jurisdiction, as the applicant has established that a litigation guardian is required and has filed sufficient documentation.

ISSUES

8The issues in dispute are:

i. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $2,538.33 per month from May 21, 2019 to date and ongoing?

ii. Is the applicant entitled to interest on any overdue payment of benefit?

iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

9I find that:

I. The applicant is not entitled to ACBs, nor interest.

II. The respondent is not liable to pay an award.

III. The application is dismissed.

ANALYSIS

Background

10On May 9, 2018, the applicant was a passenger on a school bus when it was hit by another vehicle.

11Since childhood, the applicant has been diagnosed with non-verbal autism.

12On May 18, 2018, the applicant submitted an application for benefits (“OCF-1”) to the respondent with a correspondence that she required immediate attendant care. On May 22, 2018, the applicant submitted a Disability Certificate (“OCF-3”), which indicated that she had experienced behavioural changes since the accident.

13On June 13, 2018, the respondent advised that it would pay the reasonable costs for attendant care until a completed Assessment of Attendant Care Needs (“Form 1”) was received. The Form 1 was completed on June 7, 2018, and the respondent approved this on June 28, 2018. Additionally, the respondent advised the applicant to submit any incurred ACBs.

14On November 14, 2018, the respondent requested an updated Form 1 and additional records from the applicant. As the applicant did not provide this, the respondent suspended her ACBs on May 21, 2019.

15On October 29, 2019, the applicant provided additional school and medical records. The updated Form 1 was completed on October 21, 2021.

16On January 6, 2022, the applicant submitted an Expenses Claim Form (“OCF-6”) for incurred attendant care expenses in the amount of $10,369.60. On February 1, 2022, the respondent denied the OCF-6 as it required the records of Person Centred Care of Niagara, who was the attendant care provider, in order to confirm what services were completed.

17The respondent does not dispute that incurred ACBs are payable prior to February 22, 2022 (which is the date the benefit was denied), in the amount of $2,538.33 per month.

18On June 14, 2023, and October 17, 2023, the applicant submitted additional invoices from Person Centred Care of Niagara.

The ACB expenses incurred from May 21, 2019 to February 22, 2022 are not for services outlined in the Form 1

19I find that the applicant has not met her burden of proof to establish that the ACBs services provided are compensable.

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 ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

21The parties agree that the applicant is entitled to ACBs until February 22, 2022. Instead, the ACB dispute centres on whether the benefit has been incurred in accordance with the Schedule. Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, or is otherwise legally obligated to pay the expense.

22Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers who do so in the course of their ordinary employment, occupation, or profession in which they would have been engaged, but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person. Aide or attendant care providers also include family members.

23The applicant argues that Person Centered Care of Niagara completed “the bulk” of the incurred attendant care services and relies on their records and invoices. She argues that these records demonstrate that she received the services as outlined in the Form 1 and the invoices that show she either paid partially or in full on an ongoing basis. Therefore, she argues that the test for incurred expenses under s. 3(7)(e) has been met.

24Meanwhile, the respondent argues that the invoices from Person Centered Care of Niagara contain little information. Particularly, the invoices do not provide any details of the specific services provided, or a breakdown of the time spent on each service. It further argues that even after receiving the records from Person Centered Care of Niagara, these records do not provide further details of what specific services were provided on any specific day. Ultimately, it argues that there is insufficient evidence to find that the programming and activities provided would qualify as the attendant care activities listed in the Form 1.

25To provide some context, a Form 1 was completed on June 7, 2018, and the following services were recommended by Maha Wakim, occupational therapist:

I. Level Two: ensure comfort, safety, and security in the environment, 630 minutes per week; and

II. Level Three: skilled supervisory level for violent behavior that may result in physical harm to themselves or others, 1260 minutes per week.

26The evidence tendered by the applicant does not establish that she received the above-noted services from Person Centred Care of Niagara. There are 53 invoices before me spanning from April 9, 2019 to February 16, 2022, however none of these outline that the services were for comfort, safety, and security or for violent behavior. Rather, these invoices have vague services outlined such as: see “paper copy”, “day services- see invoice copy”, “DS, day services”; “C-RL, Community Group Activity”; “Life and Skill Development”; “transportation”; “C-RL, Life and Skill Development”; and “Covid-19 Wage Enhancement”. Critically, the applicant did not produce copies of the paper copy or the invoice copy as referenced in these invoices as evidence for this hearing.

27Likewise, the invoices from April 9, 2019 to December 19, 2019, do not outline which dates the services were provided. Ultimately, none of these invoices provide details of exactly what services were provided, nor the time length for each.

28In a similar vein, the records of Person-Centered Care of Niagara do not assist me in determining whether the services that were incurred are for services as outlined in the Form 1. I acknowledge that the applicant is correct that the records do contain incident reports, dated June 27, 2019, June 28, 2019, July 3, 2019, July 30, 2019, June 30, 2021, August 31, 2021, and December 1, 2021 where staff intervention was required. Aside from the incident reports, dated August 31, 2021 and December 1, 2021, the remaining reports do not have a corresponding invoice.

29With respect to the incident reports, dated August 31 and December 1, 2021, the corresponding invoices are unhelpful, as the services listed are “Covid-19 wage Enhancement” and “Life and Skill Development”. As noted above, the invoices provided contain no information on the length of time or information on each service that was provided. Nor do the invoices or records specify what constitutes as life and skill development. I also acknowledge that the incident report, dated December 1, 2021, has a 20-minute duration listed for the incident, however once again, in the corresponding invoice, there is no length of time noted, nor whether this incident is included in the definition of life and skill development.

30Furthermore, in the corresponding invoice, dated December 16, 2021, it states that six quantities of Life and Skill Development services were provided at the unit price of $40.00. However, once again, there is no reference to whether this included the incident that took place on December 1, 2021, and if so, what portion of that amount was towards that incident.

31Consequently, in the absence of this information, it is not possible to assess whether the services meet the definition of incurred under the Schedule.

32Next, I am not persuaded by the applicant’s position that these records demonstrate that she was provided services as outlined in the Form 1. I am alive to the fact that there was a word document that outlines her daily activities, and that there was an emphasis on the applicant developing skills to communicate her requests to staff, self-recognition and self initiating appropriate outlets of her movement needs. However, once again, neither in the records nor the invoices, are there any reference to the applicant being provided services to ensure comfort, safety, and security in the environment. Rather, I have been provided with a daily schedule that outlines activities such as: arrival time, listening to music, painting, snack time, relaxing, sensory input, driving in a van, outings, and driving home. None of these services are listed in the Form 1.

33In short, the evidence tendered by the applicant lacks the requisite details required to determine whether the services provided are compensable, and if so their amounts. I find that the applicant has not established that the incurred invoices are in relation to services outlined in the Form 1.

The expense is not deemed incurred under s. 3(8) of the Schedule

34I find that the expenses are not deemed incurred under s. 3(8) of the Schedule.

35Pursuant to section 3(8) of the Schedule, the Tribunal may deem an expense to be incurred if it finds that the insurer unreasonably withheld or delayed payment of the benefit, and as a result the expense was not incurred.

36The applicant argues that the respondent has unreasonably withheld or delayed payment of her attendant care expenses as it did not take any further steps once it received the requested records from Person Centered Care of Niagara on January 16, 2023. Further, she submits that the respondent has not requested further clarification since receiving these records which she submits demonstrates that she incurred the expense. Finally, she argues that the respondent never gave her any reason for maintaining its denial of her attendant care expenses, despite receiving the records, until its submissions.

37First, as noted above, the applicant has not demonstrated that the services provided in the invoices are in relation to the recommended services under the Form 1. In other words, while the applicant has incurred expenses, she has not demonstrated that these services are the ones outlined in the Form 1, which the respondent has agreed to pay for.

38Second, while the applicant argues that the records were sent on January 16, 2023, the email tendered to support this, is undated. Also, while the applicant argues that these records were sent to the respondent, the email indicates that it was sent to the respondent’s representative office. It is well-settled that submissions are not evidence. In any event, as per the Case Conference Report and Order, dated February 9, 2023, the respondent had requested that the applicant provide details of any attendant care that has been incurred since the accident. Thus, I disagree with the applicant that she has been unaware on why the incurred ACBs were being denied, as the respondent requested details at the case conference, despite arguably being in possession of the records from Person Centered Care of Niagara. Therefore, I find that the respondent did not unreasonably withhold or delay payment of the incurred ACBs.

39Further, a plain reading of s. 3(8) also indicates that an expense may be deemed incurred if it was not incurred as a result of the respondent’s unreasonable withholding or delaying of the benefit. Here, the applicant has incurred expenses for services that are not included in the Form 1. The records provided to the respondent allegedly on January 16, 2023, still demonstrate that the applicant was provided with services that are not outlined in the Form 1. Thus, the applicant still has incurred expenses unrelated to the Form 1. Meanwhile s. 3(8) allows the Tribunal to deem incurred ACBs if the respondent’s unreasonable withholding or delaying of the benefit, results in the expense not being incurred.

40In short, the applicant has not established that the respondent unreasonably withheld or delayed payment of the incurred ACBs, and in any event, the ACBs pertain to services not included in the Form 1.

41I am also not bound by the authorities cited by the applicant and I also find that the factual matrix are distinguishable from the matter before me.

42For instance, in 17-006651 v. Aviva Insurance Company, 2018 CanLII 95570 (ON LAT), the Tribunal determined that s. 3(8) was not triggered as the respondent did not unreasonably withhold or delay payment of ACBs. Rather, the Tribunal found that the expenses were incurred, based on the invoices provided. Here, I have determined that the incurred expenses are not payable because they are not related to the services in the Form 1.

43Correspondingly, in 17-005010 v. Aviva Insurance Canada, 2018 CanLII 81879 (ON LAT), there was no dispute before the Tribunal as to whether the invoices were for services as outlined in the Form 1. Rather, the respondent argued that since the applicant incurred expenses, this precludes him from having additional expenses deemed incurred, which the Tribunal rejected. Respectfully, this authority has no bearing here, as once again, the expenses that have been incurred are unrelated to the Form 1, and the applicant has not established how the respondent’s alleged lack of a response to the records from Person Centered Care of Niagara amounts to unreasonable withholding or delaying of the benefit.

44As a result, I decline to deem the expenses incurred under s. 3(8).

The applicant is not entitled to ACBs beyond February 22, 2022 to date and ongoing

45I find that the applicant is not entitled to ACBs for this time period. She has not met her burden to demonstrate that the attendant care services are reasonable and necessary.

46The applicant concurs that she required near constant supervision and care prior to the accident due to her pre-existing condition of non-verbal autism. She further argues that most of this care was provided by her family and school which resulted in little to no economic loss. However, she argues that following the accident, her behaviour became more violent and unpredictable both at home and at school. This resulted in her requiring to pay for service providers as family and school were no longer an option. To this end, she relies upon a Disability Certificate (“OCF-3”), dated May 17, 2018, completed by her family physician, Dr. N.A. Marchi, and his records, the records of Bethesda Community Services, and Niagara Children’s Centre, and an Attendant Care Assessment, dated May 31, 2018, completed by Maha Wakim.

47The respondent argues that there is no evidence to support the applicant’s suggestion that her behavior changed as a result of the accident. It submits that the applicant’s past medical history establishes behavioural issues, including aggressive behaviour prior to the accident. It takes the position that these pre-existing issues have continued following the accident and have nothing to do with the accident. It relies upon the records of Dr. Hilda Makken, pediatrician, a report dated November 8, 2018 completed by Dr. Kaleem Ashraf, pediatrician, a report dated March 15, 2019, completed by Dr. Oleg Savenkov, psychiatrist, the records from Niagara Catholic District School Board, and the s. 44 In-Home Assessment Report of Dr. Atul Kaul, Occupational Therapist, dated December 14, 2021.

48The crux of the dispute before me is whether the accident resulted in behavioural changes in the applicant, which in turn, requires increased attendant care services. I find that it did not.

49First, the evidence before me reveals that the applicant had behavioural and violent outbursts prior to the accident. I am alive to the applicant’s position that the records of Dr. Marchi do not have entries pertaining to pre-existing violent or aggressive behavior. However, upon review of the records, I note that it appears that the applicant became a patient of Dr. Marchi on December 16, 2016. To this effect, there is a clinical entry, dated December 16, 2016 which states “registration”, and there are no entries before this date. In any event, there is other evidence, such as the schooling records, community records, and medical records, which all prove that the applicant had behavioural issues and violent outbursts prior to this accident.

50Notably, the records of Niagara Catholic District School Board show that the applicant had behavioural issues, including violent outbursts, prior to the accident. This is shown in the safety plan, dated December 17, 2012, two elementary school provincial report cards, dated February 5, 2016, and June 28, 2017, a student conduct report dated May 16, 2017 and a phone log note, dated April 17, 2018.

51In the safety plan, it was noted that the applicant is at risk of physical aggression and putting herself and others in danger. Significantly, it was noted that the applicant had specific behaviours such as: kicking, pulling hair, pinching, grabbing, biting, screaming, pushing, throwing objects including computer monitors, and hitting staff with an open hand.

52Likewise, the elementary provincial report cards, dated February 5, 2016 and June 28, 2017, both note that the applicant had struggled with outbursts, and had been aggressive with staff members.

53Correspondingly, in the student conduct report, an incident was reported where the applicant pulled on the bus driver’s ponytail. Furthermore, in the phone log note, the applicant’s mother advised that they were collaborating with the school to address issues with “some aggression that they have been noticing.” As such, these records clearly demonstrate that the applicant had behavioural issues at school prior to the accident.

54The records from Bethesda Community Services and Niagara Children’s Centre also document the applicant’s numerous pre-existing behavioural issues, including violent outbursts. Indeed, in an entry dated November 22, 2017, it was noted that the applicant had been having lots of issues with behaviour at school, including aggressive episodes of throwing chairs and flipping chairs. Additionally, on May 30, 2017, a worker from the Bethesda Community Services spoke to the applicant’s mother and noted that there was concern from the school about the applicant’s disruptive behavior.

55Now, turning to the records of Dr. Makken which also support that the applicant had behavioural issues prior to the accident. For instance, on March 18, 2016, Dr. Makken, noted that the applicant’s aggressive behaviour was becoming more problematic and presented as a safety concern for others. Crucially, Dr. Makken wrote “As her age and size are increasing, the family is concerned about negative repercussions.”

56To summarize, the school records, community records, and medical records demonstrate that the applicant had significant behavioural issues prior to the accident, which both her family and school were concerned about.

57Second, I am not persuaded by the applicant’s position that this accident has increased her behavioural issues, and therefore she requires increased attendant care. I acknowledge that she relies upon the OCF-3, dated May 17, 2018, however I place little weight on this evidence for the following reasons. Dr. Marchi’s opinion in this OCF-3 is not supported by his own records. In the actual records, Dr. Marchi did not provide an opinion of whether the accident resulted in behavioural changes for the applicant. Rather, he referred the applicant to specialists, such as Dr. Ashraf and Dr. Savenkov to determine how to treat her behavioural issues. Critically, the applicant has not directed me to one entry from Dr. Marchi’s records that supports she experienced behavioural changes as a result of the accident.

58This OCF-3 is also not supported by other contemporaneous medical evidence, such as the reports of Dr. Ashraf and Dr. Savenkov. Both doctors met with the applicant and noted that there was a lot of behavioural issues at school and home, including aggression and physical violence. However, neither of them provided an opinion that links this behaviour to the accident, as the accident was not even mentioned in the reports. Instead, Dr. Ashraf concluded that the applicant had autism spectrum disorder with anxiety and aggressive behaviour, and that her aggression was secondary to anxiety with limited expression abilities.

59Similarly, Dr. Savenkov diagnosed the applicant with disruptive behaviour disorder and that she was at a high risk for violence due to her previous documented incidents of severe violent attacks, however, once again, there was no reference to the accident, nor the origin of this diagnosis. It is unclear how Dr. Marchi arrived at his diagnosis, as no explanation was provided to elaborate on this, especially since it is not supported by his own records.

60I also prefer the evidence of Mr. Kaul over the evidence of Maha Wakim. Mr. Kaul’s opinion that the applicant required 24-hour supervision prior to the accident, and she does not require additional assistance following the accident, is supported by the contemporaneous medical evidence. On the other hand, Maha Wakim reviewed no medical records and relied solely on the applicant’s mother’s self-reporting to conclude that she required attendant care services due to her alleged behavioural changes as a result of the accident.

61While the applicant submits that prior to the accident most of her care was provided for free by her family and school, and that following the accident, she was required to use paid services, as family and school were no longer frequently an option, the applicant has not referred me to evidence that supports these submissions. It is well-settled that submissions are not evidence.

62Finally, I am not persuaded by the authority cited by the applicant, which is 16-002503 v. State Farm Insurance Company, 2017 CanLII 148017 (ON LAT) (“16-002503”), as the factual matrix is different.

63In 16-002503, there was medical evidence that supported that the applicant had a brain injury as a result of the accident and required attendant care assistance as a result. Here, there is no such evidence which links the applicant’s behavioural changes to the accident.

64All-in-all, I find that the evidence is lacking to support the applicant’s position that this accident resulted in changes to her behaviour. Therefore, the proposed ACBs are not reasonable and necessary.

65For all these reasons, I find that the applicant has not established that the proposed ACBs are reasonable and necessary as a result of the accident.

Interest is not payable

66Having found the applicant is not entitled to payment for the services provided, I conclude she is not entitled to interest pursuant to section 51 of the Schedule.

The respondent is not liable to pay an award

67The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. In this case, the respondent is not liable to pay an award as no benefits have been unreasonably withheld or delayed.

ORDER

68For the reasons outlined above, I find that:

I. The applicant is not entitled to ACBs, nor interest.

II. The respondent is not liable to pay an award.

III. The application is dismissed.