Citation: Bakal v. Intact Insurance Company, 2024 ONLAT 22-005286/AABS

Licence Appeal Tribunal File Number: 22-005286/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:

Sahal Bakal

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

David Hollingsworth, Counsel

For the Respondent:

Nisaa Khan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sahal Bakal, the applicant, was involved in an automobile accident on July 30, 2020, 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 the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

(i) Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from July 30, 2020 to February 26, 2021?

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

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the attendant care benefits in dispute, interest, or an award.

ANALYSIS

4Section 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. Section 42(1) of the Schedule provides that an application for attendant care benefits must be in the form of, and contain the information required to be provided in, an Assessment of Attendant Care Needs (“Form 1”).

5The applicant submitted a Form 1 on September 14, 2020, which stated that he required $10,445.42 in monthly attendant care benefits. The parties do not dispute the amount in the Form 1. The dispute in this case involves whether the benefit has been incurred, pursuant to s. 3(7)(e) of the Schedule.

6Section 3(7)(e) states that an expense in respect of goods or services is not incurred by an insured 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 and services to the insured person.

7In order to be successful, the applicant has an obligation to prove all three of the above components.

8The applicant submits that his wife, Neima Said, who is a certified personal support worker, provided him with attendant care services from July 30, 2020 to February 26, 2021. He submits that Ms. Said falls under s. 3(7)(e)(iii)(A) of the Schedule. He claims $3,000.00 per month for these services.

9The respondent’s position is that the expenses have not been incurred, and are therefore not payable.

10For the reasons below, I find that he has only satisfied one of the three components of the analysis under s. 3(7)(e), and is accordingly not entitled to payment for the attendant care services claimed.

The applicant failed to provide adequate proof of the goods or services to which the expenses relate

11With respect to the services performed by Ms. Said, the applicant has provided me with a statutory declaration, an OCF-6, and a spreadsheet showing monthly services provided. The statutory declaration was completed by Ms. Said, and states that she helps the applicant with meal preparation, taking a shower, going up and down the stairs, and supporting him with his mental health. It states that from August 2020 to March 2021, she helped him every day from 7 a.m. to midnight (17 hours per day), and now she helps him from 5 p.m. to 7 p.m. (2 hours per day). It indicates that she began providing services for him on July 30, 2020.

12The OCF-6, dated May 21, 2021, indicates “Attendant Care Services provided by Ms. Neima Said” in the amount of $30,000.00. It states that between August 10, 2020 – August 31, 2020, the amount was calculated as “$10,445 / 31 days x 21 days > $3000”. Between September 2020 and May 2021, the amount was calculated as “9 months x $3000”. No further detail is provided.

13Finally, the spreadsheet of monthly services is undated, and there is only one. It shows 60 hours per month for meal preparation, 7.5 hours per month for showering, 15 hours for support with stairs, and 420 hours for support with mental health ensuring the applicant’s safety. The total monthly services is 502.5 hours per month. The frequency of each task is indicated as “daily”. There is no other detail provided in this spreadsheet.

14The respondent submits that the applicant has failed to provide proof of his incurred expenses under s. 3(7)(e). He has not provided any details of the expenses claimed, such as dates, approximate times, itemized services incurred, minutes or hours per task, rate of pay, or details of what the tasks entailed. It submits that vague invoicing or accounts that are identical from month to month do not meet the applicant’s evidentiary burden (Dulepa v. Aviva Insurance Company of Canada, 2023 CanLII 52302).

15I agree with the respondent. The only itemization provided was the spreadsheet which did not differ from month to month, and which only provided four categories of service without further detail. The OCF-6 indicates that the monthly amount was calculated based on the amount listed in the Form 1. I agree with the reasoning of the Tribunal in Dulepa, which encountered a very similar situation. The Tribunal found that vague invoicing did not meet the evidentiary burden required by the Schedule, and stated:

I 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.

16In this case, I have not been provided with any invoices to accompany the OCF-6. I find that the only evidence produced does not meet the applicant’s evidentiary burden, as it lacked detail, and was the exact same each month.

17I accordingly find that the applicant has failed to demonstrate that he received the attendant care services claimed, pursuant to s. 3(7)(e)(i) of the Schedule.

The applicant has not proven that he has paid, promised to pay, or is otherwise legally obligated to pay the expenses

18The respondent submits that the applicant has failed to provide evidence that he paid or promised to pay attendant care to Ms. Said in accordance with s. 3(7)(e)(ii). There is no evidence that Ms. Said prepared any invoices which could potentially be construed as a promise or contractual obligation to pay them. The applicant did not make any submissions with regard to s. 3(7)(e)(ii). I agree with the respondent that there is no evidence before me that this prong of the analysis has been satisfied. I therefore find that the applicant has not demonstrated any payment, promise to pay, or legal obligation to pay the expenses.

The goods and services were provided in the course of Ms. Said’s employment, occupation or profession in which she would have ordinarily have been engaged

19Ms. Said was employed at We Care/CBI Home Health Services since 2017. Her title was Casual Personal Support Worker. As a result of the Covid-19 pandemic, she stopped working in order to take care of her children. On February 27, 2021, she returned to her same employer in the same role.

20The respondent argues that it is not enough for Ms. Said to have been trained as a personal support worker. She has to have been providing services in the same manner as she was providing in the course of her normal employment (Y.D. v. Aviva, 2017 CanLII 43883). The respondent notes that at the time of the accident, she was not working due to childcare obligations. Further, she worked as a casual personal support worker, with flexible hours, and did not normally provide 24-hour care.

21I do not agree with the respondent. Ms. Said was not working because of the pandemic, but demonstrated an intent to continue to do so, as she returned to the exact same job in February 2021. At the very least, her profession remained the same before and after the accident.

22I find that Y.D. is distinguishable, as that involved a fertility physician who was taking care of his wife. He was not a professional that predominantly provided for the type of care specified in the Form 1. In this case, Ms. Said’s profession was to provide these types of services.

23Nothing in the Schedule suggests that the flexibility or casualness of one’s employment is necessarily detrimental to this analysis. What matters is the person’s ordinary employment, profession, or occupation. To state otherwise would not be in keeping with the letter or spirit of s. 3(7)(iii)A of the Schedule. While Ms. Said’s employer did not define what the word “casual” meant, I do not take it to mean that she was performing tasks other than what a personal support worker would ordinarily perform. Ms. Said’s pre-pandemic employment, as well as her profession and occupation, was to provide personal support worker services. Although I have found above that there is a lack of evidence as to the specificity of the tasks performed, those were generally the tasks that she purports to have been providing to the applicant.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is owing, interest is not payable.

Award

25The 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. As I have found that no benefit is payable, the applicant is not entitled to an award.

ORDER

26The applicant is not entitled to the attendant care benefits in dispute, interest, or an award.