Licence Appeal Tribunal File Number: 23-000766/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:
Shoba Kolapully
Applicant
and
TTC Insurance Company Limited
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Mireille Dahab, Counsel
Avneet Kaur, Counsel
For the Respondent:
Nathalie Rosenthall, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shoba Kolapully, the applicant, was involved in an automobile accident on March 6, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TTC Insurance Company Limited, 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 $2,290.50 for hydrotherapy proposed by NCCO Rehabilitation Services in a treatment plan/OCF-18 submitted on January 3, 2023?
ii. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $2,250.00 submitted on August 20, 2022, by New Age Specialized Assessments for February 1 to 28, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent entitled to costs against the applicant?
3In her submissions, the applicant advised she was withdrawing the issue of entitlement to the treatment plan for hydrotherapy (i above).
4In its submissions, the respondent requested costs against the applicant.
RESULT
5The applicant is entitled to ACBs in the amount of $745.00 for the period of February 1 to 28, 2022.
6The respondent is not liable to pay an award.
7The applicant is entitled to interest on any overdue payment of benefits.
8The respondent is not entitled to costs.
ANALYSIS
Attendant care benefits
9I find that the applicant is entitled to ACBs in the amount of $745.00 for the period of February 1 to 28, 2022.
10Section 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 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”).
11The applicant submits that New Age Specialized Assessments Ltd. (“New Age”) submitted invoices on February 18, 2022, for ACBs from February 1 to 17, 2022, and on March 30, 2022 for ACBs from February 18 to 28, 2022, and that on July 9, 2022, it provided the respondent with documents and detailed log sheets that were requested. The applicant further submits that, despite numerous follow-up attempts, the respondent has not offered an explanation or further communication regarding payment of the invoices and that she remains unaware of the reason for the denial or non-payment of the invoices. The applicant also submits that log notes provided by the respondent appear to deliberately omit any mention of the issue.
12The respondent submits that the Financial Services Commission of Ontario’s Guideline No. 01/18 (“Guideline”) establishes the maximum hourly rates used to calculate the maximum monthly ACBs in accordance with s. 19(2)(a) of the Schedule. The respondent further submits that it requested written confirmation as to the fee breakdown, as the submitted hourly rate was well beyond the allowable hourly rate under the Guideline. According to an invoice dated February 18, 2022 from New Age that was filed by the applicant, New Age charged an hourly rate of $45.00. The respondent filed an Explanation of Benefits dated December 5, 2022 addressed to the applicant, indicating that it partially approved the invoices at the maximum hourly rate of $14.90 per hour. The Explanation of Benefits confirmed that payment for the ACBs for the period of February 1to 28, 2022 in the amount of $745.00 for 50 hours had been issued to New Age. The respondent submits that it correctly paid the disputed invoices in accordance with the Guideline.
13There is a dispute between the parties as to whether payment was made to New Age. In reply, the applicant submits that no payment was ever received by New Age, and the respondent did not mention the partial payment in their response to the application or in their case conference summary, nor did it request an amendment to the disputed issue as set out in the Case Conference Report and Order (“CCRO”). The applicant filed email correspondence between the applicant’s counsel and New Age dated February 7 and 8, 2024, wherein New Age advised that the respondent had still not issued payment. Further, the applicant submits that the respondent’s correspondence indicating that payment was made does not constitute proof of payment, and that she did not receive the correspondence dated December 5, 2022 from the respondent prior to receiving its submissions.
14The applicant did not make submissions to justify payment above the Guideline rate, other than in her request for an award, referring to the respondent as “arguing for an hourly rate below minimum wage.” I find that the applicant has not established entitlement to an hourly rate for ACBs above the maximum payable pursuant to the Guideline. I find that the applicant is entitled to ACBs in the amount of $750.00, which represents the 50 hours billed, at a rate of $14.90 per hour, which is the maximum rate payable pursuant to the Guideline.
15Based on the evidence before me, it is unclear whether the respondent has paid New Age or not. In any event, I find that this question is not properly before me so I will not address it.
Interest
16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
17I find that the applicant is not entitled to an award.
18The 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.
19The applicant submits that the respondent incorrectly redacted adjuster log notes predating the denials listed on the application, as ordered in the CCRO. The applicant argues that the log notes up to the date of the denials of the application are not privileged. This issue has already been addressed and denied by Vice-Chair Lake in a motion released on January 24, 2024, who found that the applicant had not pointed to any authority that permits the Tribunal to order unredacted log notes and that s. 5.4(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 expressly prohibits the Tribunal from making an order requiring disclosure of privileged information.
20The applicant further submits that there is an issue regarding the legitimacy of asserting litigation privilege throughout the entirety of the log notes, as a reasonable and sufficient explanation for the redactions must be provided even for log notes qualifying for litigation privilege. The applicant refers to Tribunal decisions dealing with the production of log notes, as well as the explanation to be provided for redactions. I find, however, that none of the decisions cited by the applicant ordered an award against the respondent based on the improper redaction of log notes.
21The applicant further submits that an adverse inference should be drawn against the respondent due to its failure and/or refusal to produce documents as mandated in the CCRO, stemming from the belief that the respondent’s non-compliance severely hampers the applicant’s ability to present a fair and comprehensive claim for an award.
22The respondent argues that the redaction of log notes is irrelevant to the assessment of an award because the way in which the respondent redacted log notes does not speak to the unreasonable withholding or delay of payments. Further, the respondent points to an email exchange between the parties where the respondent discussed having provided the applicant with a letter indicating the basis for the log note redactions, attached to an email dated November 15, 2023. I am unable to open that letter.
23The applicant further submits that she is entitled to an award because the respondent unreasonably withheld or delayed payment of the ACBs as the denial was arbitrary, unfounded and without explanation or basis. In addition, the applicant asserts that the respondent arguing for an hourly rate below minimum wage constitutes improper, excessive, and inflexible behaviour.
24There is evidence before me that the respondent did not withhold payment of the ACBs, but rather partially paid them in accordance with the Guideline, and the reason for partial payment was set out in the Explanation of Benefits. I find that the applicant’s main submissions relate to whether the respondent paid the ACB invoices, which is not before me as an issue, and that regardless of what is contained in the log notes, the respondent would not be liable to pay anything more than the Guideline amount. As such, I decline to draw an adverse inference against the respondent.
25It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
26I find that the respondent agreed to pay the ACBs at the maximum allowable rate pursuant to the Guideline. The Divisional Court in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 clearly set out that the hourly rate for ACBs is not to exceed the maximum imposed by the Guideline. Partial payment in accordance with the Guideline was reflected in the respondent’s Explanation of Benefits dated December 5, 2022. Further, I find that the respondent’s conduct does not amount to excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct. In these circumstances, I see no basis for making an order for an award.
The respondent is not entitled to costs
27I find that the respondent is not entitled to costs.
28Rule 19.1 of the of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may make a request to the Tribunal for costs.
29Rule 19.5 of the Common Rules outlines the relevant factors which should be considered by the Tribunal when determining whether to order costs and the amount of costs to be awarded, which include the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system. Rule 19.6 allows for a maximum of $1,000.00 for each full day of attendance at a motion, case conference or hearing.
30In its submissions, the respondent made a request for costs against the applicant on the basis that her application is frivolous and vexatious and that it had to incur costs defending the application. The applicant did not address the issue of costs in her reply.
31I find that the respondent did not point to any behaviour on the part of the applicant that is frivolous and vexatious, other than the fact that she brought an application, which she is entitled to do. Cost awards under Rule 19 are to maintain civility and order during proceedings, to deter conduct that threatens the orderly and civil resolution of an application, and to ensure that the Tribunal’s process and the other participants are respected. They are not to compensate parties for suffering an inconvenience or for the cost of their involvement in a proceeding.
32For these reasons, I find that the respondent has not provided sufficient evidence to satisfy Rule 19.1 and its claim for costs is dismissed.
ORDER
33The applicant is entitled to ACBs in the amount of $745.00 for the period of February 1 to 28, 2022.
34The applicant is entitled to interest on any overdue payment of benefits.
35The respondent is not liable to pay an award.
36The respondent is not entitled to costs.
Released: December 19, 2024
__________________________
Laura Goulet
Adjudicator