Licence Appeal Tribunal File Number: 25-004660/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:
Stephanie Villella
Applicant
And
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Eric Winkworth, Counsel
For the Respondent:
Michael Kennedy, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Stephanie Villella (“the Applicant”), was involved in an automobile accident on March 1, 2023 and sought benefits from Wawanesa Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Do the application of sections 19(3) and 3(7)(e)(iii) of the Schedule violate the Ontario Human Rights Code (“the Code”) and, if so, what can the Tribunal do about it?
RESULT
3I find that sections 19(3) and 3(7)(e)(iii) of the Schedule do not violate the Code.
BACKGROUND
4The Applicant sustained a catastrophic impairment when she was struck by a vehicle. As a result of the accident, she sustained a traumatic brain injury, cranial fractures, mildly displaced fractures of her left leg, fractures to her neck, pelvis fractures, and several other injuries.
5As a result of her catastrophic injuries and according to her Form-1, the Applicant qualified for attendant care benefits (“ACBs”) at the rate of $6,000.00 per month. She also qualified for housekeeping and home maintenance benefits (“HH”) at the rate of $100.00 per week.
6There is no dispute amongst the parties about the quantum of ACBs or HH that the Applicant entitled to claim.
7At issue is the application of sections 3(7)(e)(iii) and 19(3) of the Schedule. Together, these sections differentiate the compensation for professional service providers who provide services for the Applicant, versus the compensation for non-professional service providers such as the Applicant’s husband and mother for the same services. Professional service providers are entitled to compensation for services provided, subject to the limit outlined in the requisite Form-1. Compensation for non-professional service providers is limited to their demonstrated economic loss, subject to the limit outlined in the requisite Form-1.
8To the Applicant, the discrepancy between compensation for professional service providers versus non-professional service providers unfairly affects insured persons based on family status, preventing them from fairly compensating family members for ACBs and HH.
ANALYSIS
The Schedule
9The relevant section of the Schedule is 3(7)(e). That section provides that, subject to subsection (8), an expense in respect of goods or services referred to in the Regulation 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, had 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 or service to the insured person.
10In Henry v. Gore Mutual Insurance Company, 2013 ONCA 480 (“Gore”), the Court of Appeal confirmed that the economic loss referred to in section 3(7)(e) is the threshold for payment for goods and services provided by family members or friends. The Court of Appeal in Gore also held that the requirement to demonstrate an economic loss provides a rough check on costs associated with ACBs because prior accident-benefit schemes were believed to be abused by insured persons with minor injuries who are claiming and receiving ACBs.
11Section 19(3) of the Schedule outlines the maximum amount of ACBs payable per month. It notes that the standard limits are $3,000.00 per month for non-catastrophic impairments and $6,000.00 per month for catastrophic impairment. It is also noted that the monthly limit may be augmented by purchasing optional benefits.
Position of the parties
12To the Applicant, the requirement to demonstrate an economic loss constructively discriminates against her and her family members, namely her mother and her husband, who provide her care. This is because, according to her, family members are unfairly excluded from compensation for providing ACBs due to their relationship to the insured person and the notion in Gore that the 2010 changes to the Schedule were intended to limit compensation payable to family members.
13To the Applicant, part 1 of section 11 of the Code is met because Court decisions have made findings of legislative intent to discriminate based on family status, and that has resulted in discrimination against her and her family. To the Applicant, the limitation of ACB expenses to a non-professional provider’s economic loss forces her to subject herself to the indignity and vulnerability of having a stranger care for her if she wishes to preserve her dignity of compensating her caregivers fairly for their labour. The Applicant submits that she is denied the ability to be reimbursed fair compensation for the caregiving services provided by her family members.
14The Applicant submits that the discrimination has nothing to do with training or qualifications. This is because, according to her interpretation of Gore and Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014 (“Shawnoo”), the Schedule bars trained family members from being fairly compensated for their services, but according to Helmer v. Belairdirect Insurance Company, 2018 ONSC 2888 (“Helmer”) persons with qualifications but no experience do not need to prove economic loss, but instead must show that they were working or looking for work on the date of the provision of services.
15The Respondent submits that the Applicant has not demonstrated any discrimination or adverse treatment. It submits that the Applicant is not being discriminated against due to her disability and, instead, she has access to benefits because it is her disability that provides her entitlement to ACBs. The Respondent is also critical of the Applicant’s submission that her disability makes her vulnerable to strangers. It submits that the Applicant has not demonstrated this vulnerability and that it is common knowledge that the most vulnerable people in our society, elders and those requiring in-patient care, receive care from qualified service providers, despite the providers being “strangers” as characterized by the Applicant.
16The Respondent also submits that the Applicant is not discriminated against by way of her marital or family status. It submits that the Schedule gives all claimants the option of retaining professional service providers, or alternatively, family members and friends to provide attendant care. It submits that the only difference is the compensation that family members and friends receive who do not provide attendant care in the course of their employment. It highlights that the request for information on an economic loss for the service providers who do not typically provide attendant care services would go to all service providers in that category, regardless of their relationship to the Applicant.
17Moreover, the Respondent submits that Applicant does not meet the third part of the prima facie test, which requires a connection between the protected status and the discrimination. It submits there is no connection between the status and the discrimination because the issue is not whether the Applicant is married or has a mother, but rather that the non-professional service providers are not providing ACBs in the course of their employment.
The Code
18The Tribunal is obligated to consider and apply the Code (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14). Relevant to this case, the Code provides that every person has a right to equal treatment without discrimination because of marital and family status, and disability. To the parties, this hearing relates to section 11 of the Code, which addresses constructive discrimination.
19Section 11 of the Code states the following:
(i) A right of a person under Part 1 is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where:
a. The requirement, qualification or factor is reasonable and bona fide in the circumstances; or
b. It is declared that this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(ii) The [Ontario Human Rights Tribunal] or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
20Section 17 of the Code states:
(i) A right of a person under the Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of the disability.
21The three-part legal test to determine constructive discrimination is for the Applicant to demonstrate on a balance of probabilities that she is a member of a group protected by the Code, that she is or was subject to adverse treatment, and that her protected status was a factor in the alleged adverse treatment. This is known as the prima facie test (Shaw v. Phipps, 2012 ONCA 155)
22If a prima facie case for constructive discrimination is made, the onus shifts to the Respondent to demonstrate that the discrimination is bona fide and reasonable in the circumstances (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868)
Does the Applicant have a characteristic protected from discrimination under the Code?
23Yes, the Applicant has characteristics protected from discrimination. She sustained catastrophic injuries as a result of an accident, leaving her with a disability. Additionally, the Applicant is protected from discrimination due to marital and family status. She alleges that she experiences adverse treatment due to her relationship with her spouse and her mother.
24The next part of the test is to establish if the Applicant experiences adverse impact with respect to the services sought. In this case, I must assess whether limiting the Applicant’s payable expenses for ACBs to the service provider’s economic loss, as outlined in section 3(7)(e) of the Schedule, results in discrimination against her on the basis of her disability, family or marital status.
Does the Applicant experience adverse impact with respect to the administration ACBs?
25No, the Applicant has not demonstrated that she experiences adverse impact with respect to the incurred provisions for ACBs, as outlined in sections 19(3) and 3(7)(e)(iii) of the Schedule, due to her disability or her relationship to her spouse or mother.
26As outlined in Robinson-Cooke v. Ontario (Community and Social Services), 2023 HRTO 1133, there is no free-standing right of accommodation. The Applicant must demonstrate that she experiences direct or indirect discrimination arising from or related to her disability status or her relationship to her mother or spouse. The Applicant has an obligation to provide a reasonable amount of information about her disability related needs.
Disability status
27I find that the Applicant does not experience adverse impact with respect to the administration of ACBs on account of her disability status. The Applicant led no evidence demonstrating that she requires her mother or husband to provide care for her because she is vulnerable due to her disability. Thus, I find that it is the Applicant’s preference, not a requirement, to have her husband and mother provide care to her.
28While persons with disabilities may, in some contexts, be considered part of a vulnerable group, the Applicant has not demonstrated that the Schedule imposes a particular disadvantage on her as a result of her disability status. Healthcare providers routinely care for individuals with disabilities, and there is no evidence before me that the Applicant’s disability renders her more susceptible to harm or less able to benefit from such care. Accordingly, I do not accept that the Schedule treats her differently or diminishes her dignity on the basis of disability.
29Accordingly, I find no evidence of discrimination or constructive discrimination of the Applicant based on her disability status.
Marital and family status
30I find that the Applicant has not demonstrated that the incurred expense provisions were enacted to limit payments specifically to family members who provide ACBs to injured persons. I find that Gore concludes that the economic loss factor serves as a threshold for entitlement to ACBs. Gore also provides that the requirement to have ACBs calculated by a nurse or occupational therapist (“OT”) in a Form-1 makes it clear that the underlying premise that, once entitlement is established, the amount of the benefit is based on the person’s needs.
31Gore comments on the changes in the Schedule relating to an incurred expense but does not find it as fact that the changes were enacted for the reason of limiting compensation to family members. This decision by the Court of Appeal is the current iteration and is binding upon me.
32In the earlier decision in Gore, which the Applicant referred to in her submissions, the Divisional Court noted the following in the decision:
The latest version was apparently to prevent a member of an insured’s family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway – and would have looked after the injured insured without compensation.
33To the Applicant, the Divisional Court ruling established that the changes to the Schedule regarding incurred expenses were instituted to limit compensation specifically to family members.
34I find the Divisional Court’s comment on the intent of the changes to the incurred provision to be obiter and not a finding of fact. Foremost, the use of the word “apparently” indicates that some ambiguity remains in the determination made by the Divisional Court. Additionally, the decision never turned on the intent of the changes and the Court of Appeal chose not to include the same language in its decision, which suggests that the Court of Appeal also concluded that it was not a finding of fact.
35I characterize the decision of the Court of Appeal in Gore as highlighting the historical circumstances which led to the incurred provision in the Schedule. It notes that a report by the Financial Service Commission of Ontario (“FSCO”), which preceded the changes to the Schedule, found that certain regions were experiencing an over-utilization of ACBs, and anecdotal evidence that claimants with minor injuries were claiming and receiving ACBs. Critically, the FSCO report addressed in Gore, which discussed the issue of over-utilization of ACBs, refers to “family members and friends” who provide ACBs.
36The incurred provision applies to all service providers, be it family, friend, neighbour, associate, or good Samaritan stranger. Requiring a non-professional service provider, regardless of their membership in a protected class, such as marital/familial status or disability, to confirm an economic loss does not violate any human rights. Instead, the requirement seeks confirmation that the service provider sustained an economic loss, ensuring that the service provider instituted the care and does not receive a windfall or benefit in a situation where they never provided care, as was reported by FSCO. In this case, like with all claims under the Schedule, the insured person may select the care provider they wish, and the corresponding rate is engaged. This selection is driven solely by the Applicant’s preference and is not dictated by insurers or the Schedule.
37The Schedule typically does not compensate accident victims for non-tangible losses. Aside from a non-earner benefit, the Schedule does not compensate accident victims for things like pain and suffering, or opportunity loss. Instead, these losses are typically recovered by way of tort action, if applicable. Requiring proof of an economic loss in the accident benefit realm is in keeping with this practice of not paying for intangible losses.
38I acknowledge the Applicant’s submissions that the incurred provision disproportionately discriminates against family members, because family members are most likely to provide care other than a person providing the services through the course of their employment. I find this argument holds no weight for two reasons. First, the incurred provision is applied universally, regardless of the person’s relationship to the insured. That is, it applies to neighbours, friends, and acquaintances as equally as it does to family members. Second, because the insured person has the option to select their service provider and, if they wish to be able to fully compensate that service provider through the benefits they receive from their insurer, then they ought to retain the services of a professional or a service provider who suffers a measurable economic loss, as outlined in Gore.
39Family members are not barred from receiving full compensation if they meet the required qualifications. The Applicant’s family members would be entitled to payment of the full amount of ACBs if they provided ACBs throughout the course of their employment, occupation or profession in which they would ordinarily have been engaged, but for the accident. The only reason why they are not compensated fully is they do not normally provide attendant care services – not because they are relatives of the Applicant. Including a rough check on costs associated with ACBs to limit abuse of the benefit is not a discriminatory practice. Thus, it cannot be said that the Schedule discriminates based on family status.
40The Applicant chose to retain the services of her family members instead of a professional service provider. Here, the Applicant had the opportunity to hire a professional service provider, in which case they would be paid in accordance with the Form-1 and would not be subject to the incurred provision. Instead, the Applicant chose to hire non-professionals to provide care for her, and the consequence of that decision is that payments made to her for ACBs are equivalent to the service provider’s economic loss. The fact is, the Applicant made the choice to hire non-professional service providers in light of the incurred provision, and her displeasure with the compensation she is permitted through the Schedule is not a violation of her rights.
Insurance should not result in a windfall
41Compensating non-professional service providers for their economic loss is an effort to expand benefit coverage and does not result in a violation of the Applicant’s human rights due to her disability, her family status, or the choice of her ACB provider.
42As previously stated, the Applicant is not required to receive ACBs from family members, but instead made a choice to employ them, knowing that she would be compensated in accordance with their demonstrable economic loss for providing the services.
43Compulsory auto insurance serves as a safety net for a society, which compensates accident victims for their losses. In the Applicant’s case, there is no tangible loss to account for. Her mother is retired and never sustained an economic loss and her husband’s employer accommodated his schedule so that he could provide ACBs to the Applicant without suffering a loss of income. Paying the non-professional service providers the rate of a professional service provider would then result in a windfall for those service providers who would never have ordinarily provided the service if not for the accident. On the other hand, professional service providers do not receive a windfall because they would be providing goods and services regardless of whether the Applicant was injured – it would just be to a different customer.
CONCLUSION AND ORDER
44The provisions in sections 3(7)(e) and 19(3) of the Schedule do not violate the Applicant’s human rights on the basis of her family status or disability. The provisions apply universally to all service providers. The Applicant chose to employ the services of family members instead of a hiring a professional who provides the services in the course of their employment, occupation or profession in which they would ordinarily have been engaged, but for the accident.
Released: November 5, 2025
Brian Norris
Adjudicator