RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 17-002762/AABS
Case Name: Lucia Derenzis v. Gore Mutual Insurance Company
Written Submissions by:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Arthur R. Camporese, Counsel
OVERVIEW
1On March 18, 2025, the applicant requested reconsideration of the Tribunal’s decision released February 25, 2025 (“decision”).
2Stemming from an automobile accident on November 24, 2015 and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”), the parties participated in a videoconference hearing from April 17 – 23, 2023. Adjudicator Prowse conducted the hearing.
3Following the hearing, the parties were informed by the Tribunal that the adjudicator who conducted the hearing would be unable to provide a decision (motion order dated June 19, 2024). As I described at paragraph 2 of the decision, “the Tribunal ordered this matter to ‘proceed by having a new adjudicator review the existing record (i.e., the recording and/or transcript of the hearing and all records that were made exhibits at the hearing) and render a decision.’”
4In the decision, I found the applicant had not established that she was entitled to any outstanding attendant care benefit (“ACB”) payment. A summary of this conclusion is found at paragraph 11:
… I further find the applicant has not established that there is any outstanding ACB payment based on either her daughter’s or husband’s services. For the daughter, I find the applicant has not provided sufficient details about her attendant care services to conduct the analysis required for an ACB claim. I also find the applicant has not established an economic loss for her daughter. For the husband, I find that the applicant has not established that these services were incurred, pursuant to s. 3(7)(e)(iii)(B) of the Schedule. Finally, I will not grant the applicant’s request to use my authority to deem the services incurred under s. 3(8).
5I further concluded that the applicant was not entitled to interest or an award.
6The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
7The applicant relies on Rule 18.2(a) and Rule 18.2(b) in her request for reconsideration.
8The respondent opposes the applicant’s request for reconsideration.
RESULT
9The applicant’s request for reconsideration is granted, in part.
10The applicant’s recusal motion is dismissed.
11Pursuant to Rule 18.4, I have reheard the existing hearing record to render a decision about the quantum of the ACB.
12The applicant has established that the reasonable and necessary quantum of the ACB is $1,962.55 per month from March 21, 2022 to date and ongoing.
RECUSAL MOTION
13Shortly before filing her request for reconsideration, the applicant filed a Notice of Motion on March 14, 2025. As set out in the Notice of Motion at Scheduled Event released to the parties on April 23, 2025, this motion is being addressed as part of this reconsideration process.
14The applicant is seeking an order for my recusal based on: a reasonable apprehension of bias, actual bias, a reasonable apprehension of lack of independence, an actual lack of independence, and institutional bias.
15The applicant alleges that my prior work with the Tribunal (including my adjudication of motions and files with her representative’s firm) strongly suggests that I am unable to act in a manner that is impartial and unbiased. For instance, the applicant claims that the decision at issue “was consistent with the historical conduct of Vice Chair Mazerolle”, pointing, in part, to alleged issues that will be addressed below, e.g., quantum for the ACB. The applicant also highlights prior decisions made by other adjudicators on both this file and a related file as further evidence of bias. Finally, the applicant alleges that I am acting contrary to my oaths as an Order-in-Council appointee, as detailed in O. Reg. 373/07. For the claims of institutional bias and independence, the applicant highlights Tribunal practices and policies that she finds to be “contrary to the Rule of Law”.
16The respondent opposes the motion.
17The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC) (“Committee for Justice and Liberty”), at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
18In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at paragraph 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. To overcome this presumption, a party alleging actual bias or a reasonable apprehension of bias must establish the presence of serious grounds.
19I find the applicant has not established a reasonable apprehension of bias, nor has she shown that my independence was curtailed in this proceeding due to institutional considerations.
20To start, many of the allegations of bias made in the applicant’s motion involve my purported membership in a Tribunal “task force” set up to address files from “high conflict” firms. According to the applicant, her representative’s firm was identified as a “high conflict” firm, so I was “required to divulge” this information when bias claims were made against me in a related file.
21The basis for claiming I am a member of a “high conflict” task force within the Tribunal appears to come from e-mail correspondence (dated September 5, 2023) between a former Tribunal member and the applicant’s representative. Answering a question from the representative about my potential involvement in this task force, the former member stated: “He is on the motions team, so later on I would assume he would hear task force cases.” Relying on this assumption, the applicant has raised concerns about my ability to fairly decide this case. I do not find the applicant has provided serious grounds to rebut the strong presumption of impartiality that adjudicators are entitled to.
22Turning to the other decisions listed in the applicant’s motion submissions, these orders have little relevance to the present dispute. Aside from the fact that rulings from other adjudicators have no bearing on my own impartiality, I do not find these orders show how the Tribunal’s processes amount to institutional bias. For instance, the applicant notes that she has two other applications that were both denied by a former adjudicator who was “a member of the motions team”. Adverse decisions alone are not sufficient to demonstrate institutional bias: see Antler v. Carter, 2024 ONSC 6407 at paragraph 43; Clancy v. Aviva, 2018 ONSC 5390 at paragraph 43 (“Clancy”). I am not satisfied that the applicant has explained why membership on a “motions team” suggests bias.
23The applicant also takes issue with the reference in my decision to Vice-Chair Flude’s order from the present file (released October 6, 2022). I am unclear how this reference supports the applicant’s motion. The order was discussed as part of the respondent’s argument that the application should not proceed to a hearing, pursuant to s. 55(1) of the Schedule. This argument was not successful.
24In a similar vein, I find the applicant has not shown why my decisions on a related file establish a reasonable apprehension of bias in this present dispute. In this other matter, I declined the applicant’s request to recuse myself. The applicant has not explained why this past ruling on bias helps to establish a reasonable apprehension of bias in the present. Following the guidance from the Supreme Court, each bias allegation must be assessed based on the specific facts at hand, and I find there is little connection that the applicant has been able to draw between these claims.
25Regarding the claims of institutional bias, I find the applicant has not established how this ground is made out based on her complaints about the Tribunal’s processes and policies. These complaints involve: the Tribunal’s decision review policy; the reappointment process; use of legal counsel in decision reviews, etc. While the applicant has provided detailed submissions to explain these general complaints about the Tribunal, she has not shown how these policies and processes impacted the specific decision at hand.
26Finally, following on the reasoning above, I find the allegation that I am acting “willingly and intentionally” contrary to my oaths as an Order-in-Council appointee is highly inflammatory and not supported by the motion record. These kinds of allegations strike at the heart of an adjudicator’s integrity and honesty, reputational attributes that are essential to my ability to fulfill my obligations to the public. These allegations are handled seriously by the Tribunal, and there is an expectation that parties raising these concerns will do so with comprehensive submissions and evidence. The applicant has not done so in this case.
27Further, as the Divisional Court in Clancy stated at paragraph 43: “… the fact that a litigant is unhappy with a result is not a basis to find that the decision-maker had forsaken his or her oath or pre-determined the matter.”
28The applicant’s recusal motion is denied.
REQUEST FOR RECONSIDERATION
29The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
30In summary, I have determined that I committed a material breach of procedural fairness by reframing the ACB issue, namely, by not deciding the question of the “reasonable and necessary” quantum. Since this successful ground is linked to several other arguments made by the applicant in her request (and she has also made arguments about my findings about the incurred amounts), I will address both the successful argument, as well as my reasons for why her other grounds do not merit reconsideration. I will then discuss the remedy under Rule 18.4.
Rule 18.2(a) – Material Breach of Procedural Fairness
31I find the applicant has established a material breach of procedural fairness, pursuant to Rule 18.2(a).
32The applicant alleges material breaches of her right to be heard and of her right to an impartial and independent decision-maker. The applicant also submits that she was “not provided notice of internal processes” that affected the procedure for deciding her case.
Reframing the ACB Issue
33The applicant starts this section of her reconsideration submissions by claiming that: “The issues as framed by Adjudicator Mazerolle were not as set out in the hearing before Adjudicator Prowse and did not allow for the participation of the applicant. Similarly interlocutory motions were not framed or heard on the basis of the filed notice of motions.”
34For context, I addressed the question of whether ACB quantum was a proper consideration before me at paragraph 12 of the decision:
I do note that, during the videoconference hearing, the applicant asked the Tribunal to answer two questions about her ACB claim: i.e., the “Form 1 reasonable and necessary amount”, as well as the amount that was incurred. Though the ACB issue was broadly described in prior Tribunal orders as a question of “quantum”, I do not find it necessary to make a general finding about what Form 1 amount would be considered reasonable and necessary. Rather, by concluding that the applicant did not meet her onus to demonstrate that the services at issue were incurred (and there is no basis to deem them incurred), I find there is no need to conduct a determination of what amount might be payable if later incurred.
35Though the applicant does not specify what “interlocutory motions” were addressed in a procedurally unfair manner, I find the applicant has demonstrated that the “issues” adjudicated in the decision were not the same as those framed by the adjudicator during the hearing.
36As noted in the decision, this matter was ordered to “proceed by having a new adjudicator review the existing record”. This record included the hearing transcript, which, in turn, encompasses rulings made by the adjudicator at first instance. The adjudicator did not challenge the applicant’s request for both aspects of the ACB claim to be decided, namely, the amount incurred and the reasonable and necessary amount moving forward.
37By disregarding this part of the adjudicator’s determination at first instance, I find I breached the applicant’s right to procedural fairness in a material way. Specifically, the applicant did not have the ability to reframe her arguments in a manner that would allow for this new understanding of the issues. Taken together, I find the ruling I made at paragraph 12 of the decision did not allow for the applicant’s full participation in the hearing, as she believed a different issue would be addressed.
38I do note that there may be situations where an adjudicator reviewing the existing record may be required to issue procedural orders that are at odds with those made during the initial proceeding. However, if these orders stand significantly at odds with the parties’ understanding of the dispute, it will likely be necessary for the adjudicator to request additional submissions from the parties before such an order is made. This request was not made in this case, despite the significant nature of this change.
39In response to the applicant’s position, the respondent simply states that it “denies that Adjudicator Mazerolle reframed the issues to be determined.” It further noted that, by finding that the attendant care services were not incurred, “the Tribunal did not need to conduct a determination of the quantum of the attendant care”. There is no legal authority provided to support this position, and I find the respondent’s submissions do not challenge my findings above.
40Overall, the applicant has established grounds for reconsideration, pursuant to Rule 18.2(a), based on her argument that I reframed the issues without notice.
Right to Impartial and Independent Decision-Makers
41Relying on the findings above from the motion, I find the applicant has not established a reasonable apprehension of bias, nor has she shown that I lacked independence in my decision-making.
42The applicant’s arguments mainly comprise of allegations made about the Tribunal’s processes, including my purported participation in a “task force” meant to address “high conflict” files. No evidence was provided by the applicant to meet the threshold required to establish a reasonable apprehension of bias. Most notably, there are no specific examples from the decision to show where I displayed bias. Rather, there are general comments about the Tribunal’s processes, all presented without an explanation to show how they impacted this proceeding. Considering the presumption of impartiality and independence, I find these unsupported submissions do not meet this elevated threshold.
43Vice-Chair Flude’s participation in this case was also called into question, but as noted above, this part of the decision involved a finding that favoured the applicant.
Notice of Processes Affecting the Decision-Making
44Finally, the applicant contends the Tribunal withheld information about the “internal processes” that affected “how, when or who would make decisions”. Specifically, since she was not aware of my assignment to her file until after the decision was issued, the applicant claims she was prevented from raising claims of bias, impartiality, etc. at an earlier date. Additionally, the applicant contends that neither the Tribunal, nor the respondent, alerted her that she was “required to provide information about her hourly care” when adjudicating her ACB claim—a requirement that, according to the applicant, does not stem from the Schedule.
45I find neither of these claims engage Rule 18.2(a). First, the applicant has not provided any submissions to support her contention that procedural fairness required her to know that I was assigned to the case before the decision was released. Aside from the fact that parties regularly find out the identity of the hearing adjudicator when the decision is rendered (especially with hearings conducted by written submissions), the applicant has not demonstrated how raising her bias allegations at an earlier stage would have impacted her right to procedural fairness. The standard for establishing bias remains the same, regardless of when the allegations are raised.
46Then, regarding the claim that she had no notice of the need to provide information about “her hourly care”, I find this argument is not supported by the hearing record. As noted at paragraph 22 of the decision, the respondent argued that “the applicant did not provide enough details about her daughter’s attendant care services”. This submission was central to the respondent’s theory of the case, so I am not satisfied that the applicant was unaware of the need to address this argument during the hearing.
Rule 18.2(a) – Acted Outside the Tribunal’s Jurisdiction
47The applicant also alleges I acted outside of my jurisdiction in rendering the decision. I find the applicant has not established that I acted outside of my jurisdiction.
48Under this heading, the applicant claims that I acted outside my jurisdiction by “failing to decide the issues before it, including the ACB quantum, and the specific issue raised by the applicant related to the Human Rights Code.”
49First, though I accept that there was a material breach of procedural fairness in this regard, the applicant has not explained how my determination about the scope of the ACB issue amounts to an act outside of my jurisdiction. The party seeking reconsideration has the onus to establish that a criteria under Rule 18.2 has been met, and I find the applicant has not established that I acted outside of my jurisdiction by answering the question of quantum in this manner.
50Similarly, the applicant did not provide a persuasive explanation for why I acted outside of my jurisdiction through my analysis of her arguments about the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). At paragraphs 42 and 43 of the decision, I addressed the applicant’s submissions about the Code as follows:
I also find the applicant’s position concerning the Code is not compelling. The protected ground of “family status” is defined at s. 10(1) of the Code as the “status of being in a parent and child relationship”. This definition does not extend to marital relationships. Relatedly, the applicant’s arguments about the protected ground of disability were linked to family status, so, by finding that the definition of family status does not apply to the husband’s claim, I have not been provided with a compelling explanation for how the ground of disability can establish a standalone claim of unequal treatment.
I do note that marital status is a protected ground under the Code, but the applicant did not provide submissions on this ground.
51These arguments were considered and dismissed. I see no breach of my jurisdiction in this part of the decision.
Rule 18.2(b) – Errors of Fact or Law
52I find the applicant has not established any ground for reconsideration based on Rule 18.2(b).
53In the final section of her submissions, the applicant briefly cites four alleged errors of law:
It was an error of law to fail to determine the quantum of the attendant care to which the applicant was entitled…
It was an error of law in determining what was incurred or deemed incurred, to fail to consider conditions precedent, such as the insurer’s failure to assist the applicant in claiming the benefit, such as providing an explanation on how to claim expenses, including the need for an hourly breakdown.
It was a further error of law in determining what was incurred or deemed incurred without regard to s. 131 of the Insurance Act.
It was an error of law to term the standard applied to the insurer’s conduct as not one of perfection, rather than applying the SABs regulation to the insurer’s conduct.
54The applicant has not shown how any of these allegations constitute an error. In addition to the brief nature of the submissions, the applicant did not make any pinpoint references to sections of the decision, nor did she elaborate on these alleged errors with case law or evidence.
55I do note that, in reply, the applicant cites Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 to support the position that the Tribunal has an obligation to decide accident benefits cases in accordance with the Schedule. However, I find this citation does not show why the decision was incorrect.
Rule 18.4 – Quantum of the ACB
56In light of the established ground for reconsideration, it is necessary to determine the remaining issue in dispute, i.e., the reasonable and necessary monthly amount of the ACB. Since none of the other grounds are successful, my ruling on the incurred amount remains, including the findings about s. 3(8) of the Schedule. I see no issue with this quantum determination being conducted by myself, and I will rely on the existing record to make this determination.
57For the following reasons, I find the applicant has established that the reasonable and necessary quantum of the ACB is $1,962.55 per month from March 21, 2022 to date and ongoing.
58Section 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 an ACB 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”).
59The applicant has the onus to demonstrate entitlement on a balance of probabilities.
60The most recent Form 1 that the applicant has provided to the Tribunal was completed by Aiden Huynh, OT (dated March 21, 2022). Requesting a total of $8,735.57 per month, the assessor found the applicant requires: 1133 minutes per week of Part 1 services; 8170 minutes per week for Part 2 services; and 777 minutes per week for Part 3 services.
61The respondent obtained an attendant care assessment from Susan Szainwald, OT, who too found the applicant requires attendant care, but at a lower amount, i.e., $1,180.31 per month. In a Form 1 prepared on November 14, 2022, Ms. Szainwald found the applicant requires: 475 minutes of Part 1 services per week; 465 minutes of Part 2 services per week; and 263 minutes of Part 3 services per week.
62Therefore, while both sides accept there are reasonable and necessary services that the applicant needs to address her accident-related impairments, Mr. Huynh recommended more extensive services in both amount and scope.
Part 1 Services
63Mr. Huynh found the applicant requires the following services for Part 1 of the Form 1: daily assistance with dressing and undressing for a total of 10 minutes per day; daily and weekly assistance with the services under the “Grooming” header (for a total of 153 minutes per week); one hour per day to assist with meal preparation; and one hour per day for mobility assistance.
64There appears to be a typo in this section, as Mr. Huynh requests 3 minutes per day for styling, setting, and combing hair, but then lists the total amount for this service as 420 minutes per week. Considering the other amounts listed in this section, I find this reference to 420 minutes per week is meant to be 21 minutes per week.
65For this section, Ms. Szainwald concluded the applicant requires: 45 minutes per week to help with shampooing and drying her hair; 10 minutes per week to help clean and trim her toenails; and one hour per day for meal preparation.
66For both dressing and grooming, Mr. Huynh supports his recommendations by claiming that the applicant’s physical limits and psychological condition mean she struggles with these daily activities. Support for this position comes from his observations of her physical limitations (such as how she “could not hold her arms overhead for more than 16 seconds”), along with the applicant’s scores on his psychometric testing, e.g., she recorded severe levels of depression and anxiety.
67Starting with dressing, I find the applicant has demonstrated that this recommendation is reasonable and necessary to address her physical impairments. There is consensus between the assessors that the applicant requires some level of daily attendant care (e.g., they both allot time for hair care, meal preparation, etc.), and there is some overlap between their opinions regarding the applicant’s physical capabilities, namely, in her upper body. For instance, Ms. Szainwald’s testing showed: “Upper extremity strength is fair, possibly due to deconditioning.” She also concluded that the applicant “appeared deconditioned with regard to strength at or above shoulder level.” With these overlapping findings of physical impairment, I find Mr. Huynh’s recommendation for assistance with dressing and undressing is necessary to address the applicant’s impairments. I further find the relatively minor allowance of 10 minutes per day is reasonable for these tasks.
68Relying again on her upper extremity limitations, I find the applicant has also demonstrated the reasonable and necessary nature of most of the proposed grooming assistance from Mr. Huynh. However, I do not find she has established the necessary nature of the proposed cosmetics assistance.
69Mr. Huynh recommended daily assistance with most of the services under the “Grooming” header, e.g., washing her face; shampooing her hair; applying makeup, etc. He also recommends once weekly assistance for nail care. To support these recommendations, Mr. Huynh highlights the applicant’s self-reports of pain and fatigue, as well as his aforementioned observation about her inability to hold her hands over her head for an extended period.
70As noted above, there is corroborating support for this upper extremity weakness in the report from Ms. Szainwald. I also note that this assessor further found “neck musculature deconditioning”, and the applicant reported to her that she had difficulty holding up her neck. It is reasonable to assume that neck strength would contribute to one’s ability to wash their face and care for their hair.
71Overall, the applicant has established that most of the grooming assistance recommended by Mr. Huynh is necessary to address her impairments, and the amount of time recommended for these services is reasonable.
72Despite these findings, I do not find cosmetics assistance is necessary. As noted during Ms. Szainwald’s assessment, the applicant “was not wearing any makeup and reported she never did even before the accident.” Mr. Huynh did not specifically address cosmetics when explaining his justification for grooming assistance, and the applicant did not speak to this aspect of grooming during her testimony. As such, considering she did not perform this task prior to the accident, I find the applicant has not established why this service is necessary.
73I do note that, despite checking off all the services on the “Grooming” section of the Form 1, Mr. Huynh’s report only mentions specific allotments of time for nail care, face washing, hands washing, and shaving—an omission that was highlighted during cross-examination. However, considering Mr. Huynh’s discussion of other grooming services, like hair care, in this section of his report, I accept the assessor’s explanation that the lack of specific time allotments in the “Grooming” section of his report was an omission.
74Both assessors found the applicant requires one hour per day for meal preparation. I see no reason to disrupt this common recommendation.
75For mobility assistance, Mr. Huynh found the applicant “ambulated within her household during the assessment”, with rest taken as needed. However, he expressed safety concerns over her ability to walk over “prolonged periods”, noting she suffers from pain and “unpredictable steadiness”. He also highlighted her psycho-emotional issues as another potential barrier to safe mobility. As such, this assessor found the applicant needs one hour per day to assist with at-home transfers and supervision (both in the home and out in the community).
76During the hearing, Mr. Huynh further testified that the applicant had “difficulty with just standing in an upright body position”, as she would need to sit down after about two minutes. She also needed to “lean on external structures for support.”
77I find this recommendation for mobility assistance is reasonable and necessary, as the applicant has demonstrated a level of unsteadiness that would require some level of assistance and supervision. Though Mr. Huynh noted that she “ambulated within her household during the assessment, where she can rest when needed”, I find the applicant’s history of stumbles (a topic I will address at more length below) shows that, even with these supports, the applicant has a demonstrated level of unsteadiness. This concern will become even more pressing when the applicant is in the community, as I can infer that the applicant’s ability to rest may not be as readily available in a less-structured setting.
78Turning to Ms. Szainwald’s suggestion that no amount of mobility assistance is required, I do not agree. When discussing this service, the assessor noted that the applicant “is able to walk without supervision”, and that she is “independent in transfers”. While I accept these observations, they do not account for other findings from her report. Specifically, Ms. Szainwald reported, under the “Clinical Examination” section, that the applicant required the railing to steady herself on the stairs, a finding that mirrors the observations from Mr. Huynh. Then, in her discussion about “Physical Abilities”, the assessor wrote: “[The applicant] reported she is able to walk with her walker for 15 minutes and then is required to rest.” Once again, this self-reported limitation overlaps with the findings made by Mr. Huynh, albeit 15 minutes is longer than the reported endurance in his report.
79In addition to my discussion about the applicant’s history of stumbles below, the corroboration between these two opinions supports my finding that mobility assistance is necessary. I also find that 60 minutes per day is a reasonable amount to cover mobility both within the home and the broader community.
Part 2 Services
80For Part 2 of the Form 1, Mr. Huynh found the applicant requires: daily assistance with all the services under the “Hygiene” header, totalling 210 minutes per week; “Basic Supervisory Care” for 1129 minutes per day; and 57 minutes per week to help with coordinating and scheduling her attendant care services. Under the “Basic Supervisory Care” header, the assessor indicated that these services are needed as the “applicant lacks the ability to respond to an emergency or needs custodial care due to changes in behaviour”.
81I do note that Mr. Huynh refers to the supervisory care as “24-hour daily support” in his March 2022 report. This term was also used by witnesses during the hearing. However, this amount is higher than the level of service requested on the Form 1.
82In this section of the Form 1, Ms. Szainwald found the applicant needs one hour per day to ensure “comfort, safety and security” in the bedroom. Then, on a weekly basis, she allotted: 15 minutes for cleaning the bathroom after use; 15 minutes for cleaning the bedroom and bedding; and 15 minutes to help with coordinating and scheduling the applicant’s attendant care services. No amount of service was recommended for supervisory care.
83Starting with hygiene, both assessors recommended some level of assistance, though Mr. Huynh allotted significantly more time, as well as a broader scope of services, on his Form 1. According to this assessor, the applicant’s physical, cognitive, and psychological challenges “impede her ability to maintain her home’s cleanliness, organization, and environmental safety”. As such, he allotted time to assist with keeping the bedroom and bathroom tidy and organized—services that he hoped will remove fall risks and improve comfort.
84I accept that the applicant has shown the reasonable and necessary nature of this recommendation, as it aligns with my findings above regarding the need for mobility assistance. Specifically, by concluding that the applicant has a demonstrated level of instability, it is, as a result, necessary that her home should be clean and organized, especially in rooms as important as the bedroom and bathroom. Then, in light of the applicant’s upper body impairments, I find Mr. Huynh’s assessment of her inability to independently perform the acts of cleaning up and organizing these rooms is supported. I also accept the opinion that the applicant’s psychological symptoms, such as her high levels of anxiety, may impede her ability to regularly engage in this kind of cleaning.
85I also note that the amount of assistance being sought by Mr. Huynh is relatively limited, as he is suggesting a total of 30 minutes per day to clean the bathroom, organize the bedroom, and care for the applicant’s clothing. 30 minutes per day appears reasonable when considering the scope of these tasks.
86For Ms. Szainwald, she too suggested some level of hygiene assistance, but I find her recommendations are too narrow in scope. For instance, she did not provide any allowance under “Clothing Care” (e.g., preparing daily apparel, sorting clothing for the laundry, etc.). Considering my findings regarding the need for a clean and organized home (as well as her limited upper body strength), this assistance is necessary to address the applicant’s impairments.
87Turning to “Basic Supervisory Care”, this category represents the largest discrepancy between the parties. While the applicant’s assessor is asking for a significant number of hours per day for this service, the respondent’s assessor found no level of supervisory care is needed. I agree with the latter position.
88To support his recommendation for almost 19 hours per day of supervisory care, Mr. Huynh opined that the applicant’s “many impairments” altered “her ability to initiate and engage in emergency egress”. Specifically, the applicant’s pain levels, cognitive and memory difficulties, low motivation, and limited walking tolerance led him to conclude that “24-hour daily support is recommended to aid the client by providing her with essential exit support in emergencies.”
89In his testimony, Mr. Huynh opined that he had “safety concerns” about the possibility of the applicant falling and not being able to get up. For instance, he found she had difficulty in raising herself from the floor, needing help from her husband.
90In closing submissions, the respondent disputed the need for this service, relying, in part, on its surveillance evidence. Specifically, the respondent questioned the need for this level of supervision based on the assessor’s rationale that she may fall to the ground:
Mr. Huynh spoke about the need for basic supervisory care due to a risk of falling. I’d ask you to consider that beyond seven years post-accident there hasn’t been a documented fall… In my submission it is not reasonable when you consider there’s no reported history of a fall to any service provider since the motor-vehicle accident.
91I agree. There is an insufficient evidentiary basis presented by the applicant to demonstrate that she requires supervision to address the potential of falling within the home. Rather, I find the other services being endorsed in this decision will address the unsteadiness and need for cueing and prompting that Mr. Huynh appears to be seeking to address through this recommendation.
92First, according to the falls inventory performed for his assessment, Mr. Huynh noted that the applicant “explained that she had not fallen since the index accident”, though she was “highly cautious” and has stumbled many times.
93In her testimony, the applicant presented a different account, stating that she has fallen “flat on the ground”, though she also noted that she is mostly “on my knees or on my wrists” when she falls. When asked about the discrepancy between her testimony and the falls inventory, the applicant stated that she might have misunderstood Mr. Huynh’s question, or that she “must have forgotten to tell him.” Considering Mr. Huynh appears to have directed the applicant to provide him specific information about her falls (as these questions apparently elicited information about stumbling), I find it is difficult to reconcile these conflicting accounts. Rather, as the testimony from her daughter and husband suggests, the applicant appears to be speaking about unsteadiness, as opposed to complete falls to the ground.
94Both the applicant’s daughter and husband stated that they have witnessed the applicant take several “falls”, but these incidents appear to be better understood as unsteadiness. For instance, when describing his wife’s falls, the applicant’s husband stated: “But when she falls and her leg gives out, you know, you classify that as a fall as well.” He also referred to falls where “she goes on the one knee.” These descriptions appear to be in line with the applicant’s own account to Mr. Huynh, namely, she has stumbled due to her reported unsteadiness.
95I do not discount the serious and persistent nature of this unsteadiness, especially as it has been witnessed by her family on a number of occasions. However, I find, on a balance of probabilities, that the applicant has not shown how the level of supervision recommended by Mr. Huynh is necessary to address this impairment. Rather, with the mobility and hygiene assistance endorsed in this decision, I conclude this aspect of the applicant’s accident-related impairments will be addressed without the need for supervisory care.
96In reply, the applicant added that an OT can assess one’s fall potential. The applicant also highlighted that Ms. Szainwald “walked behind her” on the stairs, a sign of this assessor’s concerns about her fall risk. I accept that an OT can assess functional limitations, and I recognize that Ms. Szainwald observed the applicant’s issues with managing stairs. However, on a balance of probabilities, these points do not override my conclusion that there is an insufficient basis for establishing a fall risk that would necessitate this kind of supervisory care.
97In a similar vein, I find Mr. Huynh’s justification for this service based on the applicant’s cognitive issues and motivation levels are not made out on the record. I accept that the assessors both found the applicant exhibited high levels of psychological distress. However, though these emotional concerns may impact her memory (as discussed below), and while Mr. Huynh’s assessment may have shown some executive functioning deficits, I do not find there is a persuasive account of why the applicant would lack the capacity to identify and react to an immediate emergency.
98Specifically, assessors noted during contemporaneous assessments that the applicant was alert and attentive. For instance, Dr. R. Van Reekum, psychiatrist, found the applicant was “Alert, attentive” during the examination (report dated January 28, 2023); while Dr. David Kurzman observed that the applicant was an “active participant” during the clinical interview (dated March 27, 2022). Mr. Huynh himself found that, while the applicant exhibited “increasing cognitive fatigue” as the day progressed, she too was oriented and able to participate in the assessment. I also note that the applicant’s reported anxiety appears to mean she is highly attuned to possible, negative outcomes.
99I recognize that Mr. Huynh reasoned in both his report and testimony that daily supervision will help with “emotional support, motivation, cueing, and prompting to initiate and follow through” with activities of daily living. There are other services endorsed in this decision that will help the applicant engage and safely participate in her home life and community. For instance, while there were concerns noted about the applicant’s use of the stove, the allotted time for meal preparation will ensure she is monitored during her use of kitchen appliances. Similarly, the applicant will also be supervised when receiving mobility assistance.
100Additionally, the respondent highlighted a publication from the Ontario Society of Occupational Therapists entitled: Assessment of Attendant Care Needs, Form 1: A Resource for Reflective Practice. Mr. Huynh was asked about this publication on cross-examination, and he agreed that there is no reference to cueing or prompting under the purview of “Basic Supervisory Care”. The analysis of the reasonable and necessary nature of this recommendation must focus on the proper categorization of this service on the Form 1, i.e., responding to emergencies.
101Finally, the applicant relies on the report of Dr. Van Reekum to support the recommendation for 24-hour care, but I do not find this part of his opinion is persuasive. Though he provided a brief aside about how he felt the applicant was “at ongoing safety risk”, his comment about the need for 24-hour care was a reference to the recommendation from Mr. Huynh: “Based on the most recent thorough functional assessment (by A Huynh), [the applicant] currently requires 24-hour attendant care, along with housekeeping/home maintenance support.” The assessor does not provide his own analysis about the service to support this position.
102A similar reliance on Mr. Huynh’s expertise was expressed at the hearing, with Dr. Van Reekum stating several times that this earlier report played a large role in his acceptance of 24-hour supervisory care. For instance, when asked by applicant’s counsel to explain the basis of this conclusion, Dr. Van Reekum stated that, while he looked to his own assessment and evidence from other practitioners, this part of his opinion was “based largely on the March 31st, ’22 [report] prepared by Huynh”.
103In all, even though the applicant argued that a significant amount of weight should be placed on Dr. Van Reekum’s recommendation (due to his extensive experience, as well as the lack of a responding report from the respondent), I find I am still left with questions about why her impairments necessitate this care. Put another way, even if Dr. Van Reekum agrees with Mr. Huynh, he provides little additional detail to help explain why this recommendation is reasonable and necessary.
104Taken together, I do not find, on a balance of probabilities, that the applicant has established that Mr. Huynh’s recommendation for supervisory care is reasonable and necessary. Rather, when the other services I have endorsed in this decision are considered together, I find the applicant has not shown that this kind of supervisory care is necessary to address her impairments.
105Finally, in Part 2, Mr. Huynh recommended almost an hour per week to assist with coordination of attendant care services. He based this recommendation mainly on the applicant’s memory issues. For example, the assessor noted in his report that the applicant’s husband had to help set up the assessment appointment, and the applicant could not remember the names of some of her healthcare providers. During the hearing, Mr. Huynh added that her husband helped with “coordination, communication, scheduling tasks”.
106Ms. Szainwald also provided a weekly allotment for this coordination assistance, though she limited her recommendation to 15 minutes per week.
107While I accept that both assessors found some level of coordination assistance is needed, I do not find that Mr. Huynh has provided a persuasive account for why almost an hour is needed, especially as Ms. Szainwald concluded it could be done in 15 minutes. Specifically, while I accept that more services are being requested by Mr. Huynh, he justifies this recommendation on the applicant’s memory issues. Put another way, he has provided reasons for why coordination, in general, is necessary, but he has not explained why the amount of time being requested is reasonable. As such, I find the applicant has not demonstrated that an hour of coordination assistance is reasonable, and I will instead endorse Ms. Szainwald’s recommendation for 15 minutes per week.
Part 3 Services
108For Part 3 of the Form 1, Mr. Huynh concluded the applicant requires: 30 minutes per day for exercise, along with 15 minutes per day for “walking activities using crutches, canes, braces and/or walker”; daily assistance with oral medications, for a total of 126 minutes per week; and 30 minutes of daily bathing and drying assistance. Mr. Huynh’s Form 1 had also recommended 126 minutes per week to assist with injections under the “Medication” header, but this recommendation was removed by the assessor during his in-chief examination as a possible “typo”.
109Ms. Szainwald concluded that the applicant requires: 30 minutes per day for exercise; 10 minutes per week to help maintain and control the applicant’s medication supply; a total of 15 minutes per week applying creams, lotions, pastes, ointments, and powders; and 4 minutes per day ensuring “wheelchairs, prosthetic devices, Hoyer lifts, shower commodes and other specialized medical equipment and assistive devices are safe and secure”. This last service was not recommended by Mr. Huynh.
110For the recommended total amount of 45 minutes per day for exercise and walking activities, Mr. Huynh noted that the applicant was irregular with her physiotherapy exercises at home. The applicant reported that her fatigue, pain, and dizziness were contributing factors to this irregularity. As such, the assessor opined that “she would benefit from supervision, form-monitoring, and cueing while exercising”. A similar rationale was provided during the hearing.
111Once again, Ms. Szainwald and Mr. Huynh both recommended 30 minutes per day for exercise assistance, but only the latter added a further 15 minutes per day for assistance with “walking activities using crutches, canes, braces and/or walker”. In describing the justification for these services in his report, he refers to both exercise and walking activities under “Exercise”. I accept that the applicant uses a “walker or a cane while walking outside”. I also recognize that there are references to their use in the records before me, e.g., the neuropsychological assessment from Dr. Kurzman. However, Mr. Huynh does not provide a justification for this additional service. As such, I find the applicant has not provided a persuasive explanation for why walking assistance is needed, especially as there is no reference to a cane or walker in the part of Mr. Huynh’s report where he discusses his recommendations under the header of “Exercise”.
112Turning to medication assistance, Mr. Huynh supported his recommendation of 126 minutes per week by claiming that the applicant’s memory “negatively affects her ability to obtain, organize, and take her medication regularly.” I find the applicant has established the reasonable and necessary nature of this recommendation. As listed in both assessors’ reports, I accept that the applicant takes several medications. I further accept Mr. Huynh’s position that the applicant has memory issues—issues that reportedly impact her ability to consistently obtain and take her medications. Therefore, considering the likely impact that memory deficits would have on one’s ability to consistently manage their medications, I find assistance with administering, tracking, and maintaining her oral medications is a necessary service. I further find that 18 minutes per day is a reasonable amount of time to complete these tasks.
113While both assessors allotted time to assist with medications, Ms. Szainwald found the applicant did not exhibit any issues with her memory. She also noted that there was an automatic renewal process in place for refilling the applicant’s prescriptions. Therefore, since the applicant reported no longer driving, she allotted 10 minutes per week to help with medication retrieval.
114I do not place much weight on this part of Ms. Szainwald’s opinion, as there were several indications in both her clinical interview and document review that pointed to memory issues. In addition to the applicant self-reporting that she has memory issues (e.g., she works with an OT to do memory exercises), the assessor reviewed the aforementioned report from Dr. Kurzman who found: “Working memory performances variable and ranged from Borderline to well within Average.” I also note that Ms. Szainwald found the applicant experienced high levels of anxiety, and—according to Mr. Huynh, whose own testing found “severe anxiety symptoms”—emotional issues can impact cognitive and executive functioning.
115I note that the respondent challenged Mr. Huynh on cross-examination about how he assessed the applicant’s memory, namely, counsel questioned whether he reviewed opinions from neuropsychological experts, like Dr. Kurzman. While I accept that some of the findings in this report showed average results, I still find counsel’s questions do not present a serious challenge to Mr. Huynh’s opinion, as Dr. Kurzman found a variability in the applicant’s scores on working memory. As such, even if the assessor had reviewed this report, I am not satisfied that it would have had a significant impact on his opinion. Further, Mr. Huynh explained during the hearing that his opinions about the applicant’s condition and impairments were not based solely on his document review, but he also observed how the applicant functioned in her own home, as well as her interactions with her husband. He also conducted psycho-emotional questionnaires and cognitive tests.
116Taken together, I find there is persuasive evidence of the applicant’s memory issues. I am further satisfied that they would have an impact on the daily intake, tracking, and management of her oral medications.
117Finally, both assessors recommended some level of assistance with bathing. On the one hand, Mr. Huynh recommended 30 minutes a day to help with bathing and drying off. To support this recommendation, he cited the applicant’s potential for falls; the assistance from her family when showering; and the applicant’s self-reporting about how careful she is during bathtub transfers. During his testimony, he added that “difficulties with overhead hand-holding” provided further support for this recommendation.
118Ms. Szainwald found the only bathing assistance the applicant needed was help applying creams on her back. This assistance would take several minutes per day.
119Similar to my findings for dressing and grooming, I find Mr. Huynh’s recommendation is reasonable and necessary for addressing the applicant’s impairments. As both assessors observed, the applicant has strength issues with her upper extremities. These strength issues would reasonably impact her ability to engage in daily bathing, as the need to reach up to wash and dry her upper body would be negatively impacted. It also appears that these services were required in and around the time that the assessors were preparing their reports, as the applicant testified during the hearing that she needed her family’s assistance to shower during a trip in 2023.
120Additionally, I find the allowance of 30 minutes per day for bathing is reasonable, especially as Mr. Huynh testified that allowing the applicant to, say, only shower once per week would “lead to a worsening sense of self and de-conditioning”.
121I further find the recommendation from Ms. Szainwald is internally inconsistent. If the applicant is unable to apply cream on her back, it is reasonable to then infer that she would not have the capacity to wash or dry her back as well. This kind of assistance is missing from her recommendation.
122Finally, as the respondent has accepted that the applicant is entitled to 4 minutes per day for ensuring “wheelchairs, prosthetic devices, Hoyer lifts, shower commodes and other specialized medical equipment and assistive devices are safe and secure”, I will permit this service as well.
Applicant’s Other Arguments
123There are several, general arguments that the applicant makes about her entitlement to the ACB, namely, her position that the respondent’s evidence is unreliable. For instance, the applicant claims Ms. Szainwald did not account for her pain and incontinence, and she argues that the cross-examination of this assessor revealed an error in her report. Further, the applicant claims her condition must be understood as a shift from physical pain (including a hernia) to psychological pain, e.g., her diagnosis of a chronic pain disorder.
124When discussing incurred services in the original decision, I found the applicant’s allegations about the insufficiency of the respondent’s evidence did not assist her in meeting her evidentiary onus. Similarly, the applicant has the onus to demonstrate that the attendant care services being proposed in her Form 1 are reasonable and necessary. Unless she can present evidence and arguments that show this request is reasonable and necessary, a deficiency in the respondent’s case will not assist her in meeting this onus.
125Further, I note that Ms. Szainwald understood that there was a change in the applicant’s condition from one marked by physical pain to one defined by psychological concerns. Therefore, even though she focused on the applicant’s anxiety (as opposed to, say, a chronic pain disorder), I am satisfied that Ms. Szainwald was cognizant of the applicant’s emotions when rendering her opinion.
126I also note that, as my review of the assessors’ reports shows, there is a considerable amount of overlap between their opinions about the applicant’s condition. These shared opinions may have led to differing recommendations about the need for attendant care services, but both sides recognized that the applicant suffered from psychological and physical impairments.
Totaling the Reasonable and Necessary Services
127In sum, the applicant has established that the reasonable and necessary quantum of the ACB is $1,962.55 per month.
128This total comes from the following amounts:
a. Part 1: 70 minutes per week for dressing and undressing; 132 minutes per week for grooming; 420 minutes per week for meal preparation; and 420 minutes per week for mobility = $985.03 per month
b. Part 2: 210 minutes per week for hygiene and 15 minutes per week for attendant care coordination = $181.46 per month
c. Part 3: 210 minutes per week for exercise; 126 minutes per week for medication; 210 minutes per week for bathing; and 28 minutes per week for ensuring “wheelchairs, prosthetic devices, Hoyer lifts, shower commodes and other specialized medical equipment and assistive devices are safe and secure” = $796.06 per month
129In reaching this conclusion, I have placed significant weight on the findings from Mr. Huynh. Therefore, regarding the duration of the ACB, I find the applicant has provided sufficient evidence to show that this level of care is reasonable and necessary from the date of his Form 1, i.e., March 21, 2022.
130Further, considering these findings were made by the parties’ assessors several years after the subject accident in 2015, I find, on a balance of probabilities, that it is likely the applicant will continue to suffer from these accident-related impairments for some time. As such, I am satisfied that the applicant has established the reasonable and necessary nature of this monthly amount on an ongoing basis.
131Once again, the issue being addressed under Rule 18.4 is the applicant’s request from the hearing for a determination about the “Form 1 reasonable and necessary amount”. Since the incurred amount was addressed in the initial decision (and this finding was not successfully challenged on reconsideration), I do not find it necessary to make any rulings regarding interest and an award.
CONCLUSION & ORDER
132The applicant’s request for reconsideration is granted, in part.
133The applicant’s recusal motion is dismissed.
134Pursuant to Rule 18.4, I have reheard the existing hearing record to render a decision about the quantum of the ACB.
135The applicant has established that the reasonable and necessary quantum of the ACB is $1,962.55 per month from March 21, 2022 to date and ongoing.
Craig Mazerolle Vice-Chair
Released: November 12, 2025