Carter v. Economical Mutual Insurance Company, 2025 CanLII 122650

Carter v. Economical Mutual Insurance Company, 2025 ONLAT 24-000796/AABS

Citation: Carter v. Economical Mutual Insurance Company, 2025 ONLAT 24-000796/AABS

Licence Appeal Tribunal File Number: 24-000796/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:

Tabitha Carter

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Jonathan Farine, Counsel

For the Respondent: Veronica Gorrell, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Tabitha Carter, the applicant, was involved in an automobile accident on July 17, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to the following attendant care benefits:

a. $277.36 ($479.64 less $202.28 approved) for May 2023;

b. $246.32 ($429.40 less $183.08 approved) for August 2023;

c. $197.11 ($343.52 less $146.41 approved) for September 2023;

d. $346.19 ($520.00 less $173.81 approved) for October 2023;

e. $276.95 ($416.00 less $139.05 approved) for November 2023; and,

f. $248.27 ($352.56 less $104.29 approved) for December 2023?

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

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

RESULT

3The applicant is not entitled to the outstanding balances for attendant care benefits.

4No interest is payable.

5The respondent is not liable to pay an award to the applicant.

PROCEDURAL ISSUES

Page Limits Exceeded

6The respondent submits that the applicant has failed to abide by the submission page limits set out in the Case Conference Report and Order (“CCRO”) dated June 24, 2024. The CCRO indicates the applicant’s and respondent’s written submission will be limited to 7 pages in length.

7The respondent filed submissions of 7-pages in length pursuant to the CCRO.

8In her reply, the applicant submits that the page limits are exclusive of evidence and case law and she summarized relevant evidence, legislation and case law which amounted to 6 pages of her 14-page submissions. Therefore, the applicant argues she didn’t exceed the 7-page limit set out in the CCRO, or in the alternative only the pages including summaries from various case law, legislation and evidence should be excluded.

9I disagree with the applicant that the submissions she made pertaining to case law and evidence are exclusive of the page limit. The CCRO was clear that the page limit for submissions was 7 pages, which includes submissions being made on the evidence and case law to support her position on entitlement. The actual pages of evidence and case law referenced in the submissions and appended as documents are excluded from the page limit.

10The CCRO specified that the hearing adjudicator may not consider submissions which exceed page limits. I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 7-page limits set out in the CCRO. However, in this case, I will admit non-compliant submissions, and assign them whatever weight I deem appropriate.

The CTV News Article is not evidence

11The respondent submits that the CTV news article dated February 15, 2023 is not properly before the Tribunal because it contains unsubstantiated statements regarding the setting of hourly rates for attendant care service providers.

12The applicant made no reply submissions regarding the admissibility of the CTV News article.

13Although s. 15(1) of the Statutory Powers Procedure Act permits the Tribunal to admit and consider hearsay evidence, provided that it is relevant to the subject-matter of the proceeding, I find that the CTV News article has limited probative value, and since the applicant takes no position, I decline to admit it into evidence.

ANALYSIS

Attendant Care Benefits (“ACB”)

14Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant.

15Further, the amount of monthly ACB is determined in accordance with the approved version of the document entitled Assessment of Attendant Care Needs (“Form 1”) that is required to be submitted under s. 42 and is calculated by (a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Financial Services Commission of Ontario’s (“FSCO”) Superintendent’s Guideline No. 01/18 entitled Attendant Care Hourly Rate Guideline, (the “Guideline”), that is payable in respect of that type of care, and (b) adding the amounts determined under clause (a), if more than one type of attendant care is required.

16Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense. Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.

17The applicant submitted a Form 1 dated August 9, 2021, completed by Dylan Laupacis, occupational therapist, of Health Bound Health Network Inc. that indicated that she required ACB in the amount of $2,812.34 per month. According to the Form 1, the applicant requires assistance with: level 1 care for dressing, undressing, grooming, meal preparation, and extra laundry at $1,388.18 per month; level 2 care for hygiene at $1,053.50 per month; and level 3 care for skin care, and bathing at $370.66 per month.

18The respondent approved the Form 1 and agreed to pay ACB up to $2,812.34 per month provided that the applicant submit proof of incurred expenses pursuant to s. 3(7) of the Schedule.

19The applicant confirmed that her entitlement to ACB is not in dispute. Rather, she submits that what is in dispute is whether the respondent must pay the full amount of the Form 1 or if it may restrict the hourly rate of care provided by health care professionals and providers not covered by the Guideline. The applicant seeks a determination of her entitlement to the maximum amount of ACB payable in accordance with the FSCO Revised Attendant Care Hourly Rate Guideline and Clarification of Health Care Providers Subject to the Professional Services Guideline Bulletin A-03/18 (the “Bulletin”) and the Form 1.

20The applicant received attendant care services from AGTA Home Health Care (“AGTA”) and submitted six invoices for May 2023, and August through December 2023. The hourly rate of the invoices was $38.00 per hour for May 2023, August 2023 and September 2023; and $52.00 per hour for October 2023, November 2023 and December 2023. The provider is Susan Rivas Vasquez on all invoices; however, her professional designation is unknown. In addition, the billing reports do not provide particulars of the type of services, however, these reports do indicate the dates and time in and out that services were provided. It is noted that AGTA is in Concord, Ontario and the invoices indicate that “out of region attendant care” was provided to the applicant in London, Ontario. The respondent requested particulars regarding the attendant care provider, however, since it was not provided, the respondent paid the invoices in accordance with the rates set out in the Form 1 for each level of care.

21The respondent partially approved the invoices. It refused to pay the full amount of the invoices on the basis that the invoices submitted by the applicant do not contain the particulars that are required to substantiate that ACB has been incurred for the purpose of a. 3(7)(e)(i) of the Schedule. The respondent argues that the invoices must detail what was done on each day and for how long, to allow for identification of the actual goods and services to which the expenses relate.

22The applicant relies on S.K. v. Aviva Insurance Canada, 2019 ONLAT 19-001127/AABS, and she submits that the Guideline and Bulletin are interpreted to use the hourly rates in the Form 1 for purposes of calculating entitlement, not as a cap for funding the ACB.

23The respondent submits that since it received particulars from AGTA for May 2023, August 2023, September 2023 and December 2023, it paid the invoices in accordance with the hourly rates listed on the Form 1. The respondent further submits that since it has not received particulars for the October 2023 and November 2023 invoices, it applied the ratio method to calculate and partially approve these invoices.

24The respondent relies on Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (“Malitskiy”) in applying the ratio method where there were no particulars provided on the invoices. The respondent further relies on the Guideline in setting hourly rates for levels of care in the Form 1, and it argues that although the Guideline allows an insurer to pay above the maximum hourly rates, an insurer is not required to pay a higher hourly rate.

The applicant has not demonstrated that she incurred the full balance of the invoices

25I find that the applicant has not demonstrated, on a balance of probabilities, that she has incurred the full balance of the invoices submitted for ACB for the period from May 2023 and August to December 2023.

26The applicant submits that the Guideline requires the respondent to pay a higher hourly rate regardless of particulars where the provider’s hourly rate is higher than the hourly rates in the Form 1. The applicant further submit that Malitskiy does not apply to the date of this accident.

27The respondent submits that since the applicant did not provide particulars of the attendant care provided, it paid the invoices using a ratio method, as set out in Malitskiy.

28I do not agree with the applicant’s interpretation of the Guideline, and I find that the Tribunal does not have the authority to require an insurer to pay an hourly rate for ACB greater than the hourly rates set out in the Guideline. Specifically, the Guideline provides that: insurers are not liable for any administration or other charges or surcharges that have the result of increasing the effective hourly rate beyond what is payable under the Guideline.

29I find that in the absence of particulars as required by s. 3(7)(e) of the Schedule, an insurer can apply the ratio method outlined in Malitskiy in order to provide an insured with an interim payment, pending receipt of particulars.

30I find that the evidence does not support that the applicant has incurred the services as set out in s.3(7)(e) of the Schedule.

31I find that the use of the ratio method was appropriate in the circumstances.

There are no ACB owed to the applicant

32I find that there is no discrepancy in the amount of ACB paid by the respondent to the applicant under the ratio method. As a result, I find that there is no outstanding balance owed for ACB.

33Applying the ratio method discussed above, I calculate the ratio percentage as follows, exclusive of HST:

Table 1: Calculation of ratio percentage

Level	Hours per month	Hourly rate	Total	% of Total
Level 1: Dressing, grooming, laundry	93.1667	$14.90	$1,388.18	49.36%
Level 2: Hygiene-bathroom/bedroom	75.25	$14.00	$1,053.50	37.46%
Level 3: Bathing	17.5583	$21.11	$370.66	13.18%
Total Attendant Care Recommended			$2,812.34	100%

34Next, applying the ratio percentage to the six invoices, I calculate the incurred amount of ACB, plus HST, as follows:

Table 2: Calculation of incurred amount of ACB for invoice dated May 2023 in the amount of $479.64 (11.17 hours at $38.00 per hour, plus HST)

Level	Ratio % of Hours	Revised Hours	Rate	Total
Level 1:	49.36% x 11.17	5.513512	$14.90	$82.15
Level 2:	37.46% x 11.17	4.184282	$14.00	$58.58
Level 3:	13.18% x 11.17	1.472206	$21.11	$31.08
Subtotal				$171.81
Plus 13% HST				$ 22.34
Total for Attendant Care Services				$194.15

Table 3: Calculation of incurred amount of ACB for invoice August 2023 in the amount of $429.40 (10 hours at $38.00 per hour, plus HST)

Level	Ratio % of Hours	Revised Hours	Rate	Total
Level 1:	49.36% x 10	4.936	$14.90	$73.55
Level 2:	37.46% x 10	3.746	$14.00	$52.44
Level 3:	13.18% x 10	1.318	$21.11	$27.82
Subtotal				$153.81
Plus 13% HST				$ 19.99
Total for Attendant Care Services				$173.80

Table 4: Calculation of incurred amount of ACB for invoice September 2023 in the amount of $343.52 (8 hours at $38.00 per hour, plus HST)

Level	Ratio % of Hours	Revised Hours	Rate	Total
Level 1:	49.36% x 8	3.9488	$14.90	$58.84
Level 2:	37.46% x 8	2.9968	$14.00	$41.96
Level 3:	13.18% x 8	1.0544	$21.11	$22.26
Subtotal				$123.06
Plus 13% HST				$ 15.99
Total for Attendant Care Services				$139.05

Table 5: Calculation of incurred amount of ACB for invoice October 2023 in the amount of $587.60 (10 hours at $52.00 per hour, plus HST)

Level	Ratio % of Hours	Revised Hours	Rate	Total
Level 1:	49.36% x 10	4.936	$14.90	$73.55
Level 2:	37.46% x 10	3.746	$14.00	$52.44
Level 3:	13.18% x 10	1.318	$21.11	$27.82
Subtotal				$153.81
Plus 13% HST				$ 19.99
Total for Attendant Care Services				$173.80

Table 6: Calculation of incurred amount of ACB for invoice November 2023 in the amount of $470.08 (8 hours at $52.00 per hour, plus HST)

Level	Ratio % of Hours	Revised Hours	Rate	Total
Level 1:	49.36% x 8	3.9488	$14.90	$58.84
Level 2:	37.46% x 8	2.9968	$14.00	$41.96
Level 3:	13.18% x 8	1.0544	$21.11	$22.26
Subtotal				$123.06
Plus 13% HST				$ 15.99
Total for Attendant Care Services				$139.05

Table 7: Calculation of incurred amount of ACB for invoice December 2023 in the amount of $352.56 (6 hours at $52.00 per hour, plus HST)

Level	Ratio % of Hours	Revised Hours	Rate	Total
Level 1:	49.36% x 6	2.9616	$14.90	$44.13
Level 2:	37.46% x 6	2.2476	$14.00	$31.47
Level 3:	13.18% x 6	0.7908	$21.11	$16.69
Subtotal				$ 92.29
Plus 13% HST				$ 11.99
Total for Attendant Care Services				$104.28

35Given the above calculations, I find that the total incurred amount of ACB payable pursuant to the ratio method is $924.13, which is less than the amount paid by the respondent of $948.92.

36I find that there is no outstanding balance owed to the applicant.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits owing, interest is not payable.

Award

38The 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. I find an award is not appropriate because the applicant has not met her onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.

ORDER

39For the reasons set out above, I find that:

i. The applicant is not entitled to the outstanding balances for ACB.

ii. Interest is not payable and the respondent is not liable to pay an award.

iii. The application is dismissed.