Kevin Orme v. TD General Insurance Company, 2025 CanLII 125975

2122-000591/AABS - A

Licence Appeal Tribunal File Number: 2122-000591/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:

Kevin Orme

Applicant

and

TD General Insurance Company

Respondent

AMENDED DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Gavin Cosgrove, Counsel

For the Respondent: Nathan Tischler, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Kevin Orme (the “applicant”) was involved in a motor vehicle accident on May 29, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TD General Insurance Company (the “respondent”) denied a number of treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Two facts regarding the subject accident are noteworthy with regard to the issues in dispute. On June 23, 2021, the respondent confirmed that the applicant had been designated catastrophically impaired as a result of the accident. Also, on or around July 31, 2021, the applicant moved out of the farm home in Ontario that was his primary residence at the time of the accident. He subsequently moved to a new home on a farm in Prince Edward Island.

SUBSTANTIVE ISSUES

3The following substantive issues are in dispute:

1. Is the applicant entitled to expenses in the amount of $544.00 in an Expenses Claim Form/OCF-6 dated October 26, 2021?
2. Is the applicant entitled to expenses in the amount of $581.00 in an Expenses Claim Form/OCF-6 dated December 29, 2021?
3. Is the applicant entitled to expenses in the amount of $250.00 in an Expenses Claim Form/OCF-6 dated May 17, 2022?
4. Is the applicant entitled to $277,895.75 for assistive devices proposed by Innovative Occupational Therapy in a treatment plan/OCF-18 dated February 25, 2022?
5. Is the applicant entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule?

4On December 19, 2022 the applicant filed a Tribunal Notice of Motion (“NOM”) with the consent of the respondent seeking to convert the original format for this hearing from videoconference to written, as an income replacement benefit (“IRB”) dispute had been resolved. This was granted by the Tribunal in a Motion Order dated January 10, 2023 that also set a schedule for the filing of written submissions and the maximum page lengths of those submissions.

5Further, the applicant in submissions confirmed adjusted amounts for issues #1 and #2 as listed above. The respondent acknowledged these changes in its own submissions and provided its argument and evidence based on these same amounts. I have adjusted the amounts in issues #1 and #2 accordingly.

PRELIMINARY ISSUES

6In a NOM filed with the Tribunal on July 7, 2023 that was scheduled to be heard as part of the written hearing, the respondent requested the following:

i. An order striking the applicant's reply submissions to the extent that they exceed the seven-page limit set by the motion order of adjudicator Samia Makhamra dated January 9, 2023. ii. An order striking the Supplemental Document Brief of the applicant.

RESULTS

7With respect to the preliminary issues, I find in favour of the respondent and exclude portions of the applicant’s reply submissions, as detailed below.

8With respect to the substantive issues, I find that the applicant is not entitled to any of the expenses in dispute, nor the treatment plan. It follows that he is also not entitled to interest.

ANALYSIS

PRELIMINARY ISSUES

9I find that the applicant has contravened the motion order of the Tribunal dated January 9, 2023. As a result, I am excluding paragraphs one through three of his written submissions and the entirety of his supplementary document brief.

10In its July 7, 2023 NOM, the respondent requests that parts of the applicant’s written reply submissions be struck. It submits that the written reply as submitted on that same date by the applicant was nine pages long, exceeding the seven-page limit established by the Tribunal Motion Order dated January 9, 2023. Further, the respondent submits that the applicant filed a supplementary document brief with his reply submissions that was not permitted in the Tribunal motion order. It argues that these contraventions of the motion order have resulted in a violation of procedural fairness and prejudiced its ability to make a full answer in defence of this matter.

11As a remedy, the respondent requests that any pages in the applicant’s written submissions over the seven-page limit be excluded, as well as the entirety of the supplementary document brief. It relies on s. 23(1) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), which allows the Tribunal to “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

12The respondent also relies on Rules 3.1(c), 9.2(a), and 9.4 of this Tribunal’s Common Rules of Practice & Procedure. Rule 3.1(c) states that the rules will be liberally applied and may be waived or varied. Rule 9.2(a) states that a party shall disclose all documents and evidence at least 10 days before a hearing. Rule 9.4 states that a party failing to comply with rules, directions, or orders with respect to the disclosure of documents may not rely on those documents without the consent of the Tribunal. Lastly, the respondent further relies on Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (Paras. 21-28), a Supreme Court of Canada decision that established parameters when determining the common law duty of procedural fairness.

13The applicant counters in its NOM submissions dated July 14, 2023 that both requests should be denied. In the alternative, the applicant requests that if the Tribunal orders the exclusion of any part of the written reply submissions, that it remove paragraphs one through three, which address his reasons for the inclusion of the supplementary document brief, and the conclusion, which repeats the relief sought as presented in his original written submissions.

14On the first issue, he submits that the written reply submissions “reasonably exceeded the limit for the purpose of facilitating a fair, open and accessible process and ensuring an efficient conclusion to these proceedings.” In addition, he notes that the respondent’s submissions contained “novel” material, including “misleading and factual errors,” that warranted added space for a reply.

15On the second issue, the applicant submits much the same argument. He writes that the additional documents in the supplementary brief were already in the possession of the respondent, were shared for the purpose of facilitating a fair and open process, and that these documents were required to address errors in the respondent’s materials.

16I agree with the respondent on the first issue. It is important that parties follow Tribunal orders, to ensure procedural fairness and the integrity of the hearing process. Additionally, I do not find the applicant’s rationale entirely convincing, as he provides no detailed explanation why he needed the extra pages beyond an unsupported general assertion that the respondent made “novel” arguments and erroneous statements in its submissions.

17I rely on Rule 9.4 and do not consent to including the portions of the applicant’s reply submissions that exceed the seven-page limit established in the January 9, 2023 Tribunal motion order. However, these submissions barely go over nine pages. So, I also agree with the remedy suggested by the applicant. Therefore, I exclude paragraphs one through three and the conclusion section of the applicant’s reply submissions, which reduces these submissions to approximately seven pages in total.

18I also agree with the respondent on the second issue, for similar reasons. I rely on Rule 9.4 and do not consent to including the supplementary document brief. It is important that parties follow Tribunal orders, and the submission of a new brief with reply submissions was clearly not permitted in the motion order of January 9, 2023.

19Further, I am not persuaded by the applicant’s argument that this brief was necessitated by the respondent’s submissions, as this explanation is lacking in detail. Also, I find the applicant’s explanation that the respondent was already in possession of some of these documents to be less than satisfactory. If that were the case, I fail to understand why the applicant did not direct the respondent to these documents in his written reply submissions; there was no need to submit them again. If that were not the case, then the new documents submitted in the supplemental brief amount to a procedural ambush that would prejudice the respondent, who would of course be unable to respond to such evidence.

20In summation, I am excluding paragraphs one through three of the applicant’s written submissions and the entirety of the applicant’s supplementary document brief. I am not considering either in the context of rendering this decision.

SUBSTANTIVE ISSUES

Expense Claim Forms/OCF-6s Dated October 26, 2021, December 29, 2021, and May 17, 2022

21I find that the applicant is not entitled to $544.00 in an OCF-6 dated October 26, 2021, nor $581.00 in an OCF-6 dated December 29, 2021, nor $250.00 in an OCF-6 dated May 17, 2022. Accordingly, he is also not entitled to interest.

22Each of the expense forms in dispute is for similar housekeeping/home maintenance expenses, save one item involving massage therapy.

23The amount of the OCF-6 dated October 26, 2021 that remains in dispute ($544.00) is for housekeeping and home maintenance services performed by Terry Maids.

24The OCF-6 dated December 29, 2021 is for a total of $581.00. It includes housekeeping and home maintenance services in the amount of $350.00 performed by Don Bayliss (D & D Renos) and three sessions of massage therapy provided by Leslie Teeple, registered massage therapist, in the amount of $231.00 (three sessions billed at $77.00 each).

25The amount of the OCF-6 dated May 17, 2022 that remains in dispute ($250.00) is for housekeeping and home maintenance services, also performed by Don Bayliss (D & D Renos).

26As noted above, the applicant was designated catastrophically impaired on June 23, 2021. Section 23 of the Schedule addresses housekeeping and home maintenance:

23. The insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

27Section 38 of the Schedule applies to all medical rehabilitation benefits other than those payable in accordance with the Minor Injury Guideline (“MIG”). Section 38(2) addresses those medical or rehabilitation benefits that an insurer is not liable to pay, including when an expense was incurred before the submission of a treatment plan, unless certain criteria are met to allow for an exception.

28Most noteworthy here with regard to the massage therapy sessions is 38(2)(d), which states that an insurer is not liable to pay such an expense unless “the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in clause 15(1)(h) or 16(3)(l) with a cost of $250.00 or less per item or service.” Sections 15(1)(h) and 16(3)(l) each refer to “other goods and services that the insurer agrees are essential for the treatment of the insured person.”

29It is the burden of the applicant to demonstrate, on a preponderance of the evidence, that such housekeeping and home maintenance services are reasonable and necessary. In addition, and in accordance with s. 23 of the Schedule, the applicant must demonstrate that he “normally performed” these housekeeping and home maintenance services before the accident.

30In this instance, the applicant submits that the housekeeping and home maintenance expenses are reasonable and necessary. He argues that the invoices were sufficiently detailed and involve general house maintenance services. With regard to the three massage therapy sessions included in the OCF-6 dated December 29, 2021, the applicant submits that the respondent had previously approved them and also that they should be payable due to s. 38(2)(c)(ii) of the Schedule, which details one of the four exceptions to the rule in s. 38(2) that an insurer is not liable to pay an expense incurred before the submission of an approved treatment plan:

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

1. Goods referred to in clauses 15(1)(d) to (f) and 16(3)(h) to (j);

31The respondent counters that it paid $100.00, or one week, of housekeeping and home maintenance services performed at the time of the first submitted OCF-6 dated October 26, 2021, but then stopped payment because the applicant failed to respond to queries about when the expense was incurred. The respondent maintains that the housekeeping and home maintenance expenses in the three OCF-6s in dispute are not payable, as the applicant failed to provide evidence demonstrating that he normally performed these tasks before the accident, in accordance with s. 23 of the Schedule.

32In respect of the massage therapy sessions, the respondent argues that these expenses should be denied in accordance with s. 38(2) of the Schedule as the applicant had not received approval before incurring them. The respondent also claims that none of the four exceptions listed in s. 38(2)(d) apply and that the massage therapy is not one of the “goods” referenced in s. 38(2)(c)(ii).

33I agree with the respondent regarding all expenses in these OCF-6s.

34First, to address the housekeeping and home maintenance expenses.

35To begin with, the applicant has not fully detailed his invoices. Although he has adduced the OCF-6s and specific invoices for services rendered by both Terry Maids and Don Bayliss (D & D Renos), I concur with the respondent that some of the line items are not sufficiently detailed. The OCF-6 dated October 26, 2021 lists just “house cleaning/carpet cleaning;” the OCF-6 dated December 29, 2021 notes only “home maintenance” and an illegible notation (all the OCF-6s are handwritten) followed by “Nov-Dec;” and the OCF-6 dated May 17, 2021 lists what appears to be “help with the house.”

36Also, the applicant has not provided information in submissions to document that he normally performed these tasks before the accident. In the absence of such evidence, I cannot assume that he did such housekeeping and home maintenance work pre-accident. Also, the May 17, 2021 OCF-6 references an invoice from Don Bayliss (D & D Renos) that lists “the removal of doors to make way for freezers,” “relocation of freezers into a pre-prepared room,” and the “removal of old wooden grain shoot from attic and ceiling.” Each of these tasks seem to be more singular events involving home renovations, not regular housekeeping or home maintenance. Further, there is also no indication that the applicant performed such tasks prior to the accident.

37Accordingly, the applicant has not met his onus and demonstrated that he performed the housekeeping and home maintenance tasks prior to the accident. He is not entitled to these expenses, nor interest.

38Second, to address the massage therapy session expenses.

39Here, the applicant has not provided information that these massage therapy sessions had been approved by the respondent before they were incurred, in accordance with s. 38(2) of the Schedule. The applicant states that he “had prior approval of massage,” in written submissions, but does not direct me to proof of this claim. In the absence of such evidence, I accept the respondent’s position that it did not provide such approval.

40In addition, I agree with the respondent that the massage therapy expenses do not fall within the exception as noted in s. 38(2)(c)(ii) of the Schedule. As massage therapy is not listed in s. 15(1)(a)-(g) of the Schedule, it would need to fall into s. 15(1)(h): “other goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person, and for which a benefit is not otherwise provided in this Regulation.” As the respondent makes clear in submissions, the insurer does not agree. Lastly, s. 16(3)(l) does not apply, as this also requires the insurer to agree that the other goods and services are essential, which the respondent expressly denies.

41For the above reasons, the applicant has not met his burden and established entitlement to the massage therapy sessions.

42In summation, the applicant is not entitled to the amounts of these three OCF-6s that remain in dispute, nor interest.

43I find that the applicant is not entitled to the treatment plan/OCF-18 in the amount of $277,895.75 for assistive devices dated February 25, 2022. As no amount is owing, interest is not applicable.

44To be entitled to a treatment plan under ss. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

45This treatment plan was completed by Samantha Payton, occupational therapist, of Innovative Occupational Therapy Services and is for assistive devices to aid in the applicant’s recovery and return to the activities of normal living. It lists the following items and amounts, not including taxes:

1. Documentation $200.00
2. Preparation $119.92
3. John Deere Compact Utility Tractor $51,523.77
4. JCB Teleskid 3TS-8w (includes telescopic jib and pallet fork) $146,107.50
5. Snow blower $16,400.00
6. Wood splitter conveyor $13,700.00
7. Kubota RTV X1100 $26,252.55
8. Portable fuel tank $1,899.00
9. Storage bins $2,250.00
10. Noise cancellation headphones $355.56
11. Starlink Wi-Fi equipment $821.10
12. Starlink Wi-Fi monthly cost ($148.35 x 12 months) $1,780.20
13. Tidal Fit Ep14 electrical work + concrete $11,168.60

46The applicant submits that these items are assistive devices that support his reintegration into society. He argues that this treatment plan should be “given greater weight” than the denial letter of the insurer, largely because this plan was accompanied by a 12-page Occupational Therapy Devices Submissions Letter, also completed by Ms. Payton. In this document, Ms. Payton detailed each recommended item and provided support for their therapeutic purpose in relation to the applicant’s accident-related injuries and sequelae. The applicant argues that this letter is preferable to the respondent’s denials, which have “no basis in medicine.”

47The applicant requests that this treatment plan be approved in full. Barring that, the applicant requests that items 2, 4, 5, 7, 9, 10, and 13 be approved in the amount of $207,495.03, due to his claim that the respondent did not mention them in its hearing submissions.

48The respondent counters with the assertion that items 3, 8, 11, and 12 listed above are not payable in accordance with s. 38(2) of the Schedule, as they were incurred before the submission of the treatment plan and none of the four exceptions in s. 38(2)(a)-(d) apply here.

49Further, the respondent states that the applicant has not made clear in submissions which provision of the Schedule he is relying on to claim the goods and services in this treatment plan. The respondent also claims that none of the items itemized in this treatment plan are essential for the applicant’s rehabilitation, as required by s. 16(3)(l) of the Schedule.

50Lastly, the respondent raises s. 16(4)(b) of the Schedule concerning the applicant’s move from Ontario to Prince Edward Island. It alleges procedural unfairness about an assessment of the Ontario property as the applicant moved before submitting this plan and claims the new owner did not permit an assessment.

51For the reasons detailed below, I agree with the respondent.

52First, the applicant is not entitled to items 3, 8, 11, and 12—the John Deere tractor, portable fuel tank, and Starlink internet installation and monthly subscription fees—as it is clear from the invoices and the occupational therapist support letter that these items were incurred before the submission of the treatment plan.

53In addition, and in the absence of evidence to the contrary (the applicant failed to comment directly on the incurred argument of the respondent in either initial or reply submissions), I accept the respondent’s position that it did not agree to pay for these items prior to the submission of the treatment plan in accordance with s. 38(2)(a) of the Schedule and that the other three exceptions noted in s. 38(2)(b)-(d) do not apply here.

54Second, the applicant is not entitled to the remainder of the items (1, 2, 4, 5, 6, 7, 9, 10, and 13) as he has not met his onus and demonstrated them to be reasonable and necessary. While the applicant references the occupational therapist support letter that accompanied the treatment plan, he does so in its totality; he does not direct me to specific evidence within that letter supporting his argument that these items should be deemed reasonable and necessary. An applicant cannot simply submit evidence and leave it up to the adjudicator to connect the dots and make his case. The applicant must explicitly explain why the evidence is supportive of his case. Here, he has failed to do so.

55In addition, a review of the occupational therapy letter reveals another problematic issue that undermines the applicant’s case regarding the remaining items listed in the treatment plan. While Ms. Payton conducted her own virtual occupational therapy sessions, her letter seems to have been significantly based on a number of reports that the applicant has not provided in his submissions for this hearing.

56Ms. Payton references: a catastrophic executive summary completed by Dr. Ben Meikle dated June 23, 2021; an undated occupational therapy report completed by Stephanie McHugh based on the applicant’s prior residence in Ontario; a report from Dr. Gammon, orthopedic surgeon, dated September 17, 2019; an occupational therapy situational assessment completed by Barbara Moroney and dated November 6, 2020; and the results of a “collateral interview” with the applicant’s wife dated February 18, 2022. Yet the applicant did not include these reports in his written submissions, rendering it impossible for me to assess these documents.

57Further, the applicant’s submissions on this treatment plan in total request that I make a determination based on the absence of respondent medical evidence. The applicant focuses on a critique of the respondent’s denial letter and decision not to order an insurer’s examination pursuant to s. 44 of the Schedule regarding this treatment plan, which, as noted above, he submits means that the respondent’s position has “no basis in medicine.”

58However, while it is fair to criticize the respondent for not scheduling an IE to review the treatment plan, this argument does not automatically make the applicant’s argument stronger. The onus is still on the applicant to meet his burden. In my view, and as detailed above, he does not do so.

59Lastly, I find that it is not necessary to provide a ruling regarding the respondent’s submissions addressing s. 16(3)(l) or s. 16(4)(b) of the Schedule. As I have found the applicant to have incurred some of the expenses before submitting the treatment plan and to have failed to demonstrate the reasonable and necessary nature of this treatment plan overall, such findings are not required.

60Accordingly, the applicant is not entitled to this treatment plan, nor interest.

ORDER

61I find that the applicant is not entitled to any of the expenses in dispute, nor the treatment plan. It follows that he is also not entitled to interest

62The application is dismissed.