Licence Appeal Tribunal File Number: 24-002328/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:
[M.A] (A minor by their Legal Guardian/Parent, [H.A]
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Teresa Walsh
APPEARANCES:
For the Applicant: Georgiana Masgras and Mohammad Shoaib, Counsel
For the Respondent: Andrea R. Lim, Counsel
Interpreters: Wardia Ochana and Aliyah Abas (Arabic language)
Court Reporter: Cathy Petrou
Heard by Videoconference: January 20 to 22, 2025
OVERVIEW
1[M.A], the applicant, a minor, was involved in an automobile accident on September 15, 2021. By his Legal Guardian/Parent Hamed Almohamad, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
3Tribunal Member Melissa Shea was a Co-Adjudicator with me during the hearing of this matter. Due to her unavailability, Adjudicator Shea did not participate in the writing of this decision.
ISSUES
4At the outset of the hearing, in accordance with the Case Conference Report and Order (the “CCRO”), the issues in dispute were attendant care benefits, three treatment plans for medical services and assistive devices, an expense claim for prescription medication, an award under s. 10 of Reg. 664 and interest on any overdue payment of benefits.
5On the third and final day of the hearing, the applicant advised that all disputed issues had been resolved and/or withdrawn except for a narrowed claim for attendant care benefits, as set out below.
6The issue in dispute is:
i. Is the applicant entitled to attendant care benefits in the amount of $1,255.35 per month from February 8, 2022 to May 5, 2022?
RESULT
7For the reasons set out below, I find that the applicant is not entitled to attendant care benefits for the period in dispute.
PROCEDURAL ISSUES
Respondent’s motion regarding applicant’s late service of medical records
8At the outset of the hearing, the Tribunal heard the respondent’s motion to exclude from evidence, or alternatively attribute no weight to, 42 pages of updated medical records for the applicant from the [hospital] (the “[hospital] Records”). In the further alternative, the respondent sought a 60-day adjournment of the hearing to allow for time to review the [hospital] Records. The applicant conceded that the [hospital] records were not disclosed to the respondent in accordance with the CCRO production deadlines and were only disclosed as part of his evidence brief, less than 21 days before the hearing. The applicant provided no reasons for non-compliance with Rule 9.4.
9After considering the relevant Rules and the parties’ submissions, I denied the respondent’s request for a hearing adjournment. I found that the Tribunal’s goal of providing fair and timely resolutions of disputes would be best served here by admitting the [hospital] Records into evidence and permitting the parties to make further submissions in closing regarding any weight to be attributed to them.
10As noted above, by the end of the hearing, only a single issue remained in dispute – the applicant’s entitlement to and the quantum of any payable attendant care benefits from February 8, 2022 to May 5, 2022. For the reasons set out below, the [hospital] Records are not relevant to determining the remaining disputed issue and accordingly, I have assigned no weight to them.
Applicant’s request to add an issue
11During closing argument, the applicant requested that the Tribunal make an order for a new attendant care needs assessment of the applicant under either s. 25 or s. 44 of the Schedule. The applicant offered no authority to support this type of request being granted by the Tribunal during closing argument, after hearing evidence had been completed.
12I deny the applicant’s request. This issue was not identified in the CCRO, and the applicant did not raise it until closing. The respondent did not have notice of the issue before the hearing, and I find that it is not properly before the Tribunal.
ANALYSIS
No evidence of incurred attendant care benefit expenses
13I find that the applicant is not entitled to attendant care benefits as he has not demonstrated that any expenses regarding these benefits have been incurred.
14As noted above, by the end of the hearing, the applicant had narrowed his claim for attendant care benefits to the period between February 8, 2022, the date of the assessment of attendant care needs (Form 1) prepared by the applicant’s RN assessor, Yasmin Ross, and May 5, 2022, the date of the Form 1 prepared by the respondent’s occupational therapy assessor, Lisa Knudstrup.
15Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses that are incurred by or on behalf of an insured person as a result of an accident for services provided by an aide, attendant or long-term care facility. Section 42(1) of the Schedule provides that an application for attendant care benefits 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”).
16Section 3(7)(e) of the Schedule provides guidance on when an expense is incurred: (i) the insured person has received the goods and services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods and services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods and services to the insured person.
17The applicant bears the burden of proving entitlement to attendant care benefits on a balance of probabilities.
18During the hearing, the applicant’s mother, [A.A], testified that:
i. she has provided most of the assistance/services to the applicant post-accident regarding his activities of daily living;
ii. she has provided the assistance/services as a family member and not in the course of any employment, occupation or profession in which she would ordinarily have been engaged, but for the accident; and
iii. she has not been employed outside the home in any capacity before or since the accident.
19In closing argument, applicant’s counsel stated that there were no invoices or any other evidence of economic loss sustained by [A.A] in providing assistance/services to the applicant post-accident, including for the three-month period in issue.
20Based on the foregoing, I find the applicant is required, under ss. 19(1) and 3.7(e)(iii)(B) of the Schedule, to show that attendant care expenses have been incurred regarding the period in issue, due to [A.A] sustaining an economic loss as a result of providing attendant care services to the applicant. I further find that the applicant has not met his burden to establish any economic loss by [A.A] in providing such services during the period in issue.
21Accordingly, I find that the applicant has not met his onus in demonstrating, on a balance of probabilities, any entitlement to any attendant care benefits.
No basis for finding deemed attendant care benefit expenses
22I find that the applicant has not established that although no attendant care expenses have been incurred under s. 3(7)(e)(iii)(B) of the Schedule for the relevant period, I can find that expenses are deemed to have been incurred.
23In support of his argument that he is entitled to deemed attendant care benefit expenses, the applicant relies on the Ontario Divisional Court decision, Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”).
24I find that the circumstances of the case and the holdings of the Court in Suarez are not applicable to this case.
25In Suarez, the Court addressed the issue of an insurer’s non-compliance with notice requirements to an insured under s. 38(8) of the Schedule, upon receipt of a treatment and assessment plan (the “plan”). Section 38(11) requires an insurer to pay for all goods, services, assessments and examinations described in the plan if it has failed to provide timely and/or sufficient notice to the insured in response to the plan, as required by s. 38(8). The insurer’s requirement to pay continues during the period of non-compliance. Among other things, the Court in Suarez held that an applicant is not required to incur treatment expenses under a plan before disputing the insurer’s non-compliant denial before the Tribunal. The Court also confirmed that the consequences set out in s. 38(11) are mandatory, and the Tribunal has discretion under s. 3(8) of the Schedule to deem plan expenses incurred due to the insurer’s non-compliance with the provision.
26The Suarez case deals specifically with an insurer’s notice requirements under s. 38 of Schedule, in response to plans for medical and rehabilitation benefits. The case also specifically deals with the ability of an applicant to seek a determination from the Tribunal that expenses for medical and rehabilitation benefits are deemed incurred due to the insurer’s non-compliance with s. 38.
27The applicant provided no evidence or submissions regarding Suarez’s relevance to this case and the attendant care benefits in issue. Indeed, it is s. 42 of the Schedule, not s. 38, that addresses an insurer’s notice and other obligations to an insured in response to a claim for attendant care benefits and the applicant’s submissions did not address s. 42.
28For the foregoing reasons, I find that the applicant has not established, on a balance of probabilities, that he is entitled to attendant care benefits for the period in issue, including because expenses for the benefits should be deemed to have been incurred.
ORDER
29For the reasons outlined above, I find that:
i. The applicant is not entitled to attendant care benefits for the period February 8, 2022 to May 5, 2022.
Released: April 14, 2025
__________________________
Teresa Walsh
Adjudicator