Citation: Ring v. Scottish and York Insurance Co., 2025 ONLAT 23-009977/AABS

Licence Appeal Tribunal File Number: 23-009977/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:

Darren Ring

Applicant

and

Scottish and York Insurance Co.

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Nicky Gagnon, Counsel

For the Respondent: James M. Brown, Counsel

HEARD: By way of written submissions

OVERVIEW

1Darren Ring, the applicant, was involved in an automobile accident on August 6, 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, Scottish and York Insurance Co., 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 $3,271.37 ($5,271.37 less $2,000.00 approved for psychological services proposed by Melanie Craig, RSW, in a treatment plan/OCF-18 (“plan”) dated September 27, 2021?

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

RESULT

3The applicant is not entitled to the remainder of the treatment plan in dispute.

4No interest is payable.

5The application is dismissed.

PROCEDURAL ISSUE

6The respondent brought a motion, dated September 16, 2024, seeking the following orders:

i. An Order to exclude the following evidence from the applicant’s document brief:

a. Correspondence from the Ontario Society of Occupational Therapists (“OSOT”) to the Financial Services Commission of Ontario, dated May 16, 2018 (Tab 10);

b. A newspaper article published in the Globe and Mail, dated March 5, 2023 (Tab 11); and

c. An online printout of an inflation calculation using the Bank of Canada website, dated August 29, 2024 (Tab 12).

ii. An Order to strike the applicant’s submissions relating to these documents at paragraphs 15, 16 and the last two sentences of paragraph 17.

7The Tribunal issued an Order on September 16, 2024 that the motion be heard at the written hearing.

8The respondent argues that documents and submissions listed at paragraph 5, above, should be excluded because they are irrelevant and have no probative value. The respondent further submits that the online printout of an inflation calculation using the Bank of Canada website was not previously disclosed in accordance with the Case Conference Report and Order (“CCRO”) dated February 26, 2024, and should be excluded from evidence pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules.

9The respondent submits that the applicant has criticized the existing rates under the Professional Services Guideline (“Guideline”) and relies upon the three documents to support his argument that these rates should be higher than they are as a matter of public policy, however, a policy determination is not the issue that is in dispute. The respondent submits that the issue is the hourly rate for a social worker under the Guideline, not whether the Guideline should be changed.

10The respondent further argues that submissions made on behalf of the OSOT as to the Guideline rates should have no relevance or probative value to the determination of what the existing rates are, let alone the appropriate rate for an entirely different profession such as social workers. The respondent also argues that the complaints of a physiotherapist or the executive director of the Ontario Rehab Alliance quoted in the newspaper article, or the thoughts of the journalist writing the article, have no probative value to determining the existing rate for a social worker under the Guideline. The respondent further submits that the calculation made by the applicant based on the Bank of Canada online inflation calculator has no relevance or probative value as there is no provision under the Insurance Act, RSO 1990, c I.8, the Schedule, or the Guideline that adjusts any of the rates within it for inflation.

11With respect to the online printout of an inflation calculation using the Bank of Canada website, the respondent submits that it was served on September 9, 2024, past the deadline of April 15, 2024 for document exchange set out in the CCRO. The respondent argues that this document should be excluded from evidence and that the submissions referring to them should be struck from the record because the applicant has neither sought leave to serve them late nor explained his noncompliance.

12The applicant submits that he will suffer a great prejudice if the documents are excluded from evidence as they form an integral part of his submissions. The applicant argues that there would be no prejudice to the respondent if they are admitted as the documents at Tabs 10 and 11 were properly served and it has had the chance to make reply submissions regarding the submissions at paragraphs 15 and 16, and the last two sentences of paragraph 17.

13The applicant further submits that the documents in question are relevant to the issue in dispute and have probative value. The applicant argues that his submissions outline that the respondent has discretion to pay a rate above the maximum hourly rate in the Guideline and that the documents support the approval of a higher rate for social workers and provide reasons why the respondent should approve a higher rate.

14The applicant also submits that the online printout of an inflation calculation using the Bank of Canada website was not served prior to September 9, 2024, because the inflation rates are constantly changing and were not posted for 2024 by January 30, 2024, when he served the Case Conference Summary.

15I find that the issue is whether the service provider in this case should be paid more than the hourly rate in the Guideline, and accordingly, the three documents submitted by the applicant have some relevance to the issue in dispute. I also find that the respondent would not be prejudiced if they were admitted into evidence because it has had an opportunity to make submissions and reply submissions in relation to them.

16For these reasons, I deny the respondent’s request to exclude these documents.

ANALYSIS

17To receive payment for a treatment and assessment plan under s. 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. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

The applicant is not entitled to the remainder of the plan

18The applicant has not demonstrated on a balance of probabilities that the remainder of the plan in dispute is reasonable and necessary.

19The plan was proposed by Elhaam Tharoo, occupational therapist, and Melanie Craig, social worker. The plan proposes twelve 1.5-hour counselling sessions, documentation and support activity in the amount of $480.50, and twelve hours of planning and service in the amount of $1,683.00. The goals of the plan are to provide counselling support to assist the applicant in managing high levels of stress, anxiety, and sleep hygiene issues, to develop coping skills to address challenges to parenting his daughter who was recently involved in a serious collision, and to return to activities of normal living.

20The applicant submits that on September 27, 2021, the applicant submitted a plan for psychological services with Melanie Craig, social worker, in the amount of $5,271.37, and on October 5, 2021, the respondent partially denied the plan, only agreeing to pay $2,000.00 (an hourly rate of $100.00) because the respondent believed the rate submitted by the treatment provider exceeded the rate set out in the Guideline and that the fees for planning and service should not be covered.

21The applicant submits that s. 15(2) of the Schedule states that an insurer is not required to pay medical benefits more than the amounts set out in the Guideline; however, the Guideline does not establish the maximum hourly rate for social workers.

22The applicant refers to a letter from the Executive Director of the OSOT to the Superintendent of Financial Services regarding concerns related to fees set out in the Guideline, arguing that because the hourly rate for social workers in that letter is listed as $135.00, one could argue this should be the approved rate. The applicant points out, as indicated in the letter, that the OSOT has been pushing for a change in the Guideline, as it has not been updated since 2014. The applicant submits that the fees of treatment providers have gone up over the years, but the Guideline amounts have not been updated in ten years. The applicant argues that, according to the Bank of Canada online inflation calculator, the rate of $100.00 in the Guideline of 2014 is equivalent to $128.96 in 2024.

23The applicant relies on the Tribunal decision of Rohile v. Intact Insurance Company, 2021 CanLII 13205 (ON LAT) (“Rohile”), submitting the Tribunal held that in some circumstances social workers can provide psychotherapy services and may be paid at the psychologist rate, and that the Guideline allows insurers the discretion to pay above the maximum hourly rate. The applicant submits that because Ms. Craig holds a master’s degree in social work and has over fifteen years of experience in interdisciplinary settings, an hourly rate of $140.25 is reasonable based on her education, experience, and credentials. In the alternative, the applicant submits that Ms. Craig should be paid $135.00 per hour, to reflect the changes in inflation.

24I am not bound by other decisions of the Tribunal and in any event, I find this case is distinguishable. In Rohile, the Tribunal held that there were situations where psychotherapists can be paid at an unregulated rate, but there was no evidence that the treatment provider had specialized training in psychotherapy or cognitive behavioural training or that cognitive behavioural therapy was used. Accordingly, the Tribunal did not approve the higher hourly rate of $149.61 proposed by the applicant. In this case, the applicant put Ms. Craig’s online summary into evidence, which does not indicate that she has any specialized training in psychotherapy. Further, I note that the plan proposes “counseling, mental health and addictions,” and does not refer to psychotherapy.

25The applicant also relies on the Tribunal decision of J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”), submitting that this decision provides justification that a higher hourly rate should be paid in this case. I find that this case is distinguishable because the treatment provider in J.V. was a psychotherapist with specialized training in cognitive behaviour therapy, which is not the case here.

26The applicant further submits that the respondent should be liable to pay for the planning and service fees of $1,683.00 because Ms. Craig has indicated that this fee is usually approved as it is necessary to provide proper service to the client. The applicant argues that this fee includes time spent by the provider in preparing and planning for counselling sessions, as well as for clinical notes and any pre and post intervention testing.

27The respondent submits that, despite the complete lack of clinical notes and records indicating that the applicant suffered from psychological injuries related to the accident, it partially approved the plan at an hourly rate of $100.00 and it agreed to pay for the completion of the OCF-18. The respondent points out that the Guideline prescribes maximum hourly rates for psychologists at $149.61 and psychometrists and counsellors at $58.19. Because social workers are not listed under the Guideline, the respondent submits it agreed to pay an hourly rate of $100.00 as a compromise between the rates provided for psychologists and psychometrists. The respondent refers to other decisions of the Tribunal which held that $100.00 per hour is reasonable for psychological therapy provided by a social worker: see Chen v. Aviva Insurance Canada, 2024 CanLII 41007 (ON LAT), Qian v. Aviva Insurance Company, 2022 CanLII 81517 (ON LAT) and Xu v. Aviva General Insurance Company, 2023 CanLII 23556 (ON LAT).

28The respondent further points out that, while the applicant has challenged the appropriateness of the rates established in the Guideline and the frequency with which they are updated, as a creature of statute, the Tribunal can only apply the law as written and cannot decide legislative policy. The respondent submits that the applicant has not adduced any evidence or authority that would justify a different rate than the one approved by the respondent and has not offered any authority for his suggestion that a higher rate be awarded to address inflation, particularly when the rates of regulated providers remain fixed.

29With respect to the planning and documentation, the respondent points to the Guideline, which states that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges, or surcharges that have the result of increasing the effective hourly rates. The respondent relies on the Tribunal decision of Almasalmah v. Travelers Insurance, 2024 CanLII 2645 (ON LAT), which held that charges for treatment planning fall within administration and overhead and that charges that relate to documentation are a clear example of surcharges that have the result of increasing the hourly rates beyond the established rates. The respondent submits that the applicant has not demonstrated why these additional charges are justified, nor has he proven that they are reasonable and necessary.

30I find that the $100.00 hourly rate approved by the respondent is reasonable given that it falls between the rates provided for psychologists and psychometrists in the Guideline. I agree with the reasoning in the decisions cited by the respondent that this hourly rate is reasonable, given the fact that the applicant has not provided evidence that the plan was proposed for specialized psychological therapy or that Ms. Craig has any training in this regard. Further, I find that the applicant has not provided any statutory authority or caselaw to support his submission that the Tribunal should order a higher hourly rate to reflect the changes in inflation.

31I find that the only evidence provided by the applicant in support of the documentation and planning and service portion of the plan is Ms. Craig’s statement that it is necessary to provide proper service to the client by preparing and planning for counselling sessions, as well as for clinical notes and any pre and post intervention testing. I am not satisfied that the applicant has established that twelve hours of planning and service in the amount of $1,683.00 is reasonable and necessary. I find that these extra fees have the result of increasing the hourly rates beyond the established rates in the Guideline.

32For these reasons, I find that the applicant has not established on a balance of probabilities that the remainder of the plan in dispute is reasonable and necessary.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

ORDER

34For the above reasons, I find:

i. The applicant is not entitled to the remainder of the treatment plan in dispute.

ii. No interest is payable.

iii. The application is dismissed.