Licence Appeal Tribunal File Number: 22-003322/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:
Michael Schindelheim
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Christopher Evans
APPEARANCES:
For the Applicant:
Imtiaz Hosein, Counsel
Joseph Campisi, Counsel
Jonathan Mertz, Counsel
Christos Kakaletris, Articling Student
For the Respondent:
Geoffrey Keating, Counsel
Reporter:
Cindi Adalath
Heard by Videoconference:
March 31, 2025
OVERVIEW
1Michael Schindelheim, the applicant, was injured in a car accident on May 2, 1997. He is entitled to benefits under the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O Reg 403/96 (the “1996 Schedule”). On July 5, 2021, he claimed attendant care benefits (“ACBs”) retroactively from the date of the accident and prospectively. TD General Insurance Company, the respondent, initially denied the claim and commissioned an insurer’s examination for an attendant care needs assessment. On October 27, 2021, it determined that he was entitled to prospective ACBs. It maintains that he is not entitled to retroactive ACBs.
2The applicant filed a Tribunal application disputing his entitlement to retroactive ACBs. The Tribunal first decided the application in Schindelheim v TD General Insurance Company, 2023 CanLII 84399 (ON LAT) and upheld its decision on reconsideration in Schindelheim v TD General Insurance Company, 2023 CanLII 122943 (ON LAT). Relying on the Ontario Divisional Court’s decision in Morrissey v Wawanesa Insurance Company, 2022 ONSC 4398 (Div Ct), the Tribunal took the test to be whether the applicant’s delay in submitting a retroactive assessment of attendant care needs (Form 1) was due to “urgency or impossibility or impracticability of compliance” with the requirements of the Statutory Accident Benefits Schedule — Effective September 1, 2010, O Reg 34/10 (the “2010 Schedule”) or whether expenses for attendant care services were incurred as defined by the 2010 Schedule: Schindelheim v TD General Insurance Company, 2023 CanLII 84399 (ON LAT) at para 14. The Tribunal found that the applicant had not met this test and dismissed the application.
3The applicant appealed the Tribunal’s decisions. Before the appeal was heard, the Ontario Court of Appeal overturned the Divisional Court’s decision in Morrissey: Morrissey v Wawanesa Insurance Company, 2024 ONCA 602. The parties agreed that the Tribunal’s decisions could not stand in light of the Court of Appeal’s reasons. In a consent order dated September 12, 2024, the Divisional Court quashed the decisions, remitted the application to the Tribunal for a new hearing, and stated the issues for the Tribunal to decide. The Tribunal scheduled a one-day videoconference hearing on consent. The parties did not call witnesses, and made documents from the first hearing exhibits as they referenced them in their oral submissions.
ISSUES
4The Divisional Court’s order states the following issues for the Tribunal to decide:
Is Michael Schindelheim entitled to retroactive Attendant Care Benefits from May 1997 to July 2021?
If Michael Schindelheim is entitled to retroactive Attendant Care Benefits, what is the quantum of his entitlement?
If Michael Schindelheim is entitled to retroactive Attendant Care Benefits, at what point in time does interest accrue on his entitlements?
If Michael Schindelheim is entitled to retroactive Attendant Care Benefits, is he also entitled to a special award pursuant to s. 10 of [Regulation 664: Automobile Insurance]?
RESULT
5The applicant is partly entitled to the ACBs in dispute.
6Interest began to accrue on July 20, 2021.
7The applicant is entitled to an award under s. 10 of Regulation 664.
PROCEDURAL ISSUE
8On the morning of the hearing, the applicant filed a document titled “Oral Roadmap of the Applicant.” In substance, it is a 56-page written argument with footnotes containing hyperlinked pinpoint references to documents. The applicant requested that I take notice of the Roadmap, arguing that doing so would enable counsel to efficiently take me to the documents he intended to enter as exhibits. The respondent objected, arguing that the Case Conference Report and Order did not permit the parties to file written submissions, and that it would be prejudiced if the applicant were permitted to do so in addition to making oral submissions.
9I permitted the applicant’s counsel to use the hyperlinked footnotes in the Roadmap to take me to documents during his oral submissions. I made it clear that I would only use the hyperlinks in the footnotes to access documents, and that I would not review the submissions in the body of the Roadmap. Using the Roadmap for that narrow purpose was consistent with the Case Conference Report and Order and did not prejudice the respondent.
ANALYSIS
10The applicant was 16 years old at the time of the accident. His injuries included a severe brain injury. At the scene of the accident, he scored six out of fifteen on the Glasgow Coma Scale. Because he scored below ten, he sustained a catastrophic impairment within the meaning of s. 2(1) of the 1996 Schedule.
11The applicant was taken immediately to Sunnybrook Hospital, where he stayed from May 2 to May 30, 1997. He was unconscious for days after the accident. During that time, he breathed and was fed through a tube. When he regained consciousness, he was unable to walk or get out of bed, and his abilities to talk and process information were severely impaired.
12On May 31, 1997, the applicant was transferred from Sunnybrook to the Rehabilitation Institute of Toronto, commonly known as Toronto Rehab. He was an in-patient there until July 2, 1997, when he was released into the care of his parents and sister. He lived with his parents for the next 11 years until July 3, 2008.
13The applicant applied for and received medical and rehabilitation benefits. Among other things, he received treatment from an occupational therapist and a social worker for several years following the accident, underwent medical assessments from time to time, and was reimbursed for memory aids including a laptop, Palm Pilot, and iPad.
14The applicant did not apply for or receive ACBs until 2021. He testified that he did not apply for them earlier because he did not know what they were or that he could apply for them.
15Section 16 of the 1996 Schedule governs the applicant’s entitlement to ACBs. Subsection (2)(a) provides that that the ACB shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. Subsection (4) provides that the monthly amount payable shall be determined in accordance with Form 1. Form 1 was part of the 1996 Schedule until March 1, 2006, when it was revoked: O Reg 546/05, s. 31. Form 1 is now a document issued by the Financial Services Regulatory Authority of Ontario.
16In Morrissey, the Court of Appeal held that under s. 16 of the 1996 Schedule, ACB expenses were incurred if they were reasonably necessary and the amount of the expenditure could be determined with certainty: paras 11, 64, 73. The parties agree that this is the test to be applied.
17The applicant must prove that the ACBs were “reasonable and necessary” to establish that he is entitled to them, and that they were “reasonably necessary” to establish that he incurred them. I take the terms “reasonable and necessary” and “reasonably necessary” to be substantively the same. For the sake of simplicity, I use only the term “reasonable and necessary” in this decision.
Issue One: Is the applicant entitled to retroactive Attendant Care Benefits from May 1997 to July 2021?
18The applicant relies on a report and Form 1s drafted by Amina Shafi, an occupational therapist. He submits that the Form 1s enable the Tribunal to determine the amount of the expenditure for ACBs with certainty as Morrisey requires. Ms. Shafi drafted four Form 1s for the following time periods:
May 2 to May 30, 1997, when the applicant was an in-patient at Sunnybrook;
May 31 to July 2, 1997, when the applicant was an in-patient at Toronto Rehab;
July 3, 1997 to July 2, 2008, when the applicant lived with his parents; and
July 3, 2008 ongoing, after the applicant moved out.
May 2 to May 30, 1997
19The applicant was an in-patient at Sunnybrook during this period. I find that he has not established that ACBs were reasonable and necessary.
20Ms. Shafi opined that the applicant required 24-hour basic supervisory care because he lacked the ability to independently get in and out of a wheelchair or to be self-sufficient in an emergency. She states that hospitals generally do not provide attendant care support and expect families to provide that support or hire someone to provide it. She cites an “attached letter to/from [the] Ministry of Health” in support of this statement, but the letter is not attached to the copy of her report that was made an exhibit. She states further that had there been an emergency requiring the hospital to be evacuated, there would not have been enough hospital staff to assist immobile patients such as the applicant.
21The applicant was completely incapacitated when he was first taken to Sunnybrook on May 2, 1997. He testified that by the end of his stay, he used a wheelchair or a walker “up to [his] neck” to get around with his parents’ help. The issue for me to decide is not whether the applicant required supervision to exit Sunnybrook in an emergency, but whether Sunnybrook provided that supervision.
22The applicant relies on two cases in which the Financial Services Commission of Ontario held that insured persons were entitled to ACBs even though they were in-patients at medical facilities: Markus Haimov v ING Insurance Company of Canada, 2007 ONFSCDRS 92 and Aaron Lane v Economical Mutual Insurance Company, 2008 ONFSCDRS 95.
23The respondent argues that the onus is on the applicant to prove that ACBs are reasonable and necessary, and that he has not done so. It notes that on cross-examination, Ms. Shafi conceded that she had no first-hand knowledge of the procedures in place at Sunnybrook in 1997. It argues that Haimov is distinguishable because there was evidence proving that the facility did not provide the attendant care services in question. In this case, there is no such evidence. The respondent argues further that this case is analogous to Singer v The Co-operators General Insurance Company, 2022 CanLII 68271 (ON LAT). In that case, the Tribunal found that a passing reference to a letter from the Ministry of Health fell far short of establishing that hospital staff could not be relied upon to assist patients in exiting the building during an emergency: para 31.
24I find that the applicant has not established that ACBs for basic supervision were reasonable and necessary. Assuming that hospitals generally do not provide attendant care, it is a matter of speculation whether Sunnybrook did in 1997. Ms. Shafi did not know herself. Even if Sunnybrook did not provide attendant care, it does not necessarily follow that hospital staff would have been unable to help patients exit the building in an emergency.
25Haimov establishes that ACBs may be reasonable and necessary for services that medical facilities do not provide. Conversely, ACBs are not reasonable and necessary for services that facilities do provide. What services a facility does and does not provide is a question of fact.
26Haimov is distinguishable because there was evidence showing that the facility did not provide the attendant care services at issue. Regarding the need for 24-hour supervision, for example, an expert neurologist opined that the insured person was likely to have a seizure, in which case nursing staff would have to be alerted immediately. However, the staff-to-patient ratio at the facility allowed for only 3.5 to 12 minutes of direct supervision per hour. I have not been referred to any comparable evidence in this case.
27Lane held that ACBs are not reasonable and necessary for services provided by a medical facility. In that case, the facility offered attendant care to its patients. The insured person’s parents were unaware that it did and consequently provided the attendant care themselves. The Arbitrator held that as a general principle, the respondent would not be required to pay for attendant care services offered by the facility. However, he found that the attendant care provided by the insured person’s parents was reasonable and necessary under the circumstances because the facility did not inform them that it offered those services. In this case, there is no evidence that Sunnybrook offered attendant care to patients but did not tell the applicant’s family.
28As the applicant has not established that Sunnybrook would have been unable to help him exit the building in an emergency, he has not established that ACBs for basic supervision were reasonable and necessary.
29I recognize that the applicant’s family members stayed with him continuously during his time at Sunnybrook and were intensively involved in his care, such as brushing his teeth, taking him to the bathroom, and helping him with skincare and changing his bandages. While their efforts were no doubt extremely helpful to the applicant, he is not entitled to ACBs for them. First, he has not established that Sunnybrook did not provide those services itself. Second, they are not set out in Ms. Shafi’s Form 1 for this period. Section 16(4) of the 1996 Schedule provides that the monthly amount payable by an ACB shall be determined in accordance with Form 1. Doing so quantifies the amount expended for attendant care services with certainty as Morrissey requires. Based on the evidence before me, I would be unable to quantify that amount myself.
May 31 to July 2, 1997
26The applicant was an in-patient at Toronto Rehab during this period. I find that he has not established that ACBs were reasonable and necessary.
27Ms. Shafi opined that the applicant required the following attendant care services:
90 minutes per day to prepare, serve, and feed meals;
45 minutes per day to supervise and assist with walking; and
The remainder of each day for basic supervisory care to help the applicant exit the building in an emergency.
28I address each of these services in turn.
Preparing, serving, and feeding meals
29The applicant has not established that ACBs for this service were reasonable and necessary.
30Ms. Shafi noted that an “admission OT chart” stated that the applicant required support with cooking and functional mobility, a “discharge summary” found him to be independent in cooking, but a “discharge OT chart” recommended cognitive rehabilitation for memory, attention, and processing speed. She concluded that it may not have been completely safe for him to make his own food on a consistent basis. On cross-examination, she conceded that she did not know whether the applicant was responsible for preparing his own meals at Toronto Rehab.
31The applicant testified that during his stay at Toronto Rehab, he received treatment during the day and his parents would visit from 3:00 to 9:00 p.m. Toronto Rehab provided his meals. He needed help to eat at the beginning of his stay. He recalled an episode where his parents took him to McDonald’s and had to cut his food into small pieces. His mother testified that when she was with him in the evenings, Toronto Rehab would bring his dinner and she would feed him.
32I accept that the applicant would have been unable to cook during his stay at Toronto Rehab. However, he has not established that he was required to cook. He and his mother testified that Toronto Rehab provided his meals. Assuming that kitchen facilities were available to patients at Toronto Rehab, it is unlikely that a 16-year-old who had recently sustained a catastrophic brain injury would be expected to cook for himself.
33I also accept that the applicant required help to feed himself at the beginning of his stay at Toronto Rehab. However, he has not established that Toronto Rehab did not provide that help. He does not claim that no one at Toronto Rehab was available to help him eat when he was unable to do so independently. It is implausible that staff would not have helped patients who were unable to eat on their own. The applicant’s parents helped him eat when they were with him, but it does not follow that no one would have helped him in their absence. Given that they attended the hospital from 3:00 to 9:00 p.m., they could not have been relied upon to feed him meals earlier in the day.
34The “admission OT chart” and “discharge OT chart” referenced by Ms. Shafi appear to be a Toronto Rehab Occupational Therapy Admission Assessment dated June 27, 1997 and an Occupational Therapy Discharge Summary dated July 2, 1997. The charts do not purport to assess his attendant care needs for tasks he was performing at Toronto Rehab. Read in context, they assess his ability to perform the activities that were part of his regular lifestyle. For example, the entry relating to cooking in the June 27, 1997 assessment states that he would occasionally prepare snacks for himself after school. This cannot be a description of activities he performed while at Toronto Rehab because he was not attending school. Other entries in the chart are even more clear. For example, the entry for personal interests and hobbies lists camping and scouting, among other things. The charts therefore do not support Ms. Shafi’s conclusion that the applicant required ACBs for cooking during his stay at Toronto Rehab.
Supervision and assistance with walking
35The applicant has not established that ACBs for this service were reasonable and necessary.
36The applicant testified that he used a wheelchair at the beginning of his stay, then progressed to a walker and later a cane. He testified that his treatment included physiotherapy and occupational therapy, among other things.
37Ms. Shafi states that “OT and PT charts” show that the applicant required supervision to use handrails and stairs, and to walk in crowded areas. The June 27, 1997 assessment stated that he needed supervision to use the handrail when using stairs and may have needed supervision when ambulating in crowded areas. The July 2, 1997 assessment stated that he needed “min cueing” when ambulating in a crowded environment. It is unclear to me what the “PT chart” referenced by Ms. Shafi is.
38Given that the applicant was relearning how to walk at Toronto Rehab, he would have needed help using the stairs and supervision when he was walking in crowded areas. However, I was not referred to any evidence showing that he was required to climb stairs or walk through crowded areas during his stay. On cross-examination, Ms. Shafi conceded that she did not know whether he was. As noted above, the occupational therapy assessments do not describe tasks that he actually performed at Toronto Rehab, but activities that were part of his regular lifestyle. Assuming that he was required to climb stairs or walk through crowded areas, there is no evidence showing that Toronto Rehab did not provide supervision and assistance. Ms. Shafi conceded that she did not know. Given that his treatment providers would have been well aware of his impaired mobility, it is unlikely that they would have left him to perform those tasks unattended.
Basic supervisory care
39The applicant has not established that ACBs for this service were reasonable and necessary.
40Ms. Shafi opined that the applicant required supervision at Toronto Rehab for the same reason as at Sunnybrook: that he would have needed help to exit the building in an emergency, and that Toronto Rehab would not have provided that help because hospitals generally do not provide attendant care. On cross-examination, Ms. Shafi conceded that she had no first-hand knowledge of the procedures in place at Toronto Rehab in 1997.
41The analysis is largely the same as for Sunnybrook. The applicant likely would have needed help to exit the building in an emergency, but he has not established that Toronto Rehab would not have provided that help. Ms. Shafi conceded that she did not know whether it had the capacity to do so. Assuming that hospitals generally do not provide attendant care, it is a matter of speculation whether Toronto Rehab did in 1997. Even if it did not, it does not necessarily follow that staff would have been unable to help patients exit the building in an emergency.
42There is one difference between Sunnybrook and Toronto Rehab. The applicant and his sister testified that he was allowed to spend weekends at home while he was at Toronto Rehab. They did not specify how many weekends he spent at home, but it appears to have been more than one. The applicant testified that “the first weekend that [he] was home [he] never left home.” A question put to his sister stated that the applicant testified that he remembered spending “at least one, perhaps two” weekends at home, and asked if she was “there with him on those weekends,” to which she replied yes. On a balance of probabilities, I find that the applicant spent two weekends at home with his family while he was a patient at Toronto Rehab. I am unable to determine whether he spent more than two weekends at home, and if so, how many.
43I have found that the applicant likely required supervision to exit the building safely in an emergency. I also accept that he would have required supervision to use the stairs or walk in crowded areas. His mother and his sister testified that they had to watch him closely to make sure he did not fall down the stairs while at home. His mother and father even slept on the stairs to guard against that risk.
44I find that ACBs for 24-hour supervision were reasonable and necessary for the two weekends the applicant spent at home. He is therefore entitled to a total of 96 hours of basic supervisory care.
July 3, 1997 to July 2021
45The applicant returned home from Toronto Rehab on July 3, 1997. He lived with his parents until July 2, 2008. He graduated from high school in 1999, graduated from university in 2005, and started working in 2006. He moved out on July 3, 2008 and now lives with his wife and two children.
46Ms. Shafi opined that the applicant was entitled to ACBs for preparing meals, cleaning the bedroom and bathroom, and ensuring his comfort, safety, and security. He was physically able to cook for himself, but his ongoing fatigue, sleep issues, headaches, cognitive limitations, and emotional coping difficulties would not have allowed him to make proper, wholesome meals. He relied on his mother to clean his bedroom and bathroom when he lived with his parents, and was unable to perform those tasks consistently after moving out due to fatigue, decreased stamina, and headaches. He also required extensive support to cope with his impairments and his emotional distress.
The applicant’s general entitlement to ACBs
47The applicant’s acute injuries had largely healed when he returned home from Toronto Rehab, but he never fully recovered from the accident. Two ongoing attendant care needs stand out from his, his mother’s, and his sister’s testimony and his medical records.
48First, the applicant needed help to complete everyday tasks due to a combination of impaired memory and concentration, fatigue, and headaches:
The applicant and his mother testified that he had to be reminded to complete self-care tasks such as brushing his teeth, bathing, shaving, applying deodorant, caring for his skin, and changing his clothes, and to complete chores such as cleaning the bathroom, changing his sheets, and doing laundry. His mother testified that while he was in high school, he had a tendency to unexpectedly leave the house, that she and her husband continued to sleep on the stairs to make sure he did not go down them on his way to and from the bathroom, that he would forget to put toothpaste on the brush or put it on his finger, and that when she left his sheets on his bed he would start but not finish putting them on or he would mix up the steps. While his condition improved, he continued to require the same reminders while at university. He testified that at work he tends to forget tasks, deadlines, and conversations, and relies heavily on memory aids and his colleagues.
The applicant testified that he would start to feel fatigue around 2:00 p.m., and that by 3:00 or 4:00 it would “weigh on” him “very heavily.” His mother testified that she and others would help him conserve energy by doing tasks for him in the morning. Combined with recurring migraines, his fatigue limited his ability to perform household tasks. He worked with accommodations such as flexible hours, frequent breaks and half days, a cubicle in a quieter part of the office, and resting in a quiet, dark room.
The applicant testified that he did not cook for himself due to fatigue and migraines, and because he could forget to turn off the stove. His mother testified that when he was at university, he still lacked the ability to cook meals such as an omelette or a salad because he would forget steps or ingredients.
The applicant’s medical records and the respondent’s log notes from this period document that impaired memory and concentration, fatigue, and headaches were continuing issues. For example:
i. A Toronto Rehab Discharge Transfer Summary dated July 3, 1997 stated that the applicant required supervision and cueing for cooking, housekeeping, attending appointments, and other everyday tasks;
ii. Occupational Therapy/Case Management Progress Reports made in 1998 note that the applicant experienced momentary blackouts, forgetfulness, and cognitive difficulty in unstructured situations, and recommended that he use external memory aids. (According to the applicant’s testimony and a 2001 Progress Report, the blackouts did not persist);
iii. A January 22, 2003 Psychological Assessment Report identified the applicant as having diminished cognitive resources and efficiency due to fatigue, increased distractibility, and irritability;
iv. Adjusters’ log notes dated May 11, 2004 and January 25, 2006 document ongoing cognitive difficulties, fatigue, and headaches;
v. A February 16, 2006 Occupational Therapy Update Report recommended that the applicant receive benefits for a Palm Pilot and computer to compensate for his short-term memory deficit; and
vi. An October 10, 2016 log note documents that the respondent paid the applicant benefits for a new iPad. It references a report recommending the iPad and states that the applicant’s limited cognitive tolerances and ongoing social-emotional challenges and anxieties continue to make it difficult for him to perform all his daily routine tasks at his optimal capacity.
49Second, the applicant relied heavily on his family for emotional support. He had great difficulty coping with the psychological impact of the accident and the limitations imposed by his injuries. He testified that he talked with his parents and sister at length to help him process the day’s events, coach him through challenges he was facing, and provide reassurance. The applicant’s mother testified that she talks with him around five times a day to help him calm down when he is upset. These calls range from five minutes to an hour depending on how upset he is. The applicant’s sister similarly testified that he calls her frequently to vent his anxieties and frustrations, and for help with handling difficult situations. For the past several years they usually had three or four long calls per week, and many shorter calls throughout the day in the years prior. While the applicant’s mother and sister did not specifically address the time period of July 3, 1997 to July 2, 2008, they were clear that the applicant has consistently required such support since the accident. His need for emotional support is not extensively documented in his medical records, but it does appear in the adjusters’ log notes such as the October 10, 2016 note mentioned above.
50The respondent commissioned Arash Sasani, an occupational therapist, to conduct an attendant care needs assessment. He conducted the assessment at the applicant’s home on September 22, 2021. His findings were consistent with the evidence reviewed above. Specifically, he found that the applicant had difficulty completing everyday tasks due to impaired cognition and fatigue, and that he needed intensive emotional support. He made the following observations:
The applicant asked for two breaks during the one-and-a-half hour assessment due to physical and mental fatigue;
The applicant was not able to maintain his attention on the assessment, was not able to provide accurate information about his history, and required a few minutes to recall the details of his current treatment. When provided with five words to remember, he recalled two on his own and another two with cueing. When provided with five numbers to remember, he recalled three of them;
The applicant “presented with increased stress and anxiety” during the assessment;
The applicant reported that he requires several breaks during the day due to physical and mental fatigue, he does most of his daily tasks in the morning, and he requires a nap or rest during the day; and
The applicant demonstrably had difficulty completing almost all of the “instrumental activities of daily living” that Mr. Sasani tested due to fatigue and cognitive issues. Those activities included meal preparation, cleaning, laundry, grocery shopping, outdoor maintenance, pet care, and childcare.
51Mr. Sasani concluded that the applicant was entitled to attendant care because he “demonstrated difficulty with cooking and ensuring safety and comfort in the environment.” Mr. Sasani defined the latter service as supervision for those who are emotionally, cognitively, and/or physically in need of comfort, and emotional support for those who are anxious and not coping well with their injuries.
52On October 27, 2021, the respondent prospectively approved the applicant for ACBs on the basis of Mr. Sasani’s report.
53The respondent commissioned Mr. Sasani to assess the applicant’s retroactive attendant care needs. In a January 13, 2022 addendum, he wrote that he could only provide an opinion on the applicant’s attendant care needs at the time of his assessment on September 22, 2021. He therefore declined to offer an opinion on the applicant’s retroactive attendant care needs. Nevertheless, his findings are relevant to the applicant’s attendant care needs dating back to July 3, 1997. The impairments that he identified have existed since that date, as can be seen from the witnesses’ testimony and the applicant’s medical records. There is no evidence that suggests these impairments disappeared and resurfaced later, nor is there any evidence that suggests the applicant’s attendant care needs as of 2021 were the result of anything other than the 1997 accident. On cross-examination, Mr. Sasani said that the applicant would have required attendant care from 1997 onward, but he was unable to quantify the amount. He said that he did not necessarily disagree with Ms. Shafi’s quantifications, only that he could not comment on them.
54The respondent argues that the applicant did not require attendant care after being discharged from Toronto Rehab for four reasons:
The documents that specifically considered whether he required attendant care confirmed that he did not;
The medical records from the time period are inconclusive at best;
The applicant and his father deliberately chose not to apply for ACBs before 2021; and
Ms. Shafi’s assessment of attendant care needs is fatally flawed and should not be accepted.
55As a general comment, I have difficulty reconciling the respondent’s position with its decision to approve ACBs prospectively. In agreeing to pay ACBs, it accepts that attendant care has been reasonable and necessary since October 27, 2021. It does not claim that there is a reason why the applicant would have needed attendant care only as of that date and not before. There is no evidence that the applicant’s attendant care needs changed around that time or that they are the result of anything other than the 1997 accident. To the contrary, Mr. Sasani—the respondent’s expert occupational therapist—testified that he would have needed attendant care as of 1997.
56I now turn to the respondent’s four arguments.
57With respect to the first argument, I disagree that the documents cited by the respondent positively show that the applicant did not require attendant care after the accident:
Only one of the documents explicitly mentions attendant care: a Future Care Cost Assessment dated April 5, 2004 by Tanya Beatty, a registered nurse. Ms. Beatty did not conduct an assessment of attendant care needs in the manner of Ms. Shafi’s and Mr. Sasani’s assessments. The respondent commissioned her to estimate the monetary value of the applicant’s future care, including the cost of medical and rehabilitation benefits, equipment, attendant care, reintegration into family and home life, the labour market, and the community, case management, and other expenses. Ms. Beatty addressed the applicant’s need for attendant care in just one sentence: “Through review of file documentation and discussion with Mr. Schindelheim, it is my opinion that Mr. Schindelheim does not have any attendant care needs now or in the future.” This conclusory statement carries little weight. Ms. Beatty did not identify what documents she relied on and what information they contained, nor did she specify what the applicant told her. At the hearing, she testified that she had consulted with the applicant’s social worker and reviewed a neuropsychological assessment report. However, she did not explain what information she drew from those sources to arrive at her conclusion.
The respondent relies on other documents that state the applicant was independent with respect to self-care and cooking, namely notes from a June 30, 1997 patient/family conference, a Toronto Rehab discharge report dated July 2, 1997, a Social Work Initial Consultation Report dated July 20, 1997, and an Occupational Therapy Initial Assessment Report dated July 31, 1997. I place little weight on these documents. None of them specifically considered whether the applicant required attendant care to assist with cooking or other activities. The passages cited by the respondent are only one or a few sentences situated in a broader review of the applicant’s post-accident condition. They do not probe into whether and to what extent the applicant received help from his family to complete daily activities. For example, they do not attempt to distinguish between whether the applicant was physically capable of performing self-care activities and whether he needed cueing to consistently do them.
The respondent argues that two reports written by Ms. Shafi herself confirm that the applicant did not require attendant care:
a. The first report, dated July 7, 2015, is titled “BrainFx 360 Assessment Report.” The purpose of the report was to develop a profile of the applicant’s cognitive skills in various domains. In the passage cited by the respondent, the applicant completed a table asking him to rate his level of satisfaction with his participation in various activities in the past week. He stated that he was “very satisfied” with respect to “personal care & hygiene” and “housework.” I place no weight on these entries. They are so brief and acontextual that they shed no light on the applicant’s need for attendant care.
b. The second report, dated September 16, 2015, is titled “Occupational Therapy Assessment Report.” The respondent commissioned Ms. Shafi to conduct an insurer’s examination of the applicant’s occupational therapy needs after he submitted a treatment plan for an occupational therapy assessment and treatment for cognitive issues. In the 2015 report, Ms. Shafi wrote that the applicant was fully independent with respect to his self-care and personal care needs. She wrote further that he was able to contribute to his share of housekeeping tasks, although his cognitive impairments limited his ability to do so in an efficient and organized manner. Those impairments included difficulties with organization, time management, prioritizing tasks, memory, working under time pressure, focusing for prolonged periods of time, and processing information in a timely manner when attempting to multitask. Ms. Shafi also noted that the applicant continued to struggle with headaches, fatigue, anxiety, and stress. The 2015 report carries some weight as Ms. Shafi considered the impact of the applicant’s cognitive impairments on his ability to perform everyday tasks. However, this weight is limited for the following reasons:
(1) Ms. Shafi observed and documented the impairments that are the basis of the applicant’s attendant care needs;
(2) Ms. Shafi was not asked to assess whether the applicant required attendant care, prospectively or retroactively. There is no indication in her report that she turned her mind to that question; and
(3) Ms. Shafi did not review the applicant’s medical records as part of the occupational therapy assessment. Her assessment was based on a clinical interview, a functional assessment of his physical abilities, and the BrainFx assessment. In contrast, she reviewed the applicant’s medical records for her 2021 retroactive attendant care needs assessment. On cross-examination, she said that she also considered her 2015 report but did not rely on it based on what she saw in the applicant’s medical records. She was entitled to change her opinion after having reviewed those records, which contained much more information than what was available to her in 2015.
The respondent argues that Ms. Shafi’s notes show that she continued to provide occupational therapy to the applicant after 2015, that they make no reference to attendant care-related needs before 2021, that her services tailed off in 2017, and that she had almost no contact with him over the following three years. The notes do not clearly show that Ms. Shafi provided occupational therapy to the applicant. They mainly appear to coordinate the payment of benefits for assistive devices and other expenses. The closest thing to occupational therapy is found in notes summarizing conversations Ms. Shafi had with the applicant about how well certain assistive devices had been working.
Finally, the respondent argues that notwithstanding his injuries, the applicant has led a normal life in many respects. He completed high school and university, has a career, obtained a driver’s licence, is physically active, is trilingual, and is married with children. That may be, but it does not establish that he has no need for attendant care. He does not claim to be totally incapacitated in every sphere of life, but seeks benefits for two specific categories of attendant care. While he has reached many milestones that are part of a normal life, he has struggled to do so and continues to struggle. The respondent accepts that he is entitled to prospective ACBs notwithstanding those accomplishments.
58The respondent’s second argument is that the applicant’s medical records are inconclusive at best because they do not connect his impairments with his need for attendant care and were not intended for that purpose. The authors of the records did not make those connections themselves, but that does not mean the connections do not exist. The records document the applicant’s continuing impairments after the accident. Taking them together with the witnesses’ testimony and the expert opinions of Ms. Shafi and Mr. Sasani, I find that on a balance of probabilities those impairments do connect with the attendant care services in dispute.
59The respondent’s third argument is that the applicant and his father knew what ACBs were from the beginning, but deliberately chose not to apply for them. I address this argument below in my reasons on the applicant’s claim for an award. At this point, I say only that I do not accept it.
60The respondent’s fourth argument is that there are fatal flaws in Ms. Shafi’s retroactive attendant care needs assessment, namely:
Ms. Shafi omits to refer to the documents indicating that the applicant did not require attendant care—namely her 2015 report and Ms. Beatty’s report—and inaccurately summarized others such as the July 20, 1997 Social Work Initial Consultation Report and the July 31, 1997 Occupational Therapy Initial Report;
Ms. Shafi admitted on cross-examination that she made errors in her report regarding the applicant’s attendant care needs at Sunnybrook and Toronto Rehab; and
On cross-examination, the applicant agreed that the report was incorrect when it said he was independent with respect to shaving while at Toronto Rehab, and that it was overly broad when it said he was independent with respect to dressing and undressing from July 3, 1997 to July 2, 2008.
61I find that these shortcomings do not meaningfully reduce the weight to be placed on Ms. Shafi’s report:
I have found that the documents cited by the respondent do not positively show that the applicant had no need of attendant care. Omitting to mention those documents or summarizing them inaccurately did not meaningfully weaken Ms. Shafi’s conclusions. As discussed above, she considered her 2015 report but changed her view of the applicant’s abilities after reviewing his medical records;
Any errors with respect to the applicant’s attendant care needs at Sunnybrook and Toronto Rehab are immaterial to Ms. Shafi’s assessment of his attendant care needs after being discharged; and
The errors regarding the applicant’s ability to shave and dress are not fatal. Correcting those errors only strengthens Ms. Shafi’s conclusion that he required attendant care.
62I conclude that, on a balance of probabilities, the applicant was entitled to attendant care services on and after July 3, 1997 for his impaired ability to complete everyday tasks and his need for emotional support.
The applicant’s entitlement to the specific ACBs in dispute
63Ms. Shafi and Mr. Sasani opined that the applicant was entitled to the following attendant care services in the following amounts:
Shafi
Sasani
July 3, 1997 to July 2, 2008
July 3, 2008 ongoing
Preparing, serving, and feeding meals
90 minutes per day
60 minutes per day
60 minutes per day
Cleaning the bathroom
10 minutes per week
10 minutes per week
N/A
Cleaning the bedroom
10 minutes per week
10 minutes per week
N/A
Ensuring the applicant’s comfort, safety, and security
180 minutes per day
120 minutes per day
120 minutes per day
64Ms. Shafi’s post-July 3, 2008 assessment and Mr. Sasani’s assessment are almost identical. They agree that the applicant required 60 minutes of attendant care per day for preparing, serving, and feeding meals, and 120 minutes of attendant care per day for ensuring his comfort, safety, and security. I therefore find that he was entitled to ACBs in those amounts from July 3, 2008 to July 2021. I find further that he was entitled to 20 minutes of attendant care per week to clean the bathroom and bedroom. His and his mother’s testimony establish that his impaired memory and concentration, fatigue, and headaches interfered with his ability to complete those tasks. Mr. Sasani observed that the applicant demonstrated difficulty cleaning the bathroom independently due to increased fatigue and cognitive issues. He concluded that the applicant demonstrated an adequate range of motion and “functional abilities” to make and change his bed independently. However, Mr. Sasani observed that the applicant was impaired in his general ability to complete cleaning and other household tasks.
65I find that for the period of July 3, 1997 to July 2, 2008, the applicant was entitled to the attendant care services recommended by Ms. Shafi: 90 minutes per day for preparing, serving, and feeding meals, 180 minutes per day for ensuring his comfort, safety, and security, and 20 minutes per week for cleaning the bathroom and bedroom. These are the same categories of attendant care as in Ms. Shafi’s post-July 3, 2008 assessment and almost the same as those in Mr. Sasani’s assessment. I accept that the applicant would have required more help with meals and more emotional support than during the post-July 3, 2008 period because he was younger and less experienced at living with his impairments.
Issue Two: What is the quantum of the applicant’s entitlement to ACBs?
66I have found that the applicant is entitled to ACBs as follows:
Time Period
ACB
May 31 to July 2, 1997
A total of 96 hours for basic supervisory care
July 3, 1997 to July 2, 2008
90 minutes per day for preparing, serving, and feeding meals
10 minutes per week for cleaning the bathroom
10 minutes per week for cleaning the bedroom
180 minutes per day for ensuring the applicant’s comfort, safety, and security
July 3, 2008 to July 2021
60 minutes per day for preparing, serving, and feeding meals
10 minutes per week for cleaning the bathroom
10 minutes per week for cleaning the bedroom
120 minutes per day for ensuring the applicant’s comfort, safety, and security
67Section 16(4) of the 1996 Schedule provides that the amount payable by the attendant care benefit shall be determined in accordance with Form 1. Section 70.1 of the 1996 Schedule provides that Form 1, as it read on September 30, 2003, continues to apply in respect of accidents occurring before October 1, 2003. Under that version of Form 1, the hourly rates for Level One and Level Two attendant care are $10.53 and $7.00, respectively. Level One attendant care includes preparing, serving, and feeding meals. Level Two attendant care includes cleaning the bathroom, cleaning the bedroom, ensuring the applicant’s comfort, safety, and security, and basic supervisory care. Applying the formula in Form 1, the quanta of the applicant’s entitlement to ACBs are as follows:
Time Period
ACB
May 31 to July 2, 1997
$2,889.60
July 3, 1997 to July 2, 2008
$1,117.56 per month
July 3, 2008 to July 2021
$748.39 per month
68Ms. Shafi calculated the amount of the ACB as $2,017.21 per month from July 3, 1997 to July 2, 2008 and $1,311.36 per month from July 3, 2008 ongoing. I do not accept her calculations because she did not use the hourly rates in Form 1 as it read on September 30, 2003. She appears to have used the hourly rates for accidents on or after January 1, 2018 under Superintendent’s Guideline No. 03/17: Attendant Care Hourly Rate Guideline or for accidents on or after April 14, 2018 under Superintendent’s Guideline No. 01/18: Attendant Care Hourly Rate Guideline. Those hourly rates do not apply to the applicant’s ACBs because his accident occurred before October 1, 2003.
69For his part, Mr. Sasani appears to have used the hourly rates for accidents on or after September 1, 2010 under Superintendent’s Guideline No. 03/10: Attendant Care Hourly Rate Guideline. Those are also not the hourly rates that apply.
Issue Three: At what point in time does interest accrue?
70I find that interest began to accrue on July 20, 2021.
71The applicant’s entitlement to interest is governed by s. 51 of the current version of the 2010 Schedule: 2010 Schedule, s. 2(2); 1996 Schedule, s. 3(1.2). Section 51(1) provides that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under the 2010 Schedule. In that case, s. 51(2) provides that the insurer shall pay interest on the overdue amount in accordance with s. 51 for each day the amount is overdue.
72Section 42(6) of the 2010 Schedule governs when an amount payable for ACBs becomes overdue. It provides that an insurer shall begin payment of ACBs within 10 business days after receiving an assessment of attendant care needs (i.e. a Form 1) from an insured person.
73Section 42 of the 2010 Schedule is in Part VIII and s. 51 is in Part IX. Section 2(2) of the 2010 Schedule provides that those Parts (excluding subsections 50(2) to (5)) apply with such modifications as are necessary in respect of benefits provided under the 1996 Schedule with respect to accidents that occurred on or after November 1, 1996 and before September 1, 2010. The corresponding provisions of the 1996 Schedule—ss. 39 and s. 46, respectively—are in Part X. Section 3(1.2) of the 1996 Schedule provides that Part X does not apply after August 31, 2010.
74In this case, the applicant submitted Form 1s to the respondent on July 5, 2021. The respondent was required to pay the ACBs by July 19, 2021—10 business days later. Interest therefore began to accrue on July 20, 2021, the next day.
75In Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585 (Div Ct), the Divisional Court held that payment of retroactive ACBs is due 10 business days after the insured person applies for them, and that interest begins to accrue after that date. The insured person was injured in an accident in 2001. She applied for and received ACBs. In 2009, she applied for retroactive ACBs from 2001 to 2003 in a higher amount than what she had received. She was found to be entitled to additional ACBs for part of that period. At issue was the date when interest began to accrue. Applying ss. 39(4) and 46 of the 1996 Schedule, the Court held that because the insurer was required to pay ACBs within 10 business days after receiving an assessment of attendant care needs, payment was not overdue until after that 10-day period elapsed: para 18. Payment for the retroactive ACBs was therefore not overdue until 2009, and interest began to accrue at that time: paras 7, 25, 27. The date when interest began to accrue was tied to date when the insured person applied for retroactive ACBs, not the period during which she was entitled to those ACBs.
76As a decision of the Divisional Court, Grigoroff is binding on the Tribunal. Applied to the facts of this case, it entails that the applicant’s retroactive ACBs were due on July 19, 2021, and that interest began to accrue after that date.
77The applicant argues that Grigoroff is distinguishable because the insurer informed the insured person at the outset that she was entitled to ACBs, she applied for and received them, and later applied for retroactive ACBs in a higher amount. I do not accept that submission. The Court’s analysis was based on its reading of s. 39(4) of the 1996 Schedule, which is the substantively the same as s. 42(6) of the 2010 Schedule. The Court’s analysis was not contingent on the facts highlighted by the applicant.
78The applicant relies on Bradley Michael Mulhall v The Wawanesa Mutual Insurance Company, 2015 ONSC 7495, in which a judge of the Ontario Superior Court of Justice declined to follow Grigoroff and applied a different test. The issue before the Court was essentially the same. The insured person was injured in an accident in 2001. In 2015, he applied for retroactive ACBs for the period of 2001 to 2006. He brought a pre-trial motion asking the Court to decide when interest would begin to accrue: para 11.
79The Court held that Grigoroff was distinguishable because it applied the 1996 Schedule in force after a 2005 amendment: O Reg 546/05, s. 17. Section 39 of that version of the 1996 Schedule provided that an application for ACBs must be in the form of a Form 1: Mulhall at paras 17-18, 29. The Court held that in Mulhall the 2001 version of the 1996 Schedule applied because it was the version in force on the date of the accident: paras 18, 29. Section 39 of that version of the 1996 Schedule did not require that an application for ACBs be in the form of a Form 1: paras 30-31. The Court also faulted Grigoroff for not considering the consumer protection purpose of insurance law and the issue of when an insurer has sufficient information to properly adjust an insured person’s claim for ACBs: para 18.
80Having distinguished Grigoroff, the Court engaged in a review of the case law and extracted from it the principle that, in one formulation, “interest accrues from the date the insurer has sufficient information such that it is, or ought to be, aware that the benefit should be considered,” and in another, “interest should begin accruing from the date that the insurer was, or should have been aware the benefits were owed, regardless of the amount and the retroactive date assigned”: paras 21, 35. It held that “interest in this case should begin to accrue from the date that the insurer had sufficient information to be able to assess whether the benefit should have been paid regardless of whether or not the plaintiff or his parents specifically applied for attendant care expenses”: para 37.
81I must decide whether to follow Grigoroff or Mulhall. I follow Grigoroff for the following reasons:
a. Grigoroff’s analysis is rooted in the predecessor to s. 42(6) of the 2010 Schedule, which provides that ACBs are payable 10 days after an insured person applies for them. Mulhall’s analysis is not rooted in that provision, but a principle extracted from the Court’s review of the case law;
b. In Mulhall, the Court held that the 2001 version of the 1996 Schedule applied because it was the version in force on the date of the accident. That holding is no longer good law. Morrissey establishes that the applicable version of s. 39 of the 1996 Schedule or s. 42 of the 2010 Schedule depends on when the application for retroactive ACBs was submitted, not the date of the accident. In Morrissey, the accident occurred in 2000 and the insured person applied for retroactive ACBs in 2018. The Court held that s. 42 of the 2010 Schedule applied, and that it required the application for ACBs to be in the form of a Form 1: Morrissey at paras 47, 51, 69-71. It grounded its analysis in the transitional provisions of the 1996 and 2010 Schedules reviewed above. There is no indication in Mulhall that the Court was referred to those provisions; and
c. Mulhall’s main reason for distinguishing Grigoroff consequently no longer stands. Morrissey establishes that in Mulhall, s. 42 of the 2010 Schedule applied because the insured person applied for ACBs in 2015. As that provision requires that an attendant care needs assessment be in the form of a Form 1, it is substantively the same as the provision applied in Grigoroff.
82The applicant cites Van Galder v Economical Mutual Insurance Company, 2016 ONCA 804 for the proposition that “[t]he legislative intent of the requirement that insurers pay interest on overdue amounts owed to insured persons is to compensate insured persons for the loss of the time value of money and to encourage insurers to pay accident benefits promptly”: para 92. I accept that statement of principle, but it does not alter the date when payment of retroactive ACBs is due under s. 42 of the 2010 Schedule. Van Galder did not involve a retroactive ACB claim made under that provision or its predecessors. The insurer was required to pay ACBs and other benefits under s. 45(6) of the 2010 Schedule. Section 45(6) provides that if an insured person is determined to have sustained a catastrophic impairment as a result of an accident, they are entitled to payment of all expenses incurred before the date of the determination and to which they would otherwise be entitled to payment under the Schedule by virtue of having sustained a catastrophic impairment. Unlike s. 42, s. 45(6) does not require the insured person to apply for the benefits, and consequently does not provide that payments are due a certain number of days after the application is submitted.
83The applicant also relies on Van Galder for the proposition that “[t]he nature of many catastrophic impairments may necessarily render a catastrophically impaired insured person incapable of navigating and completing the complicated and detailed application process for a catastrophic impairment determination”: para 96. That may be true, but again it does not alter the due date for payment of retroactive ACBs under s. 42 of the 2010 Schedule. In Van Galder, the insurer argued that insurers should not be required to pay interest on benefits payable under s. 45(6) of the 2010 Schedule because it would incentivize insured persons to delay in applying for catastrophic impairment determinations. The Court rejected that argument in the passage cited by the applicant. The statement quoted above does not concern applications for retroactive ACBs under s. 42 of the 2010 Schedule. Furthermore, in this case there was no delay in determining that the applicant had sustained a catastrophic impairment.
84I conclude that the applicant’s retroactive ACBs were payable on July 19, 2021, and that interest therefore began to accrue on July 20, 2021.
Issue Four: Is the applicant entitled to an award under s. 10 of Regulation 664?
85Section 10 of Regulation 664 provides that the Tribunal may make an award if it finds that an insurer has unreasonably withheld or delayed payments.
86The applicant argues that s. 282(10) of the Insurance Act, RSO 1990 c I.8 is the source of the Tribunal’s jurisdiction to make an award, presumably because it was the provision in force at the time of the accident. I disagree because s. 282(10) empowers “an arbitrator”—not the Tribunal—to make an award, and it is no longer in force. Regardless, the test under s. 282(10) and s. 10 of Regulation 664 is substantively the same.
87Unreasonable behaviour in withholding or delaying payments can be seen as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”: Wayne Allan Plowright v Wellington Insurance Company, 1993 ONICDRG 66.
The applicant is entitled to an award
88The applicant submits that he did not apply for ACBs before 2021 because he did not know what they were or that he could apply for them. He argues that his need for ACBs was evident to the respondent from the beginning, but it did not inform him how to claim them. While it provided him benefits for other services and required him to undergo various assessments, it never inquired into his potential need for ACBs, and did not commission an attendant care needs assessment until he applied for them.
89The respondent submits that it acted reasonably. It determined that he sustained a catastrophic impairment, provided him an accident benefits package and a copy of the Schedule, and responded to him promptly and consistently in adjusting his benefits. It commissioned Ms. Beatty’s future cost of care assessment in 2004, Ms. Shafi’s occupational therapy assessment in 2015, and Mr. Sasani’s attendant care needs assessment in 2021. It argues that the applicant was not entitled to ACBs before 2021. It argues further that the applicant, his father, and a lawyer he retained shortly after the accident knew what ACBs were from the beginning, and that he and his father deliberately chose not to apply for them.
The evidence
90The evidence is sparse regarding what information the respondent provided to the applicant about his entitlement to ACBs shortly after the accident. Twenty eight years have since passed. The applicant was sixteen years old and recovering from a catastrophic brain injury. His father was responsible for handling his insurance claim at that time. We do not have the benefit of his father’s testimony because he is deceased. The adjusters who handled the claim at the time did not testify. I am left to reconstruct what happened from the adjusters’ log notes and a few documents from May 1997.
91The log notes made during the applicant’s stay at Sunnybrook indicate that the respondent provided an accident benefits package to his father, who completed it, and that adjusters “explained AB benefits to the family” verbally on two occasions and provided them with a copy of the Schedule on the second. The log notes make no mention of ACBs. In contrast, they show that the adjusters were attuned to the applicant’s entitlement to both an income replacement benefit and a non-earner benefit.
92The cover letter to the accident benefits application package appears to be a form letter. It opens with the salutation “DEAR APPLICANT” and does not contain any information specific to Mr. Schindelheim. After explaining what income replacement, non-earner, and caregiver benefits are, it lists the other benefits available under the Schedule as follows:
You may also be entitled to one or more of the following benefits:
Medical, Rehabilitation and Attendant Care Benefits,
Payment of Other Expenses,
Death and Funeral Benefits[,]
Optional Benefits
93The letter says nothing more about ACBs. It advises the recipient to discuss their particular circumstances with their claims specialist if they are not sure an expense or loss may be reimbursed under the policy.
94In a May 29, 1997 letter to the applicant’s father, the respondent confirmed receipt of the Application for Accident Benefits (OCF-1) he submitted, enclosed certain forms, and provided information on subjects that are not relevant here. It wrote that based on the OCF-1, the applicant was entitled to both an income replacement benefit and a non-earner benefit. It requested that he elect between those benefits by August 2, 1997 using one of the forms it had enclosed. The letter does not discuss whether the applicant may be entitled to other benefits, including ACBs. The only reference to attendant care is nested in the following sentence:
It may become necessary to assign a Rehabilitation Case Manager/Occupational Therapist/ Certified Kinesiologist to your case in order to coordinate the medical, rehabilitation and attendant care services or perform a physical demands analysis of your essential duties.
95I have not been referred to any evidence showing that the respondent provided the applicant with any further information regarding his entitlement to ACBs over the 24 years between 1997 and 2021.
Analysis
96On a balance of probabilities, I find that the respondent did not provide the applicant adequate information shortly after the accident to understand what ACBs were and that he may be entitled to them. Because he did not have that information, he did not apply for ACBs until 24 years after the accident. As a result of this omission, the respondent unreasonably withheld ACBs until 2021. In the language of Plowright, its conduct was “imprudent.”
97Given the magnitude of the applicant’s injuries, it ought to have been clear immediately after the accident that he very well may need attendant care after he was discharged from the hospital. It would have been even more clear that he would need attendant care on the weekends he spent at home during his stay at Toronto Rehab.
98Section 32(2)(b) of the 1996 Schedule informs what constituted reasonable or prudent conduct. It provides that after receiving the OCF-1 on May 20, 1997, the respondent was required to provide the applicant with a written explanation of the benefits available under the Schedule. In my view, the respondent did not meet this requirement:
The only written explanation of the benefits available under the Schedule was the form letter attached to the accident benefits package. This letter did not meaningfully inform the applicant’s father that ACBs were available to him. It only includes ACBs in a list of benefits generally available under the Schedule and does not explain what ACBs are. It is not self-evident to a layperson what the term “attendant care” means. The suggestion to “discuss your particular circumstances with your claims specialist” could not have alerted the applicant’s father to the fact that he might be entitled to benefits for attendant care, particularly given that there were no expenses to reimburse for services provided by family members.
Providing a copy of the Schedule to the applicant’s family did nothing to help them understand that ACBs were available to the applicant. The Schedule is notoriously complex and inaccessible to laypersons.
99I now turn to the respondent’s argument that the applicant, his father, and a lawyer he retained shortly after the accident knew what ACBs were, and that he and his father deliberately chose not to apply for them.
100First, the evidence cited by the respondent consists of the application package and form letter, the May 29, 1997 letter, and the log notes stating that the adjusters explained accident benefits to the applicant’s family and provided them with a copy of the Schedule. I have reviewed this evidence and found that the respondent did not adequately inform the applicant’s father what ACBs were and that he may be entitled to them. I therefore do not infer that the applicant and his father made a deliberate choice not to apply for ACBs.
101The respondent also argues that an Application for Expenses (OCF-6) submitted by the applicant’s father includes a “specific reference to attendant care expenses.” The expenses listed in the OCF-6 are parking at Queen Elizabeth Hospital (the site of Toronto Rehab), taxi fare to and from the Hospital, “FOOD (MEALS) RE_ Q.E. Hospital stay,” and mileage to and from the Hospital. The respondent presumably argues that the food was an attendant care expense. I disagree. The applicant’s father did not provide meals for him while he was a patient at Toronto Rehab. I infer that the OCF-6 was for food that the applicant’s father bought for himself on his visits. It does not show that he understood what ACBs were, much less that he considered the applicant not to need them.
102Second, the respondent argues that the applicant retained counsel shortly after the accident, that his counsel knew or ought to have known what ACBs were and would have told him, and that he therefore made an informed decision not to apply for them. The only evidence cited by the respondent is a single log note. The log note is undated, but the next log note refers to an invoice for the month of May 1999. The log note cited by the respondent states that the adjuster called a lawyer regarding a “VOC INTERVENTION,” that the lawyer requested to speak with the adjuster “AS HE IS AFRAID THAT IT IS A TRANSFERABLE SKILLS ASSESSMENT AND WILL NOT AGREE TO PLACEMENT OF MICHAEL TO ANY OCCUPATION,” that the adjuster planned to speak with the lawyer to provide an explanation, and that the adjuster called the lawyer and left a message. I have not been referred to any other evidence regarding the lawyer’s involvement with the applicant. On its own, the log note falls far short of proving that the applicant received legal advice regarding his entitlement to ACBs.
103Third, the respondent argues that on cross-examination it took the applicant through the documents that—in its submission—positively show he did not require attendant care. He generally considered the documents not to accurately reflect his condition, said that he was “surprised” by what some said, and could not explain why they did. The respondent argues that this rebuts his claim that he did not come across the term “attendant care” before 2021. I disagree. Other than Ms. Beatty’s report, none of the documents explicitly refers to attendant care. On cross-examination, the applicant said he remembered having conversations with Ms. Beatty but did not recall “what was discussed, if anything, related to attendant care.”
104The applicant also argues that it was apparent to the respondent throughout the 24 years between 1997 and 2021 that he needed attendant care, and that the respondent unreasonably withheld ACBs by omitting to obtain an attendant care needs assessment. I do not accept that submission. A person who sustained a catastrophic impairment does not necessarily require attendant care. The respondent was certainly aware that he had continuing impairments from the accident. However, those impairments did not so clearly imply the need for attendant care that it was unreasonable of the respondent not to commission an attendant care needs assessment on its own initiative. I have found that he was entitled to ACBs after considering information not available to the respondent during that 24-year period, including his treatment providers’ records, the testimony of the witnesses, and Ms. Shafi’s and Mr. Sasani’s assessments.
105I conclude that the applicant is entitled to an award.
Amount of the award
106I find that the appropriate amount for the award is $42,000.
107Section 10 of Regulation 664 provides that the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
108Both parties rely on Liberty Mutual Insurance Company v Molly R. Persofsky, 2003 ONFSCDRS 9, a decision of the Ontario Financial Services Commission that the Tribunal adopted in 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT). Persofsky sets out a method for calculating the amount of an award, which I summarize for the purposes of this case as follows:
Determine the benefits owing to the insured person, including interest calculated under the applicable version of the Schedule;
Determine the maximum award using the following formula: maximum award = 50% x (benefits that were unreasonably withheld + interest on these benefits calculated under the Schedule + compound interest calculated according to s. 10 of Regulation 664);
Consider all relevant factors to determine an appropriate lump sum that responds to the facts of the case and bears a reasonable relationship to other awards, and does not exceed the maximum; and
Express the award as a specific lump sum amount.
1. The benefits owing to the applicant, including interest
109I have found that the applicant is entitled to ACBs as follows:
Time Period
ACB
May 31 to July 2, 1997
$2,889.60
July 3, 1997 to July 2, 2008
$1,117.56 per month
July 3, 2008 to July 2021
$748.39 per month
110The period of July 3, 1997 to July 2, 2008 is 132 months. Multiplied by the monthly amount of $1,117.56 per month, the total is $147,517.92.
111The issue stated in the Divisional Court’s order does not specify the date in July 2021 up to which ACBs must be calculated. I take it to be July 5, 2021—the date when the applicant applied for ACBs. The period of July 3, 2008 to July 5, 2021 is 156.07 months. Multiplied by the monthly amount of $748.39 per month, the total is $116,801.23.
112The total amount of benefits owing to the applicant is therefore $267,208.75 excluding interest.
113Section 51 of the current version of the 2010 Schedule governs the applicant’s entitlement to interest: 2010 Schedule, s. 2(2); 1996 Schedule, s. 3(1.2). Section 51(1) provides that interest is payable at the rate of 1% per month, compounded monthly, from the date on which the amount becomes overdue until the date on which interest becomes payable under s. 51(4). Interest on the benefits owing began to accrue on July 20, 2021 and became payable under s. 51(4) on March 18, 2022—the filing date of the application. That period is 7.95 months. The total amount of benefits plus interest up to March 18, 2022 is therefore $289,204.86.
114Section 51(4) of the 2010 Schedule provides that interest is calculated at the prejudgment interest rate described in s. 128(3) of the Courts of Justice Act, RSO 1990, c C.43 that is used for past pecuniary loss, and is payable for the period that begins on the date on which an application to the Tribunal is brought and ends on the date a decision is issued that finally disposes of the dispute. The prejudgment interest rate on March 18, 2022 was 0.5%. The method for calculating prejudgment interest is to multiply $289,204.86 by 0.5%, divide the result by 365, then multiply it by the number of days until July 4, 2025—the release date of this decision (i.e. 1,204 days). That amount comes to $4,769.90.
115I conclude that the benefits owing to the applicant and interest under s. 51 of the 2010 Schedule total $293,974.76.
2. The maximum award
116Interest under s. 10 of Regulation 664 is calculated at the rate of 2% per month, compounded monthly, from the time the benefits first became payable under the Schedule to the time of the award. The period from July 20, 2021 to July 4, 2025 is 47.49 months. The total of the benefits owing, interest under s. 51 of the Schedule, and interest under s. 10 of Regulation 664 is therefore $752,891.17. 50% of that amount is $376,445.59.
3. Factors relevant to the amount of the lump sum
117Persofsky states that the principles governing the size of an award are rationality and proportionality. Rationality refers to the need to relate the particular facts of the case to the underlying purposes of the legislation. It calls for an amount that is large enough to further the goals of punishment and deterrence, but no larger. Proportionality refers to the need to ensure that the consequences imposed on the insurer are rationally related to the misconduct at issue. Factors relevant to proportionality include:
The blameworthiness of the insurer's conduct;
The vulnerability of the insured person;
The harm or potential harm directed at the insured person;
The need for deterrence;
The advantage wrongfully gained by the insurer from the misconduct;
Any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct;
The amount of the benefits unreasonably withheld or delayed;
The time the benefit is withheld or delayed;
Failing to respect important obligations under the Schedule;
Other factors that increase the gravity of the insurer’s conduct;
Mitigating factors; and
Other penalties.
118I find that the following factors are relevant to the amount of the award:
The blameworthiness of the respondent’s conduct is relatively low. It agreed to pay ACBs when the applicant applied for them in 2021. There is no indication that it unreasonably withheld or delayed payment of benefits other than ACBs. The log notes and medical records show that it paid the applicant a variety of benefits and monitored his progress over the 24 years following the accident. It is implausible that the respondent would diligently pay those benefits while deliberately concealing his entitlement to ACBs. On a balance of probabilities, I find that its failure to provide him adequate information was an oversight, not a wilful act of deception. While it was imprudent, it was not excessive, stubborn, inflexible, unyielding, or immoderate in the language of Plowright. A lower level of blameworthiness weighs in favour of a lower award to deter such conduct;
The applicant is a vulnerable person. He sustained a catastrophic impairment when he was 16 years old and is still coping with his injuries;
The applicant submits that his family provided the attendant care services in question. The harm he suffered was not being paid benefits for those services. This was a financial harm rather than a harm to his health caused by a lack of access to attendant care;
The advantage wrongfully gained by the respondent was the money saved by not paying ACBs, including the time value of money that ought to have been paid over a 24-year period. By operation of s. 42(6) of the 2010 Schedule, the respondent is only liable for interest that accrued after that period. That weighs in favour of an increased award to ensure that delayed payment of ACBs is appropriately deterred in cases such as this;
I am not aware of any penalties or sanctions that have been or may be imposed on the respondent;
The amount of the unreasonably withheld benefits is significant;
The benefits were withheld over a lengthy period. Persofsky cautions that this is an important factor, but it must be considered carefully given that the double-interest component of the calculation causes the size of an award to increase quickly over time. In its words, the Tribunal “should take a hard look at the period over which the delay was unreasonable.” Taking a “hard look,” I find that there are two relevant considerations:
a. In 2004, the respondent commissioned Ms. Beatty to assess the future cost of the applicant’s care, including attendant care. I have not accepted her conclusion that the applicant did not require attendant care. However, the respondent was entitled to rely on her judgment. That diminishes the unreasonableness of its conduct from 2004 to 2021; and
b. The Tribunal’s original decisions on this application were released on September 15, 2023 and December 22, 2023. More than 18 months have passed since the latter date, causing the amount of interest under s. 10 of Regulation 664 to increase significantly. It was necessary to rehear the application because of the timing of the Court of Appeal’s decision in Morrissey, which was outside the respondent’s control. Basing the amount of the award on that increased length of time would not be rationally related to the misconduct at issue in this case and would not deter such misconduct in the future.
I have found that the respondent did not comply with its obligation under s. 32(2)(b) of the 1996 Schedule to provide the applicant with a written explanation of the benefits available to him. This was an important obligation because meeting it was necessary for him to know that he was entitled to ACBs; and
I have already considered other factors that increase the gravity of the insurer’s conduct, mitigating factors, and the existence of other penalties.
119Persofsky states that the amount of the award should bear a reasonable relationship to other awards. I have not been referred to any decisions in which an award was made in circumstances comparable to these. The applicant relies on T.N. v Personal Insurance Company of Canada, 2014 ONFSCDRS 177 and 17-006757. I find that neither of these cases is instructive. While a few of the same Persofsky factors apply, such as the vulnerability of the insured person, the facts are too different to shed light on the appropriate amount of the award in this case. In particular, the Arbitrator and the Tribunal, respectively, attributed a much higher level of blameworthiness to the insurer’s conduct than I have.
4. Amount of the lump sum
120Having weighed the above factors, and having considered the principles of rationality and proportionality, I conclude that the appropriate amount of the award is $42,000.
Conclusion
121I find that the applicant is entitled to $293,974.76 for ACBs from May 1997 to July 2021, including interest, and an award under s. 10 of Regulation 664 in the amount of $42,000. The applicant is therefore entitled to a total amount of $335,974.576.
ORDER
122The applicant is entitled to $335,974.576 for ACBs from May 1997 to July 2021, interest, and an award under s. 10 of Regulation 664.
Released: July 4, 2025
__________________________
Christopher Evans
Adjudicator