RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 22-002621/AABS
Case Name: Harry Pittman v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Peter Galway, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
OVERVIEW
1On February 5, 2025, the applicant requested reconsideration of the Tribunal’s decision released January 15, 2025 (the “decision”).
2Stemming from an automobile accident on January 17, 2020 and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the Tribunal found the applicant was not entitled to any of the disputed benefits, i.e., attendant care benefits (“ACB”), eleven treatment plans, an award, and interest.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant relies on Rule 18.2(a) and Rule 18.2(b) in his request for reconsideration. He is seeking an order to cancel the decision and have it “reheard in writing by a different Adjudicator”.
5The respondent opposes the request for reconsideration.
RESULT
6The applicant’s request for reconsideration is granted pursuant to Rule 18.2.
7Pursuant to Rule 18.4, the decision is cancelled.
8I have reheard the matter based on the parties’ submissions and evidence from the written hearing.
9The applicant is entitled to attendant care benefits in the amount of $2,257.09 per month from January 17, 2020 ongoing, pending proof of incurred expenses. The applicant is not entitled to the disputed treatment plans. There is no interest or award owing.
RECONSIDERATION REQUEST
Rule 18.2(a) – Material Breach of Procedural Fairness
10The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
11The applicant’s main argument is that the Tribunal committed a material breach of procedural fairness by not reviewing pages 16 – 19 of his initial submissions. As such, the applicant claims the Tribunal did not review key evidence for his case. The applicant also argues that the respondent’s reasons for its denials were inadequate, and the respondent’s late-served surveillance evidence meant he had to spend some of his allotted pages addressing this evidence. Finally, the applicant submits that his claim for interest was not properly analyzed in the decision.
12I find the applicant has established a material breach of procedural fairness, pursuant to Rule 18.2(a).
13At paragraphs 7 – 9 of the decision, the adjudicator ordered that pages 16 – 19 of the applicant’s initial submissions would not be considered [emphasis added]:
In its submissions, the respondent raised a procedural issue regarding written submission page length limits. The Tribunal ordered written submissions to a maximum of 15 pages following the case conference on February 18, 2023. The respondent submits that the applicant’s written submissions are 19 pages which violates the Order.
The respondent further submits the respondent is prejudiced by the applicant’s failure to comply and requests that the Tribunal not consider any written submissions of the applicant past page 15 (paragraph 86).
I agree with the respondent that page limits ordered by the Tribunal should not be exceeded to avoid prejudicial circumstances to either party. Therefore, I will not be considering submissions from the applicant beyond the set page limit of 15 pages.
14As evidenced by the highlighted part of the quotation, there is no indication of how this analysis applies to the case at hand. Specifically, the adjudicator does not show how the respondent was prejudiced by the applicant’s breach, nor is there any reference to how the applicant would be prejudiced by disregarding four pages’ worth of his submissions. I am satisfied that there was an insufficient analysis and weighing of these key determinations, and that the absence of this analysis constitutes a material breach of procedural fairness.
15The respondent argues that the applicant has not made out any criteria for reconsideration, but I find its submissions are not compelling. First, the respondent argues that the applicant did not avail himself of the opportunity to file a reply or motion submissions to address this alleged breach during the written hearing. Whether the applicant addressed this breach or not is largely immaterial to my findings about procedural fairness, because the adjudicator did not consider the potential, prejudicial impacts on the parties. It was not incumbent on the applicant to direct the adjudicator to consider this key element.
16Second, the respondent points to both the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and the case conference report and order as sources of discretion for the adjudicator to disregard non-compliant submissions. Similarly, the respondent cites Tribunal case law where written submissions were struck. I accept that the adjudicator had the discretion to strike these submissions, but it is the way this discretion was exercised that amounts to a material breach of procedural fairness.
17Finally, the respondent claims that no error of fact or law was made, as the adjudicator stated at paragraph 25 of the decision that this case required “a very careful review of the medical evidence”. The respondent contends that a thorough review of the evidence was done. Regardless of whether the adjudicator reviewed all the evidence, I am still satisfied that the removal of several pages of argument (without a contextual analysis of the impact that this removal would have on the parties’ cases) is sufficient to establish a material breach of procedural fairness.
18The applicant’s request for reconsideration, pursuant to Rule 18.2(a), is granted.
Rule 18.4 – Cancelling the Decision
19Having found the applicant established the criteria for reconsideration, I conclude it is appropriate to use my authority under Rule 18.4 to cancel the decision. The applicant has demonstrated that the decision was rendered without a full account of his arguments. I am satisfied that the only appropriate remedy is to cancel the decision.
20I then order that the matter shall be reheard based on the parties’ submissions and evidence from the written hearing. Considering the need for the efficient adjudication of this dispute, I have determined that this rehearing will be completed as part of this reconsideration decision.
REHEARING OF THE APPLICATION
21I find that the applicant is entitled to ACB in the amount of $2,257.09 per month from January 17, 2020 ongoing, pending proof of incurred expenses.
22The applicant has not established entitlement to the disputed treatment plans and the remaining balances on the partially approved plans.
23There is no interest or award owing.
Issues in Dispute
24The applicant withdrew his claim for a housekeeping and home maintenance benefit in his submissions, so only the following issues remain in dispute:
i. Is the applicant entitled to ACB in the amount of $2,257.09 per month from January 17, 2020 ongoing?
ii. Is the applicant entitled to $2,973.49 ($4,504.53 less $1,531.04 approved) for a psychotherapeutic treatment and assessment plan, proposed by Dr. Andrew Shaul in a treatment plan/OCF-18 (“plan”) dated September 14, 2020?
iii. Is the applicant entitled to $3,300.00 ($4,996.25 less $1,696.25 approved) for a physical and occupational therapy treatment and assessment, proposed by Revie Physio Care in a treatment plan dated November 23, 2020?
iv. Is the applicant entitled to $3,300.00 for a physiotherapy and occupational therapy treatment plan, proposed by Revie Physio Care in a treatment plan dated January 28, 2021?
v. Is the applicant entitled to $2,460.00 for a neurology assessment, proposed by iScope Concussion and Pain Centres in a treatment plan dated March 8, 2021?
vi. Is the applicant entitled to $2,033.00 for a EEEG assessment, proposed by iScope Concussion and Pain Centres in a treatment plan dated March 8, 2021?
vii. Is the applicant entitled to $2,200.00 for a Spect Scan, proposed by iScope Concussion and Pain Centres in a treatment plan dated March 8, 2021?
viii. Is the applicant entitled to $2,486.00 for an in-home assessment, proposed by Access Rehab in a treatment plan dated May 20, 2021?
ix. Is the applicant entitled to $2,085.85 for an occupational therapy treatment and assessment, proposed by Julie Ann Villano in a treatment plan dated October 26, 2021?
x. Is the applicant entitled to $2,148.06 for an assistive devices assessment, proposed by Julie Ann Villano in a treatment plan dated October 26, 2021?
xi. Is the applicant entitled to $1,146.27 for an assistive devices assessment, proposed by Bhawan Katora in a treatment plan dated January 27, 2022?
xii. Is the applicant entitled to $10,469.25 ($29,001.45 less $18,532.20 approved) for x-rays, a neurophysiatry assessment, a psychological assessment, a mental/behavioural assessment and psychometric testing, proposed by Omega Medical in a treatment plan dated February 24, 2022?
xiii. Is the applicant entitled to $875.00 ($3,575.00 less $2,700.00 approved) for social worker services, proposed by iScope Concussion and Pain Centre in a treatment plan dated February 18, 2022?
xiv. Is the applicant entitled to $2,415.00 ($4,167.65 less $1,752.65 approved) for social worker services, proposed by iScope Concussion and Pain Centre in a treatment plan dated June 27, 2022?
xv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xvi. Is the applicant entitled to interest on any overdue payment of benefits?
Motion to Exclude Surveillance Evidence
25On October 3, 2023, the applicant filed a Notice of Motion seeking to either exclude certain surveillance evidence, or, in the alternative, allow in additional addendum reports. This motion was set to be heard as part of the original written hearing. Therefore, as this decision has been cancelled, I will address the applicant’s Notice of Motion based on the existing motion record.
26The applicant supports his motion by claiming that the respondent did not comply with the document exchange deadlines set out in the case conference report and order. As such, the applicant claims this late exchange has caused “significant prejudice” to his ability to present his case. In the alternative, the applicant asks for permission to rely on seven addendum reports that were obtained to address “the implications of the recently served surveillance evidence.”
27The respondent concedes that the surveillance evidence was not exchanged in accordance with the deadlines set out at the case conference, though it does not agree with the timeline described by the applicant. Despite the late exchange, the respondent asserts that the surveillance is highly relevant. It also claims that the applicant “has demonstrated that there is no prejudice… as it had ample time to review and get his own assessors to provide Addendum reports”. Finally, while the respondent does not oppose the inclusion of the four addendum reports listed in the applicant’s written hearing submissions, it does not consent to including three reports that were not mentioned in his submissions.
28In reply, the applicant submits that it is contradictory for the respondent to oppose the admission of some addendum reports, all the while claiming that its surveillance should be admitted. He also argues that the addendums “were rushed and produced late due to the Respondent’s actions”, with one of the addendums still pending as of the date of his motion reply.
29I order that the addendum reports mentioned in the applicant’s written hearing submissions and the surveillance evidence shall be admitted. The addendum reports not mentioned in the applicant’s submissions shall not be admitted, i.e., occupational therapy surveillance review addendum (from Ali Habash, dated August 18, 2023); neuro-physiatry surveillance review and addendum (from Dr. Robert Hastings, dated August 3, 2023); physical medicine assessment (from Dr. Hastings, dated August 3, 2023); orthopaedic report and addendum report (from Dr. Robin Richards, dated September 6, 2023 and September 21, 2023, respectively).
30I accept the respondent’s position that, despite any prejudice caused by the late exchange of the surveillance, the applicant’s ability to obtain addendum reports in time for the written hearing demonstrates that this prejudice was minor. When this relatively minor prejudice is contrasted with the relevance that surveillance has to the assessment of functional capacities (a key determination for the ACB), I find the prejudice facing the respondent from its exclusion means the balance leans in favour of admission.
31By allowing this evidence into the hearing, I can then conclude that the addendum reports mentioned in the applicant’s submissions should also be admitted. Not only does the respondent consent, but this order will ensure that there is a fulsome response to this aspect of the respondent’s case. Taken together, this order meets the needs of both parties by ensuring they can present their cases in a procedurally fair manner.
32For the addendum reports not mentioned in the submissions, I find the admission or exclusion of these reports is largely a moot question. Beyond the case conference report and order’s requirement for the parties to highlight evidence in their submissions, I note that in the absence of an explanation of how the reports support his argument in his submissions, there is no indication of how these reports should be assessed as part of the applicant’s case. In the absence of submissions, I have not considered these reports in rendering my decision.
Applicant’s Catastrophic Impairment Reports
33In addition to the dispute over inclusion of his addendum reports, the respondent also asked the Tribunal to strike any paragraphs in the applicant’s submissions that mentioned his catastrophic impairment reports (or, in the alternative, it asks I give these reports no weight). Citing “Rule 9.1 of the Licence Appeal Tribunal Rules”, the respondent states the Tribunal is to consider documents relevant to the issues in dispute. Since catastrophic impairment is not in dispute, the reports are not relevant and any reference to them should be struck. Further, the respondent claims that including the reports will prejudice its case on account of the limited pages allotted for its submissions.
34I will not grant either form of relief. First, Rule 9.1 of the Licence Appeal Tribunal Rules, 2023 does not apply to the present dispute, due to the timing of when this application was brought to the Tribunal. Regardless, Rule 9.1 refers to the ability of the Tribunal to order “further particulars, disclosure, and production of documents and things that the Tribunal considers relevant to the issues in dispute in the proceeding.” It does not limit the scope of what evidence can be admitted into a hearing.
35Second, the respondent has not demonstrated that the catastrophic impairment reports have so little relevance that they should be given no weight and that the related submissions should be struck. Though I accept that catastrophic impairment is not an issue before me, reports assessing catastrophic impairment will still provide information an applicant’s functional capacities and impairments, which is highly relevant information for both the ACB and medical benefits.
Attendant Care Benefit – Overview
36I find the applicant is entitled to an ACB in the amount of $2,257.09 per month from January 17, 2020 ongoing, pending proof of incurred expenses.
37Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for an ACB must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). The applicant has the onus to demonstrate entitlement on a balance of probabilities.
38The applicant concedes that “he cannot definitively establish the incurred expenses” for the ACB, so his submissions are limited to “his entitlement”.
39In support of his claim, the applicant argues that “[f]ollowing his assessment, [he] continued to demonstrate a low level of function that is commensurate with requiring attendant care.” He highlights an IE report from Terry Landry, occupational therapist (dated March 23, 2022), that recommended $1,415.60 per month for attendant care services. Finally, the applicant submits that “various treating physicians note that [his] mobility issues, incontinence, tremors, delayed, slow and slurred speech, slow gait, cognitive decline, leg weakness and numbness” all contribute to functional impairments that support his need for ACB.
40The respondent opposes the request, claiming that the applicant has not proven that his alleged impairments are accident-related. Rather, the respondent highlights his pre-accident health history, along with a post-accident fall on June 15, 2020, to dispute the existence of a connection between the subject accident and his alleged impairments. The respondent also relies on surveillance conducted in 2021 and 2023 to contest the recommendations made by the applicant’s occupational therapy assessor, Julie Ann Villano.
Attendant Care Benefit – Document Issues
41Before assessing the parties’ ACB arguments, there are a few further matters to address about the documentary evidence provided with their submissions.
42The applicant provides an extensive summary of his medical evidence in the first half of his initial submissions. Yet, despite referencing multiple assessments, there is no indication of what “his assessment” is referring to in the quotation above. Presumably, he is referring to Ms. Villano’s “Occupational Therapy In-Home Assessment/Form-1” (conducted September 21, 2021). However, I note that the Form 1 itself was not included with the report, despite the title of this document. The applicant’s Form 1 was included in the respondent’s submissions, so—in light of the importance placed on this document by s. 42(1) of the Schedule—I have considered this record as part of my analysis.
43Further, the respondent did not direct me to a copy of Mr. Landry’s Form 1, as it did not appear to have included a copy of this document with its submissions. The applicant’s submissions also do not appear to have a copy of this Form 1 either. However, Mr. Landry’s report provides detailed explanations about the amount of time he is recommending for each attendant care service. As such, I can infer that these amounts were then noted on the respondent’s Form 1, even though this document is not in evidence before me.
Attendant Care Benefit – Parties’ Expert Opinions
44Considering the extensive testing done by both the applicant’s and respondent’s assessors, as well as the overlap with their test results and recommendations, I place significant weight on the opinions from both parties’ attendant care assessors.
45According to the applicant’s report from Ms. Villano, the applicant reported being independent with all aspects of daily living prior to the accident. Following the accident, he reports needing help from his family and friends to complete housekeeping, meal preparation, etc. As part of her objective testing, Ms. Villano found the applicant demonstrated a limited range of motion with a number of movements, particularly in his trunk. Muscle strength testing showed below “Normal” results for all movements. Relying on these self-reported and observed issues with pain and dizziness, Ms. Villano found the applicant needed help with, in part, cleaning, preparing meals, and completing his exercise routine.
46Mr. Landry’s test results differ somewhat from Ms. Villano’s, but there are several key findings where the two assessors overlap, namely, physical impairments found on the applicant’s left side. First, while Mr. Landry determined the applicant’s range of motion was largely normal, he found some decreases on the left side of the body. He, like Ms. Villano, also noted that “Trunk range is limited.” Second, all the left side strength testing fell below “Normal”. Finally, when asked to perform certain tasks (such as cleaning and meal preparation), Mr. Landry observed the applicant required assistance due to decreased motor control on his left side.
47Both assessors reported the applicant demonstrated consistent effort throughout their assessments.
48While they come to different conclusions about the needed amounts and types of attendant care services, there is still significant overlap in their key findings about the applicant’s condition, especially on the left side of his body. The overlap between their test results, along with the extensive documentary basis that both assessors used to reach their opinions, allows me to conclude that Ms. Villano’s report is compelling. I can also rely on Mr. Landry’s report as a persuasive account of the applicant’s condition.
49The respondent asked me to place “no weight” on Ms. Villano’s report, as “the commendations [sic] made therein are exaggerated and based on entirely on self-report of the Applicant.” I do not accept this argument. Aside from the fact that Ms. Villano relied on both subjective reporting and objective testing to reach her conclusions, the significant overlap with the results obtained by the respondent’s assessor lends credence to her recommendations.
Attendant Care Benefit – Recommendations for Services
50By accepting both reports as compelling accounts of the applicant’s functional impairments and needs, the task before me is to determine whether the applicant has shown—at first instance and on a balance of probabilities—that the Form 1 recommendations made by Ms. Villano are reasonable and necessary. If so, I will then contrast them against the recommendations from Mr. Landry’s report.
51Starting with Part 1 of the Form 1, Ms. Villano recommends a total of 1,290 minutes per week for this group of services. This recommendation includes: 30 minutes per week spent trimming the applicant’s nails, and 180 minutes per day spent assisting with preparing, serving, and feeding the applicant his meals.
52For this group of services, Mr. Landry recommends: 20 minutes per day spent helping with dressing and undressing; 15 minutes per day for grooming; 10 minutes per week spent clipping the applicant’s nails; 60 minutes per day helping with meal preparation; and 30 minutes per day helping the applicant to “mobilize about his neighbourhood”. These recommendations amount to 885 minutes per week.
53For Part 2, Ms. Villano recommends a total of 80 minutes per day for hygiene. This time is broken into equal, 20-minute parts for: cleaning the bathroom; cleaning the bedroom; ensuring comfort, safety and security in the bedroom; and hanging and sorting clothing. Mr. Landry suggests a total of 50 minutes per day for hygiene, with a focus on maintaining “a safe bedroom and bathroom environment” and ensuring “safety and comfort”. He does not recommend any assistance with hanging and sorting clothing.
54Finally, in Part 3, Ms. Villano recommends 30 minutes per day for exercise, while Mr. Landry concluded that no assistance was needed. Instead, he recommends 20 minutes per day to assist with bathing (at least until assistive devices are installed).
55Starting with Part 1, I find the applicant has established entitlement to the services recommended by Ms. Villano. In addition to both assessors finding that some amount of time is required for clipping the applicant’s nails, the main divide in this Part is the time recommended for meals. Ms. Villano reported that, while the applicant has “demonstrated the necessary component skills to use a fork and bring food to his mouth”, he could not accomplish the necessary tasks involved with meal preparation:
He could not do the heavy lifting and had difficulty standing for a long time and performing repetitive movements such as mixing/stirring food and cutting the ingredients like vegetables, fruits, and meats.
Assistance is required for smeal [sic] preparation tasks. His son/wife perform these tasks.
56Mr. Landry also found a connection between the applicant’s physical limitations and his need for meal preparation assistance. However, as opposed to three hours, Mr. Landry found one hour per day was sufficient:
Secondary to decreased left upper extremity motor control, and decreased ability to crouch, kneel and squat, [the applicant] requires assistance with meal preparation.
Assistance of 60 minutes per day is recommended.
57With broad agreement over the need for assistance with meal preparation, I find Ms. Villano’s recommendation for what is, in effect, three blocks of one-hour assistance for each meal is reasonable. Put another way, as both assessors accept that the applicant lacks the strength and stability needed to prepare his meals, it is reasonable that the same amount of time is provided to ensure that all three, daily meals are addressed. I further find that the respondent has not satisfied me that 20 minutes per meal is sufficient.
58Then, regarding the recommendations for nail clipping, I find Ms. Villano’s 30 minutes per week is more in line with the applicant’s reported and observed capacities. Also, I note that Ms. Villano’s reasoning for her recommendation includes a detail that is not included in Mr. Landry’s report, i.e., the applicant bites his nails. As such, I find some additional time is likely needed to ensure that his nails are properly managed.
59For Part 2, I conclude the applicant has established that Ms. Villano’s recommendation for 80 minutes per day for hygiene is reasonable and necessary. While both assessors accept that some level of assistance is needed, I find Ms. Villano’s recommendation to set aside specific amounts of time for completing each of these different rooms is reasonable and necessary. Again, in light of the applicant’s established strength issues, it seems likely that he will require assistance with cleaning each of these important rooms. By setting aside specific time for the bathroom and the bedroom, each room will be adequately cleaned (and, in the case of the bedroom, secured) for the applicant’s daily use. Put another way, I do not accept Mr. Landry’s suggestion that these tasks can all be consolidated into a shorter block of time, as the state of each of these rooms will be essential to the applicant’s overall well-being.
60In a similar vein, as both assessors accept there is some level of weakness on the left side of his body, I find Ms. Villano’s recommendation for assistance with hanging and sorting clothing is necessary to address his impairments. The amount of time is also reasonable in light of the nature of the task.
61Finally, for Part 3, I find the applicant has established that 30 minutes of exercise is reasonable and necessary. Relying again on the applicant’s left side weakness, I find exercise assistance is necessary for his recovery from these accident-related impairments. I further find that Mr. Landry’s recommendation about exercise is at odds with his recommendation for bathing assistance. Specifically, if he believes the applicant requires assistance with tub transfers and bathing due to “decreased left upper and lower extremity motor control”, I find there is a disconnect to then conclude there is no need for exercise assistance—another activity that intuitively requires motor control. I am also satisfied that the amount of time set aside by Ms. Villano for this daily routine is reasonable.
Attendant Care Benefit – Respondent’s Other Arguments
62I do not find the respondent’s other arguments about the ACB challenge my conclusions above.
63Regarding the respondent’s argument about causation, I find it is compelling that Ms. Villano made her recommendations after reviewing extensive pre- and post-accident medical records. Though an occupational therapist is not permitted to make diagnoses, it is clear from her report that she was aware of the applicant’s health history, including his post-accident fall. In fact, there is a lengthy discussion about the fall itself and the immediate aftermath.
64Further, I note that the respondent’s occupational therapy assessor, Mr. Landry, found it was necessary to recommend at least some level of attendant care assistance. This assessment took place after the June 2020 fall, and he too reviewed post-accident records in reaching his recommendations. Considering the high level of support I place on both Ms. Villano’s and Mr. Landry’s reports, I find the respondent’s argument about causation is not made out.
65Another major argument raised by the respondent relates to its 2021 and 2023 surveillance. According to the respondent, this evidence shows the applicant engaging in activities that are at odds with the observations underpinning Ms. Villano’s opinion. In reply, the applicant contends that: “it is essential to recognize that individuals with injuries may have moments of functionality but may also experience limitations that are not captured in short surveillance clips.”
66I find the respondent’s reliance on surveillance is not compelling. First, during the six days the applicant was surveilled for the September 22, 2021 report, the applicant was only observed on three days. One of the three days involved the applicant being seen outside of an insurer’s examination appointment, while another day involved the applicant being driven as a passenger. I accept that the third day involved the applicant seen doing more physically demanding tasks, e.g., moving tools, dragging a bench, etc. However, I find the limited scope of these observations over the course of six days does not adequately challenge the basis of Ms. Villano’s opinion.
67For the March 2, 2023 report, the surveillance team states they saw the applicant during two of the three days they conducted their investigation. On the first day, the applicant is observed: carrying tools, driving in the snow, purchasing materials from a hardware store, etc. On the second day, the applicant’s vehicle was spotted at a site where construction work appears to be taking place. At this site, the surveillance team spoke with an unnamed male who said the applicant was hired by his wife “approximately two weeks ago to undertake the renovation” of some office space.
68I again find that this evidence does not sufficiently negate my findings above. First, though I accept that the applicant is seen performing similar physical tasks to those from the 2021 surveillance report, the applicant’s ability to lift, drag, drive, etc. does not completely upend the findings made by Ms. Villano. I agree with the applicant’s position that “individuals with injuries may have moments of functionality”, especially as there is a strong indication that his physical impairments seem to affect one side of his body more than the other. It is not clear whether this unilateral symptomology allowed him to modify his activities. I also note that the applicant was only observed on this day for a few hours in the morning.
69Second, I find the observations from the second of the two days in the 2023 report is of limited value. In addition to how it appears the team only briefly spotted the applicant driving, I find the information gleaned from the unnamed male is unspecific and vague. For instance, there is little indication of what role the applicant is playing in this renovation, e.g., doing all the work himself; overseeing a team of workers; etc. There is also no indication of how this unnamed individual came into this knowledge, e.g., saw the work done first-hand, his wife told him about the work, etc. These questions leave me uncertain as to the value I can take from this information. As such, on a balance of probabilities, I find the applicant has met his burden.
70Finally, the respondent argues that the applicant’s written submissions exceed the 15 pages allotted by the case conference report and order, such that any argument beyond paragraph 86 at the bottom of page 15 should be disregarded. As it relates to the ACB, I note that the applicant’s arguments are effectively limited to the first 15 pages of his submissions, with paragraphs 87 and 88 limited to several conclusory statements about this benefit. Therefore, even if I chose to limit my review of the submissions up to paragraph 86, I would still find the applicant had sufficiently met his onus for the ACB. I also do not see how the respondent was prejudiced by the inclusion of the conclusory statements about the ACB at the top of page 16.
Attendant Care Benefit – Conclusion
71For the reasons above, I find the applicant is entitled to an ACB in the amount of $2,257.09 per month from January 17, 2020 ongoing.
72Once again, the applicant concedes that “he cannot definitively establish the incurred expenses” for the ACB. Without proof of incurred expenses, no payments are owing at this time.
73I find that the applicant has not established entitlement to the disputed treatment plans and the remaining balances on the partially approved plans.
74To receive payment for a treatment and assessment plan under s. 15 and s. 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.
75In support of the 13 disputed plans, the applicant broadly asserts in his initial submissions that the proposed treatment has been “specifically tailored to meet [his] individual goals, targeting and treating her [sic] physical ailments.” There is also a general submission that the accident-related impairments have “made it impossible for him to return to his pre-collision place of employment, his self-care, and activities of daily living”, adding that denying the plans has left him “trapped in a cycle of physical and psychological pain.” Therefore, by pointing generally to the medical evidence (and summarizing several cases), the applicant submits that the medical benefits are all reasonable and necessary.
76I find these submissions do not draw any specific connections to the evidence to show why each individual plan is reasonable and necessary. There is an extensive summary of the medical evidence in the first half of his submissions, but there a few connections drawn between this summary and the specific treatment plans in dispute. The applicant has the onus to establish these connections at first instance, and I find he has not met this burden.
77This lack of specific arguments and pinpoint references is especially important in this case, as the treatment in dispute ranges from physiotherapy to psychotherapy, while the disputed assessments involve a SPECT scan, an in-home assessment, two assistive devices assessments, etc. When there is a diversity of treatment plans in dispute, an applicant must do more than make general statements about the evidence. There must be arguments that attach each plan to specific notes and reports, because each type of service and assessment will likely engage different forms of medical evidence.
78Furthermore, even though five of the treatment plans were partially approved, the applicant provides no explanation for why the remaining amounts should also be approved. In fact, by not directing the Tribunal’s attention to any copies of the disputed plans or denials, it fell upon the respondent to provide details about what services and items were and were not approved.
79An applicant must point to specific entries in the medical evidence to show why each denied plan’s proposed services and goals are necessary for recovery, as well as why the amount being requested is reasonable. Similarly, in the case of a partially approved plan, an applicant must explain why the remaining balance is reasonable and necessary. Even after reviewing the entirety of his initial written submissions (including those pages that were originally struck), I find the applicant has not met this standard. Instead, the applicant relied on general, unsupported statements about the evidence to argue for entitlement.
80I then find the applicant’s case law does not help him to meet his evidentiary burden. The analysis needed to determine entitlement to a treatment plan (or the remaining balance) is highly fact-specific, as one’s impairments and treatment needs are individual. There is little assistance that case law can provide a decision-maker when faced with a disputed medical benefit, even if the circumstances in a prior case share some similarities with the present dispute.
81Taken together, I find the applicant has not met his burden to demonstrate entitlement to the disputed treatment plans and the remaining balances on the partially approved plans.
Award and Interest
82Under s. 10 of Reg. 664, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
83Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
84Since there is no outstanding payment owing to the applicant, there is no basis for interest or an award.
CONCLUSION & ORDER
85The applicant’s request for reconsideration is granted pursuant to Rule 18.2.
86Pursuant to Rule 18.4, the decision is cancelled.
87A rehearing has been conducted.
88The applicant is entitled to ACB in the amount of $2,257.09 per month from January 17, 2020 ongoing, pending proof of incurred expenses.
89The applicant is not entitled to the disputed treatment plans and the remaining balances on the partially approved plans.
90There is no interest or award owing.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: August 6, 2025