Licence Appeal Tribunal File Number: 20-015494/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:
Shamim Mawji
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Shamim Mawji, Self-Represented
For the Respondent:
Andrea R. Lim, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shamim Mawji (“the Applicant”) was involved in an automobile accident on May 19, 2008, and sought benefits from The Dominion of Canada General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In response to the application, the Respondent raised a preliminary issue, which is the subject of this hearing, together with the substantive issues in dispute.
PRELIMINARY ISSUE
3The preliminary issue in dispute is:
i. Is the Applicant barred from proceeding to a hearing on her entitlement to attendant care benefits (“ACBs”) and housekeeping benefits (“HH”) claimed in her application because she never attended an insurer’s examination (“IE”)?
SUBSTANTIVE ISSUES IN DISPUTE
4The substantive issues in dispute are:
i. Is the Applicant entitled to ACBs in the amount of $5,796.81 per month for the period from April 1, 2019 to-date and ongoing, less any amounts paid by the Respondent?
ii. Is the Applicant entitled to HH in the amount of $100.00 per week for the period from April 1, 2019 to-date and ongoing?
iii. Is the Respondent entitled to a repayment of non-earner benefits (“NEBs”) in the amount of $6,475.00, related to payments made during the period from September 1, 2017 to May 1, 2018?
iv. Is the Applicant entitled to a medical benefit in the amount of $2,747.32, for the expense of an attendant care support person provided by Positive Approach Occupational Therapy, submitted via treatment plan/OCF-18 (“plan”), dated December 7, 2016?
v. Is the Applicant entitled to rehabilitation benefits in the amount of $401.14, for the cost of a wireless multifunctional printer, submitted via OCF-6, dated October 25, 2018?
vi. Is the Applicant entitled to mileage expenses in the amount of $14,279.11, submitted via OCF-6, dated December 7, 2018?
vii. Is the Applicant entitled to a rehabilitation benefit in the amount of $7,537.52 for landscaping expenses, submitted via OCF-6, dated December 7, 2018?
viii. Is the Respondent liable to pay an award sunder section 10 of Regulation 664 because it unreasonably withheld or delayed the payment of benefits to the Applicant?
ix. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
5On the preliminary issue, I find that the Applicant has failed to attend properly-scheduled IEs. However, I have exercised my discretion and permitted the application, on the condition that the period of claim for ACBs and HH is limited to the period from April 1, 2019 to the date of the release of this decision.
6On the substantive issues, I find that the Applicant has not demonstrated that she is entitled to the benefits claimed, nor interest or an award.
BACKGROUND AND PROCEDURAL HISTORY
7On November 29, 2012, the Respondent notified the Applicant that it agreed that she sustained a catastrophic mental and behavioural impairment as a result of the accident, on May 19, 2008.
8Years later, in 2018, the parties disagreed on the Applicant’s entitlement to certain benefits and the Applicant submitted an application to the Tribunal for resolution of the dispute (issues i & ii listed above). That application encountered at least six adjournments prior to the first case conference. During this adjournment period, the Applicant filed a second application with the Tribunal, dated December 14, 2020. The second Application sought entitlement to ACBs, HH, and the other medical and rehabilitation benefits listed above.
9The Respondent denied that the Applicant was entitled to the benefits claimed. Moreover, in response to the second application, the Respondent raised the preliminary issue that the Applicant should not be permitted to proceed with the Application because she has not attended IEs in relation to ACBs and HH.
10The parties participated in a case conference on February 4, 2021, in relation to the first application. The result of the case conference was that a written hearing was ordered for December 2021, together with production and submission deadlines leading up to the hearing.
11Prior to the written hearing, on September 14, 2021, the Applicant’s counsel formally removed themselves as the Applicant’s counsel.
12The Applicant never filed submissions for the hearing.
13On November 26, 2021, the Respondent moved for a dismissal of the application as abandoned. In response, the self-represented Applicant requested an adjournment of the hearing to permit her to retain counsel. The Tribunal approved the Applicant’s request and adjourned the hearing until September 30, 2022, to permit the Applicant to retain counsel.
14On August 15, 2022, the Applicant requested another adjournment of the written hearing. She cited difficulty seeking counsel as her reasons for the Adjournment. The Tribunal stayed the proceedings by motion order dated September 23, 2022.
15The Tribunal conducted a motion hearing on May 10, 2023 to revisit the stay of proceedings, ordered on September 23, 2022. During the motion hearing, the stay was extended, and a resumption of the motion hearing was scheduled for October 30, 2023. This was done to allow the Applicant time to retain counsel to assist her with her applications.
16On October 25, 2023, five days before the resumption of the motion hearing, the Applicant requested an adjournment of the motion hearing. In response, the Tribunal advised the Applicant that she is required to attend the motion hearing to make her submissions regarding an adjournment of the hearing. However, the Applicant never attended the resumption of the October 30, 2023 motion hearing.
17On November 24, 2023, the Tribunal issued a motion hearing decision. In that decision, the Tribunal denied the Respondent’s request to dismiss the application as abandoned. The Tribunal also denied the Applicant’s adjournment request. The Tribunal ordered the parties to attend case conferences for both applications in February 2024.
18The case conference occurred as scheduled, but no order was issued. This was due to the unfortunate and untimely death of the adjudicator who presided over the case conference. The adjudicator passed away prior to being able to issue her case conference report and order.
19A resumption of the case conference occurred on April 5, 2024. There, the Applicant sought another adjournment of the case conferences due to the recent death of an uncle, as well as two other family member deaths that occurred within the past five months. The request for an adjournment was denied.
20At the resumption of the case conference on April 5, 2024, the Applicant’s two files were combined and ordered to proceed to a written hearing under one file number. The case conference report and order specified that the hearing is to be scheduled for a date after November 30, 2024, to accommodate the Applicant’s need to communicate by mail or personal delivery. Deadlines to produce documents were also provided in the case conference report and order.
21On or around April 18, 2024, the Tribunal issued notices to the parties that the written hearing was scheduled for November 22, 2024. The Respondent’s initial submissions for the preliminary issue were due September 25, 2024, and the Applicant would be required to issue submissions responding to the preliminary issue, on or before October 16, 2024.
22The Respondent filed submissions and evidence for the preliminary issue hearing, on September 25, 2024. The Applicant never filed any submissions in response. On November 1, 2024, the Respondent filed reply submissions on the preliminary issue hearing. In those submissions, the Respondent asked that the matters be dismissed as abandoned because the Applicant never filed any responding submissions.
23On November 22, 2024, the Applicant filed an adjournment request for the written hearing. She cited her health and difficulty obtaining legal counsel as the reasons.
24On November 29, 2024, a legal representative wrote to the Tribunal to advise that she had not yet been retained by the Applicant, but nevertheless request a 60-day adjournment to review the Applicant’s file. The request was denied because the representative was not on the record with the Tribunal. No declaration of representative was ever submitted then or thereafter.
25In response to the Applicant’s adjournment request of November 22, 2024, the Tribunal issued a motion order dated December 4, 2024. The Tribunal adjourned the written hearing until February 27, 2025 to permit the Applicant to participate in IEs as well as give her time for her potential counsel to review the file. The Applicant was ordered to file submissions on or before January 28, 2025. The adjournment was ordered on a peremptory basis, and the Applicant was advised that the Tribunal would likely not grant another adjournment to retain counsel.
26According to the Applicant, she retained counsel on or around December 23, 2024. However, according to the Applicant, later that day her counsel emailed her to say that they would not act for her.
27On January 27, 2025 the Applicant requested another adjournment of the hearing. The request was made with reference to her difficulty retaining counsel.
28On January 28, 2025, the Applicant filed written submissions that address both the preliminary and substantive issues in this matter.
29On February 13, 2025, the Respondent issued supplementary reply submissions, together with supporting documents and authorities.
30On February 20, 2025, the Applicant filed additional submissions, in response to the Respondent’s submissions on February 13, 2025.
31On February 27, 2025, the Applicant requested another adjournment of the written hearing. She cited the need to retain counsel as the reason for the request.
32On March 5, 2025, the Tribunal issued a motion order and denied the Applicant’s request for an adjournment.
33I have been assigned the written hearings – both preliminary and substantive.
ANALYSIS
Preliminary issue – The law
34With respect to her claims for ACBs and HH, I find that the Applicant has not complied with her obligations outlined in section 44 of the Schedule but I exercise my discretion under section 55(2) and (3) to permit her application to proceed with conditions.
35Section 44 of the Schedule provides the respondent with the ability to examine the Applicant for the purpose of determining if she is or continues to be entitled to a benefit. The Respondent’s ability to request examinations is not absolute. It must follow the notice requirements outlined in the section and must not exercise this right more than reasonably necessary. The Respondent must make reasonable efforts to schedule the examination for a day, time, and location that are convenient for the Applicant.
36Pursuant to section 44(9)(2)(iii), the Applicant is required to attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.
37It must be noted however, that the issue of the Applicant’s non-attendance for the 2016 IEs became moot once the parties agreed to a partial release of the Applicant’s claims, on November 1, 2018. The partial release covered all claims for caregiver benefits, medical benefits, ACBs, and HH, for the period from the date of the accident to November 1, 2018. Thus, for the purpose of this hearing, her non-compliance stems from her failure to attend IEs that were initially requested in December 2018.
Preliminary issue – Procedural history
38On December 5, 2018, the Respondent advised that it would be seeking IEs with respect to the Applicant’s claim for ACBs. The notice advised that no assessment had been completed since September 22, 2015, and that IEs were attempted in 2016 but never completed. It sought an updated opinion considering the Applicant’s participation in psychotherapy and occupational therapy. Formal notice of the IEs was sent December 11, 2018, for an in-home OT IE on December 28, 2018, and a psychiatry IE on January 21, 2019, at a clinic in Richmond Hill, for which transportation would be provided. The Applicant has never raised any issue with respect to the content of the December 5, 2018 IE notice, and my review of same finds it compliant with section 44 of the Schedule.
39On December 19, 2018, counsel for the Applicant advised that she was unable to attend the OT IE, scheduled for December 28, 2018. No reason was provided.
40On January 2, 2019, the Respondent rescheduled the OT IE, for January 17, 2019, at the Applicant’s residence. The psychiatric IE remained as originally scheduled.
41On February 21, 2019, the Respondent rescheduled the IEs because the Applicant sought accommodation for electromagnetic sensitivities. The OT IE was rescheduled for March 20, 109, in the Applicant’s home. The psychiatric IE was rescheduled to April 17, 2019, at a clinic in Richmond Hill, for which transportation would be provided.
42On March 20, 2019, the Respondent again rescheduled the IEs due to the Applicant’s electromagnetic sensitivities. The OT IE was rescheduled for April 10, 2019, in the Applicant’s home, and the psychiatric IE remained as scheduled for April 17, 2019.
43On April 10, 2019, the Respondent once again rescheduled the IEs due to the Applicant’s electromagnetic sensitivities. The OT IE was rescheduled for July 17, 2019, at the Applicant’s home, and the psychiatric IE was rescheduled for July 4, 2019, at a clinic in Richmond Hill.
44On June 20, 2019, the Respondent advised the Applicant that the psychiatric IE was rescheduled for July 30, 2019, at a clinic in Richmond Hill. Transportation was arranged for the assessment.
45On July 4, 2019, counsel for the Applicant advised that the Applicant is ill and unable to participate in the IEs scheduled for July 17 and 30, 2019, and asked that new IEs be scheduled.
46Meanwhile, despite her request to reschedule the IEs in July, the Applicant participated in her own assessments on June 25 and July 16, 2019, with OT Rosenfeld. On October 2, 2019, the Applicant submitted a new Form 1 in relation to those assessments, dated July 16, 2019, seeking ACBs at the rate of $6,482.44 per month.
47The IEs were not rescheduled. On December 11, 2020, the Applicant submitted another application to the Tribunal, seeking entitlement to ACBs, HH, as well as the remaining medical and rehabilitation benefits listed at issue. The Respondent, in response, raised the preliminary issue of non-attendance at the OT and psychiatric IEs. However, ongoing delayed ensued with the application with the Tribunal, as previously outlined.
48Eventually, the Applicant, through a friend she authorized to represent her, advised the Respondent that she would attend the IEs. In return, the Respondent then sent notice to the Applicant on December 6, 2024, advising that an OT IE was scheduled for January 2, 2025.
49However, on December 30, 2024, the Applicant again requested that the IEs be rescheduled. She advised the Respondent that two deaths occurred in her extended family and that the funerals were scheduled for December 31, 2024 and January 2, 2025. The Applicant asked that the IEs be scheduled for a time after January 10, 2025.
50The Respondent agreed to reschedule the IE. It sent notice to the Applicant on January 3, 2025 that the OT IE was scheduled to take place at her residence on January 27, 2025.
51The OT IE was commenced on January 27, 2025, but the assessor was unable to complete the examination. According to a letter from the assessor to the Respondent, dated February 5, 2025, the assessment could not be completed within the allotted timeframe due to the wealth of information provided by the Applicant and her husband regarding the 17 years following the subject accident. According to the letter, the assessor offered to continue the IE via telephone, but the Applicant declined due to electromagnetic sensitivity and requested a second day be scheduled. The continuation of the IE was scheduled for March 3, 2025, which the Respondent advised the Applicant of in letters dated February 3, and 7, 2025. As of issuing this decision, there is no evidence before me to suggest that the Applicant attended the resumption of the OT IE, scheduled for March 3, 2025.
52Meanwhile, on January 28, 2025, the Applicant submitted a new Form 1, from an assessment she procured and personally attended on January 10, 2025, with OT J. Satok. The Form 1 sought ACBs totalling $10,312.16 per month. The Applicant also submitted a disability certificate, completed by Dr. G. Franklin, physician, dated January 20, 2025, from an examination on January 15, 2025.
Preliminary issue - Attendance in the incomplete IE is unsatisfactory
53I find that the Applicant’s partial participation in the uncompleted OT IE on January 27, 2025 does not satisfy her obligation outlined in section 44(9)(2)iii. Section 44(9)(2)(iii) provides that the Applicant must attend the IE and submit to all reasonable physical, psychological, mental and functional examinations requested by the person conducting the IE. To me, submitting to all reasonable examination includes collecting all relevant information from the examinee, in addition to participating in the physical testing administered by the assessor.
54The Applicant’s attendance at her own assessments is indicative that she is medically able to participate in the required examinations. The Applicant advised the Respondent that she was ill and unable to attend IEs schedule for July 17 and 30, 2019. Yet the Applicant attended two of her own IEs during the same, on June 25 and July 16, 2019, with OT Rosenfeld. The Applicant advised that she would be unable to attend an IE on January 2, 2025 and asked it be rescheduled until after January 10, 2025, the date she attended at an assessment she procured, with OT Satok.
Preliminary issue – No excuse for not attending IEs
55I find that the Applicant’s reported electromagnetic sensitivity is not a reasonable excuse for not attending the IEs.
56Throughout her claim, the Applicant states that she is ill, or otherwise unable to participate in the IEs, and often referred to electromagnetic sensitivity as a reason. Yet she can meet with and participate in her own assessments without any issue related to electromagnetic sensitivity. Additionally, surveillance evidence, dated March 15, 2023, includes media of the Applicant travelling in a vehicle, attending a commercial printing centre, and grocery shopping. These actions contradict the Applicant’s claim that she is unable to complete the OT IE via telephone, and are in direct contrast to the reasons the Applicant cites for not continuing and completing the IE via telephone. I see no reason why the Applicant can participate in her own assessments, travel in a vehicle, and attend at places of business rife with electromagnetic waves such as a commercial printing centre, but cannot complete the OT IE via telephone.
57The reality is that the Respondent has been seeking IEs for a period of over six years and has been prejudiced by the Applicant’s ongoing frustration of the IE process. The Respondent has a right to examine the Applicant to assess her health status and it has not had an opportunity to do so in over six years. Meanwhile, the Applicant continued to make claims for the very benefits that the Respondent is seeking to examine the Applicant about.
58The evidence demonstrates that the Applicant has a pattern of frustrating the IE process through non-attendance or ongoing requests to reschedule the assessments. While she recently participated in part of an assessment, the fact remains that the assessment was never completed and the Applicant has yet to complete it. Accordingly, I conclude that she has not complied with her obligations outlined in section 44(9)(2)(iii) of the Schedule.
Preliminary issue – Discretion to permit the application
59Having determined that the Applicant had not complied with her obligations outlined in section 44 of the Schedule, I must determine whether the Applicant is barred from proceeding with her application in respect of her entitlement to ACBs and HH. For the following reasons, I choose to use my discretion in this extraordinary circumstance and permit the Applicant to apply to the Tribunal with respect to her claims for ACBs and HH.
60Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal for dispute resolution if the insurer has provided a notice in accordance with the Schedule that it requires an examination pursuant to section 44, but the person has not complied with that section.
61Section 55(2) provides that the Tribunal may permit the application despite non-compliance, and section 55(3) permits the Tribunal to impose terms and conditions on any permission granted through section 55(2) of the Schedule.
62Section 55(1)2 is unambiguous and compulsory. It clearly states that a person who is not compliant with section 44(9)(2)(iii) of the Schedule shall not apply to the Tribunal. Thus, the Applicant is barred from proceeding with her application with respect to her claims for ACBs and HH, subject to the Tribunal’s permission to proceed.
63Having considered all the evidence and the long history of the claim, I find that this is a rare situation where the Applicant should be permitted to apply despite her non-compliance with section 44 of the Schedule. For the following reasons, I choose to exercise my discretion pursuant to section 55(2) to permit the application with respect to the Applicant’s entitlement to ACBs and HH.
64I am sensitive to the Applicant’s mental and behavioral impairments. Her on-and-off participation in the IE and dispute resolution process is likely because of those impairments. The Tribunal ought to accommodate her in this situation. This is an exceptional circumstance because having mental and behavioural impairments does not exempt an insured person from participating in the IE process. I remind future litigants that there is nothing in the Schedule that suggests claimants are exempt from the IE process due to mental and behavioral impairments.
65I am also considerate that the Respondent is owed finality in the dispute. The Applicant’s claims have been before the Tribunal for about six years, yet no resolution to the dispute has been reached. Permitting the Applicant to proceed with her claims in the current applications, despite her failure to attend the IEs, will help foster closure on the disputes and will put the parties back on track to adjust any of the Applicant’s future claims as required.
66Accordingly, I find that the Applicant may proceed with her application with respect to her entitlement to ACBs and HH in these exceptional circumstances, despite failing to comply with section 44 of the Schedule.
Conditions on proceeding
67Pursuant to section 55(3) of the Schedule, I choose to impose conditions on the permission to proceed that I have afforded to the Applicant. The condition that I am imposing is that her claim for HH and ACBs is restricted for the period ending on the date this decision is released.
68The condition is imposed for the benefit of both parties.
69The condition is put in place to provide the Respondent with a timely and just result on whether it is obliged to pay expenses to the Applicant for the period claimed. It is imposed to level the playing field, while ensuring that the dispute is addressed in a timely fashion and without further delay. As the Respondent is owed finality in the dispute, this must also be weighed against the rights and needs of the Applicant, who was injured in the accident and in a vulnerable state due to the ongoing issues related to her accident-related injuries. It would be unfair to the Respondent for me to assess the Applicant’s ongoing monthly entitlement to ACBs, and likewise the weekly entitlement to HH, without a full record of the Applicant’s ability, which includes IE reports.
70The condition to restrict the period of the Applicant’s claim is to protect her entitlement to any future claims for ACBs and HH. Indeed, the Applicant’s claims have merit, but as I will elaborate further, she has not demonstrated that she incurred the expenses or that she is entitled to the expenses because they were unreasonably withheld or delayed by the Respondent. It is possible that, following the completion of the IEs, that the Applicant is indeed entitled to incurred ACBs up to $6,000.00 per month, but that determination should only be made once the IEs are completed.
The Applicant had not demonstrated entitlement to ACBs and HH
71I find that the Applicant has not demonstrated that she is entitled to any payments with respect to ACBs or HH for the period from April 1, 2019 to-date because she has not incurred any expenses related to ACBs and HH.
72The Applicant is entitled to all reasonable and necessary expenses incurred for the services of an attendant or aide, pursuant to section 19 of the Schedule. Section 3(7)(e) provides that an expense is incurred if the insured person received the goods and services to which the expense relates and is liable for that expense. Additionally, section 3(7)(e) distinguishes two types of service provider: professional service providers who provide the services in the course of their employment or occupational in which they would normally be engaged in but for the accident; and non-professional service providers, such as family members, who sustain an economic loss as a result of providing the services.
73Additionally, section 3(8) of the Schedule permits the Tribunal to deem an expense to have been incurred if it finds that the insurer unreasonably withheld or delayed the payment of the benefit in respect of the expense.
74Because the Applicant sustained a catastrophic impairment as a result of the accident, she is entitled to up to $6,000.00 per month in ACBs, subject to it being reasonable and necessary, and incurred. For the same reason, she is also entitled to HH expenses, up to a maximum of $100.00 per week, subject to the expense being reasonable and necessary, and incurred.
75If the services are provided by a non-professional, section 19(3)(5) of the Schedule limits the Applicant’s entitlement only to the economic loss of the service provider. In Simser v Aviva Canada and FSCO, 2015 ONSC 2363 the Divisional Court concluded that an economic loss must stem directly from providing the services and opportunity loss is not included in economic loss.
76I find that the Applicant is not entitled to ACBs and HH because she has not incurred any of the expenses.
77The Applicant tendered no submissions or evidence to demonstrate that she incurred ACBs or HH. There is no indication that she hired professional assistance to provide ACBs or HH, and there is no indication that someone provided the services to her in a non-professional capacity and suffered an economic loss as a result. None of the Applicant’s submissions state that she incurred ACBs or HH, and there is no evidence such as invoices to confirm she incurred the services.
78The Applicant is not entitled to ACBs and HH pursuant to section 3(8) of the Schedule. There is no indication that the Respondent unreasonably withheld or delayed the payment of ACBs or HH. In fact, I find the opposite. In this case, the Respondent compensated for all ACBs and HH incurred by the Applicant, even for periods which the Applicant was non-compliant with section 44 of the Schedule. This is evidenced by the partial settlement executed November 1, 2018, which covered all claims for ACBs and HH for the period from the date of the accident to August 31, 2017.
79The Respondent has paid for all other expenses submitted by the Applicant as they relate to ACBs and HH. In March 2020, the Respondent sent payment to the Applicant in accordance with the amounts she incurred, as reflected in the invoices, which cover the period up to and including February 28, 2020. The Applicant has not submitted any invoices for any services incurred after February 28, 2020. To-date, the Respondent has not denied payment for amount incurred by the Applicant.
80Having determined that the Applicant has not incurred any expenses related to ACBs and HH, and that the Respondent never unreasonably withheld payment of the benefits, it follows that the Applicant has not met her onus to demonstrate entitlement to the benefits claimed.
No determination on the Applicant’s ongoing entitlement to ACBs and HH
81Typically, in a dispute of this nature where ongoing entitlement to ACBs and HH is an issue, the adjudicator will perform an analysis of whether the Applicant meets the legal test for entitlement to the benefits. Such an analysis involves a review of the evidence and a determination as to whether the Applicant requires the reasonable and necessary expenses of an aide or attendant, and if so, what amount per month is reasonable and necessary, subject to the $6,000.00 monthly limit for catastrophically impaired persons.
82This is not a typical case.
83I reiterate that I am aware of the Applicant’s mental and behavioural impairments and the impact they have on her ability to retain counsel and participate in the dispute resolution process. I am also live to the issue that the Respondent requires finality in a dispute. This is why I chose to permit the Applicant to advance her claim despite her non-attendance at IEs, but on the condition that the claim be restricted to the period ending on the day the decision is released. This will protect the Applicant and permit her to make future claims with respect to HH and ACBs following this decision.
Non-earner benefits (NEBs)
Did the Respondent overpay NEBs?
84I find that the Respondent has not demonstrated that it overpaid NEBs in the amount of $6,475.00.
85Section 47(1)1 & 47(1)2 of the Schedule permit the Respondent to deduct from the amounts payable for NEBs. The deduction is limited to any periodic benefit being received by the insured person in respect of a period following the accident, and in respect of an impairment that occurred before the accident.
86The Respondent claims entitlement to a repayment of NEBs paid during the period from September 1, 2017 to May 31, 2018, totalling $6,475.00. It submits that the Applicant’s Long-Term Disability (“LTD”) was backdated to 2008, and she received LTD payments during the period it paid NEBs. It submits that, pursuant to section 47 of the Schedule, the Respondent is entitled to a deduction of NEBs, based on the LTD payments.
87By letter dated May 18, 2018, the Applicant confirmed that she is in receipt of LTD payments. In a letter, dated May 31, 2018, the Applicant confirmed that she received LTD payments at a rate of $3,300.31 per month. In the same letter, she refuted that LTD payments are temporary and captured under section 47 of the Schedule. For this hearing, the Applicant maintains that LTD payments are not a “temporary disability benefit”, were commenced in 2016, and are therefore not deductible from her NEBs.
88I find that the LTD payments are not captured under section 47(1)1 of the Schedule because the LTD payments are in respect of an impairment that occurred after the accident. The April 12, 2016 letter from SunLife Financial confirms the Applicant’s entitlement to LTD was approved, retroactively to August 18, 2008. This post-dates the subject accident. Thus, the payments cannot be captured in section 47(1) of the Schedule.
89Having determined that the Respondent never overpaid NEBs, it follows that it is not entitled to a repayment of NEBs.
Attendant care support person not payable
90I find that these expenses are captured within the settlement, executed November 1, 2018.
91This treatment plan seeks funding for the Applicant to take a travel companion for a vacation to a warm holiday destination. The cost for the trip, as proposed in the plan, is $2,099.00, plus taxes in the amount of $448.32, and a form fee of $200.00. The Respondent denied the funding on the basis that the Applicant had failed to attend IEs, and that it was in the process of investigating whether her service providers were licenced. In its submissions, the Respondent submits that the Applicant’s request falls outside of the realm of ACBs and is not payable, in keeping with F.V. v. Wawanesa Mutual Insurance Company, 2017 CanLII 44824 (ON LAT). The Applicant made no submissions as to why or how she is entitled to the cost of an attendant care support person while on vacation, and in addition to the ACBs incurred and paid for during the same period.
92I find that the services proposed in this plan are captured in the services provided under ACBs. The travel companion for the vacation is akin to an aide or attendant, which is captured under ACBs. Given that the plan is dated December 7, 2016, and the services proposed in the plan are captured under expenses related to ACBs, I find that the expenses in this plan, as they relate to a travel companion, are captured in the partial settlement. The partial settlement covered all claims for ACBs for the period ending August 31, 2017.
93Thus, I conclude that the Applicant has not met her onus to demonstrate that the expenses related to an aide or attendant are reasonable and necessary as a result of the accident.
Wireless Printer
94I find that the Applicant has not met her onus to demonstrate entitlement to a wireless printer.
95The Applicant never addressed the printer in her submissions, but the evidence demonstrates that she sought reimbursement for her costs associated with the purchase of a wireless printer, submitted to the Respondent via OCF-6, dated October 25, 2018. The Respondent denied funding for the printer on the grounds that there was no medical rationale for the expense. In its submissions, the Respondent notes that none of the Applicant’s healthcare providers recommended a wireless printer. The Respondent further questions why the Applicant requires such a device, in light of her reported electromagnetic hypersensitivity.
96Having tendered no submissions and evidence on the issue, it follows that the Applicant has not met her onus to demonstrate entitlement to the expense claimed. I also query whether a wireless printer is a reasonable and necessary expense for a person who reports to suffer from severe electromagnetic hypersensitivity.
Mileage and parking expenses not payable
97The Applicant claims entitlement to mileage expenses in the amount of $14,279.00. She claims entitlement to parking charges totalling $2,166.25 and $12,110.86 in mileage (calculated at $.40/km). She submits that the Respondent agreed to pay mileage at $.40/km plus parking charges and that it has historically offered to fund transportation expenses related to trips her in personal vehicle, private taxi, or limo.
98The Applicant submits that the expenses cover a period of over 10 years and about 721 trips to various specialists and estimates that about 25% of the trips had additional parking charges. She submits that it has become increasingly difficult to find suitable drivers with suitable vehicles and that the Respondent has never addressed whether there was a minimum distance related to mileage. Lastly, the Applicant submits that the receipts related to her expenses were shared with her previous counsel, but never specified which counsel and whether she attempted to obtain those receipts.
99The Respondent submits that it notified the Applicant that it required parking receipts and confirmation of attendance at the healthcare providers, as well as a comparison of the transportation expenses already paid, prior to considering funding any additional mileage or parking fees. It submits that the Applicant has never provided said receipts and confirmation of attendance to-date. The Respondent directs me to the Superintendent’s Guideline No. 04/16 – Transportation Expense Guideline (the “TEG”) provides it with a 50km deductible for any round trip for an insured person. It submits that the Applicant’s evidence suggests that the trips fall within the 50km deductible and fails to include whether parking or taxi fees were incurred, or whether the transportation was for the Applicant or for an aide or attendant. Lastly, the Respondent questions the accuracy of the Applicant’s calculations in her expenses. It submits that, for example, the trip between her home in Richmond Hill to the office of her chiropractor, Dr. Rajwani, is 14.5 km each way, but the Applicant claims the distance is 54 km.
100I find that the Applicant is not subject to the 50km deductible because she sustained a catastrophic impairment as a result of the accident. This is outlined in section 3(1)(b) of the Schedule and is confirmed in the TEG.
101I find that the Applicant has not demonstrated entitlement to the expenses because she has not substantiated the transportation and parking costs she claimed. The Applicant has not provided evidence that she incurred transportation and parking expenses claimed. There are no receipts before me to confirm that the expenses were incurred.
102Considering that she has not provided evidence of the expense, I find that the Applicant has not met her onus to demonstrate entitlement to the transportation expenses claimed.
Landscaping expenses
103The Applicant claims expenses totalling $7,537.52 for landscaping and snow removal for the period from May 2009 to October 2018. However, she never addressed the claims in her submission and provided no evidence of the expenses.
104The Respondent provided a copy of the OCF-6 and the expenses from various providers and submits that the expenses relate to landscaping and snow removal, which are captured in HH expenses. It submits that it paid all HH expenses incurred by the Applicant at a rate of $100.00 per week for the period claimed, and that the Applicant has not submitted any invoices related to HH expenses beyond February 28, 2020. The Applicant never addressed the Respondent’s submissions that it paid HH for the period ending February 28, 2020, at the rate of $100/week.
105I find that the Applicant has not demonstrated entitlement to these expenses. I agree with the Respondent that landscaping and snow removal expenses fall under section 23(1) of the Schedule, which obliges the Respondent to pay up to $100.00 per week for expense incurred in related to housekeeping and home maintenance services that she normally performed before the accident.
106I find that some of the expenses claimed by the Applicant are captured in the partial release, executed dated November 1, 2018. The partial release covers all HH and ACB expenses incurred up to August 31, 2017. Accordingly, I will not consider the Applicant’s HH expenses prior to September 1, 2017.
107The Respondent paid the maximum amount of $100 per week for HH expenses for the period from September 1, 2017, to November 25, 2017. This is reflected in the explanation of benefits, dated November 29, 2017. Similarly, the Respondent paid $100/week in HH expenses for the period from December 23, 2017, to March 8, 2018. At most, the evidence possibly suggests that there is a period of about four weeks, between November 26, 2017 to December 22, 2017, where the Respondent never paid the maximum rate of $100/week.
108I find that the Applicant has not demonstrated that she is entitled to payment for HH services incurred during the period from November 26, 2017 and December 22, 2017 because she has provided no invoices or receipts relating to the period. I have reviewed the evidentiary record entirely and have been unable to find any HH expenses for the relevant period. I am unable to find an expense payable simply because the Respondent has not provided an explanation of benefits covering it. It remains the Applicant’s onus to demonstrate entitlement to the benefits claimed. Having failed to provide evidence of the expense, it follows that the Applicant has failed to meet her onus to demonstrate entitlement to landscaping expenses, incurred during the period from May 2009 to October 2018.
Interest
109Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no benefits went overdue and no interest is payable.
Award
110The Applicant sought an award under section 10 of Regulation 664. Under section 10, 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.
111The Applicant’s submissions are critical of the Respondent’s adjusting of her claim but fall short of establishing that it unreasonably withheld or delayed the payment of benefits. My review of the circumstances finds no evidence demonstrating that the Respondent unreasonably withheld or delayed the payment of benefits. This is further supported by my finding that no benefits are payable.
112Moreover, I find that the Respondent has been exceptionally accommodating of the Applicant and her situation. Recall, it paid all HH and ACB expenses submitted, despite the Applicant being non-compliant with section 44 of the Schedule. The Respondent should not be punished for its accommodating behaviour.
113Accordingly, no award is payable.
CONCLUSION AND ORDER
114The Applicant has not complied with her obligations outlined in section 44 of the Schedule. However, I have permitted her application in these rare circumstances to afford both her and the Respondent some finality in the dispute.
115I have imposed a condition on the permission granted to the Applicant in that I have limited her claim for ACBs and HH for the period from September 1, 2019 to the date that this decision is released. This preserves the Applicant’s right to claim entitlement to future ACBs and HH.
116The Applicant has not demonstrated that she is entitled to the benefits claimed, nor interest or an award.
Released: August 20, 2025
Brian Norris
Adjudicator