Licence Appeal Tribunal File Number: 23-014566/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:
Diane Ciocioiu
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Doug Wright, Counsel
For the Respondent:
Adrianna Klukowska, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Diane Ciocioiu, the applicant, was involved in an automobile accident on January 4, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $36,896.19 for alternative housing, proposed by MyoHealth Rehab and Wellness in a treatment plan (“OCF-18”) dated November 30, 2023?
ii. Is the applicant entitled to $4,458.58 for flight expenses, proposed by MyoHealth Rehab and Wellness in an OCF-18 dated March 4, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3In her written hearing submissions, the applicant confirmed that she was withdrawing all of the remaining issues in dispute (being issue #1, issues 3-8, and issues 10-12 as listed in the Case Conference Report and Order dated May 17, 2024).
RESULT
4I find that:
i. The applicant has not established entitlement to the OCF-18s for alternate housing or flight expenses.
ii. No interest is payable.
iii. The respondent is not liable to pay an award.
Background
5The applicant was injured in a pedestrian automobile accident on January 4, 2023, when she was struck by a vehicle while walking. She sustained multiple injuries, including spinal fracture, pelvis fracture, a fractured left fibula and intraparenchymal hemorrhage of the brain. In February 2024, the respondent accepted that the applicant was catastrophically impaired as a result of the accident.
6The applicant is seeking a determination that she is entitled to a rehabilitation housing benefit in the amount of $36,896.19, being the cost of renting a two-bedroom apartment in Etobicoke for 12 months. The applicant is also seeking a determination that she is entitled to the cost of a one-way flight from Romania to Toronto, for both herself and her mother (her attendant care provider).
7At the time of the accident, the applicant was living in Brampton in a rented basement apartment with her boyfriend. Her parents, who lived in Romania, were visiting for Christmas at the time of the accident and had been staying in a short-term basement rental apartment in Scarborough. Immediately after the accident, the applicant was discharged from the hospital to her parents’ Scarborough short term rental apartment. The applicant then returned to the Brampton apartment with her boyfriend for a few weeks, until the relationship ended and the applicant moved back into the Scarborough short-term rental apartment with her parents.
8On or about March 30, 2023 the applicant and her parents returned to Romania and the applicant continued to live with her parents in Romania. The applicant’s mother provides attendant care to the applicant and is reimbursed in the amount of $5,960.48 per month by the respondent, based on the mother’s loss of income. The applicant wishes to return to Canada, but submits that she cannot afford to live in Canada unless the respondent funds rental housing. The applicant is requesting the cost of a two-bedroom apartment, given that her mother, as primary caregiver, must stay with her. As part of the return to Canada, the applicant is requesting the cost of two one-way tickets from Romania to Canada.
Rehabilitation benefit – cost of two-bedroom apartment rental
9I find that the applicant has not established entitlement to the cost of a two-bedroom apartment rental in Etobicoke.
10The applicant submitted an OCF-18 dated November 14, 2023 from MyoHealth Rehab and Wellness in the amount of $36,896.19. In the supporting letter of the same date, the applicant’s occupational therapist, Rachel Gaudio, stated that the applicant had moved to Romania with her parents out of necessity, but that she wished to return to Toronto. Due to the severity of her injuries, the applicant required daily support for self-care tasks and support for social-emotional and cognition challenges. Ms. Gaudio recommended that the applicant stay in a two-bedroom apartment as her mother (as primary caregiver) would support her with her activities of daily living. An apartment in Etobicoke was recommended so that the applicant would be close to her brother for emotional support and social engagement. Ms. Gaudio stated that the cost of a two-bedroom apartment in Etobicoke was approximately $2,700 per month.
11Section 16 of the Schedule sets out the regulatory framework with respect to the disputed benefit. Pursuant to section 16(1) of the Schedule:
rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.
Parties’ Positions
12The applicant submits that subsection 16(3)(l) is broad enough to require the respondent to pay for rental accommodations in this circumstance, being “other goods and services that the insurer agrees are essential for the rehabilitation of the insured person, and for which a benefit is not otherwise provided in this Regulation”. She argues that the cost of renting the two-bedroom apartment in Etobicoke is reasonable and necessary for her ongoing rehabilitation. Her reasons for wanting to return to Canada are:
i. She would prefer to live in Canada – the applicant references the November 6, 2023 CAT assessment report of Dr. Zakzanis where the applicant reported feeling sad and anxious; that she wanted to come back to Canada; that she did not have friends in Romania; that she grew up in Canada and her friends were there;
ii. The ease of obtaining treatment in Canada, as opposed to Romania;
iii. To reintegrate into society, as contemplated by the Schedule; and
iv. The ease of administering the claim – her parents currently have to pay for everything in Romanian Leis, and submit it to the respondent in Canadian dollars for reimbursement.
13The respondent references s. 16(3)(i) which lists “home modifications and home devices, including communication aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate the existing home”.
14It argues that the housing expense in Canada is not needed, as the applicant has stated that since the accident, she has relied on her mother for attendant care and emotional support. Since the available evidence establishes that her mother planned to retire and live in Romania, a housing expense in Canada is not required. The respondent further submits that no information has been provided about the family’s housing situation in Romania and how it would compare to the applicant’s pre-accident housing.
15Even if the applicant was entitled to alternative housing in Canada, the respondent submits that the applicant would only be entitled to the cost difference between an average one bedroom apartment in Brampton/Toronto (where she had been living pre-accident) and the increased cost of a two bedroom apartment (to accommodate her mother). Further, since the mother was receiving approximately $6,000 monthly in attendant care payments, the mother should be expected to contribute to her own housing expenses with these payments.
16Finally, the respondent submits that the $2,700 monthly rent specified in the OCF-18 has no substantiation. No corroborating listings or research were included, and the identified area of Etobicoke was not an area where the applicant had previously lived.
Alternate housing expense of two-bedroom apartment
17Section 16(3)(i) of the Schedule includes home modifications to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person. In the present case, the applicant was living in rental housing pre-accident, and I agree that s. 16(3)(i) would support modifying such rental housing (if the property owner agreed to it). However, given the applicant’s move to Romania with her parents she is no longer living in the Brampton apartment, and modifying her pre-accident apartment would not be possible. No information has been provided about the applicant’s current accommodations in Romania.
18Both parties have cited the Tribunal decision 17-002592 v Cumis General Insurance, 2018 CanLII 95555 (ON LAT), which I find to be instructive in this matter. In 17-002592 v Cumis, the Tribunal similarly considered the cost of new rental accommodations where the claimant was no longer living in the previous rental apartment. In that case, the Tribunal determined that there was no statutory or regulatory basis for failing to account for the claimant’s pre-accident housing expenses. As such, the applicant’s pre-accident rental accommodation expenses must be considered in determining the benefit to be paid for post-accident accommodations. The Tribunal calculated that monthly benefit payable by deducting the monthly rent of the applicant’s pre-accident housing, from the monthly rent of the applicant’s current housing.
19I agree with the reasoning in 17-002592 v Cumis, and find that the appropriate amount of the rehabilitation benefit would be the difference between the applicant’s pre-accident accommodations, and a two bedroom apartment also in the Brampton area. However, I agree with the respondent that the applicant has not provided enough information and evidence to establish the cost of this benefit.
20Firstly, the applicant has not substantiated the request for $2,700 per month for a two-bedroom Etobicoke apartment. No real estate listings or housing information were provided to corroborate the $2,700 amount. Further, the applicant had not been living in Etobicoke prior to the accident. In the November 14, 2023 letter, the applicant’s occupational therapist stated that Etobicoke was preferable since the applicant’s brother lived there and he could provide emotional support and social engagement. However, the applicant has submitted that she did not get along with her brother, and this was why she was not living in his house in Etobicoke.
21Accordingly, I agree with the respondent that the $2,700 amount requested by the applicant has not been substantiated. The applicant submits that she had previously been living in Brampton. As such, I find that the appropriate basis of comparison would be to compare the average cost of a two bedroom apartment in Brampton, to the cost of the type of apartment the applicant had been renting pre-accident.
22However, the applicant has not provided sufficient information about her pre-accident accommodations. In her sworn statement on March 1, 2023, the applicant stated that she had been living with her boyfriend in a basement unit in Brampton for six months prior to the accident. Prior to that, she had been living alone since the age of 24. No information has been provided about whether the pre-accident apartment was a one or two bedroom apartment, or what the monthly rent was. The applicant stated that she had contributed $600 monthly to rent and utilities and that there was no lease, since they were “only renting the basement”. Given that the applicant has not provided details of her pre-accident apartment, I am unable to make the comparison of pre and post-accident living arrangements.
23As such, without details and evidence as to the applicant’s pre-accident accommodations, or evidence in support of alternative two-bedroom housing, I find that the applicant has not met her evidentiary onus to establish entitlement to the OCF-18 for a two-bedroom apartment rental in Etobicoke.
OCF-18 for flights from Romania to Toronto
24I find that the applicant has not established entitlement to the two flights from Romania to Toronto in the amount of $4,458.58.
25The applicant submitted an OCF-18 on March 4, 2024 for plane tickets for herself and her mother. In the additional comments section, it was stated that it had been challenging for the applicant to obtain a cohesive and collaborative rehabilitation plan in Romania and that with full rehabilitation services in Canada, it was hoped that she would make active strides in her physical rehabilitation. It was further noted that she would be travelling with her mother who has been a “significant source of emotional and cognitive support”.
26The respondent submits that the cost of the flights are not reasonable and necessary. It further argues that there is no provision in the Schedule supporting such a travel expense. Sections 15(1)(h) and s. 16(3)(l) require that the insurer must agree that the goods and services are essential. The respondent submits that the proposed flights are neither essential nor warranted. It argues that the applicant’s family’s decision to travel to Romania was a discretionary, personal one, since the family wished to return to live in Romania.
27In response, the applicant argues that her decision to go to Romania was not “voluntary”. Rather, she states that she could not afford to stay in Canada post-accident, let alone pay someone to provide attendant care.
28I find that the applicant has not established entitlement to the flights from Romania to Canada. \
29The applicant has not directed me to which provision of the Schedule supports the payment of travel expenses in such circumstances. The catch-all provisions of s. 15(1)(h) and s. 16(3)(l) of the Schedule require that the insurer agree that the goods and services are essential. In this case, the respondent has not agreed that the flights are essential for the applicant’s rehabilitation or treatment. The alternative provisions of the Schedule supporting travel expenses, including s. 15(1)(g) and s. 16(3)(k) describe transportation to and from specific treatment or counselling sessions. The applicant has not provided any submissions on how these provisions would apply to a one way flight from Romania to Toronto.
30The OCF-18 states that the applicant’s return to Canada was necessary, since it has been difficult for the applicant to “obtain a cohesive and collaborative rehabilitation plan in Romania” and that a return to Canada would help her make great strides in her physical rehabilitation. However, no details have been provided by the applicant as to what treatment or rehabilitation she received in Romania, and how it differs from the treatment and rehabilitation she could receive in Canada.
31Accordingly, I find that the applicant has not established entitlement to the OCF-18 for the cost of flights from Romania to Toronto.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
33The applicant sought an award under s. 10 of Reg. 664. Under s. 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.
34The applicant submits that an award is warranted, as she is extremely vulnerable, given that she is catastrophically impaired and unable to return to Canada to seek treatment. The applicant further argues that the respondent clearly had not reviewed the CAT IE results or considered her occupational therapist’s letter dated November 13, 2023.
35I find that the applicant has not established that an award is warranted. The applicant has not directed me to evidence that demonstrates that the respondent’s conduct was inflexible, immoderate, unwielding or stubborn. Accordingly, the respondent is not liable to pay an award.
ORDER
36I find that:
i. The applicant has not established entitlement to the OCF-18s for alternate housing or flight expenses.
ii. No interest is payable.
iii. The respondent is not liable to pay an award.
Released: September 23, 2025
Ulana Pahuta
Adjudicator