Rowe v. Definity Insurance Company, 2026 CanLII 37057

Licence Appeal Tribunal

Citation: Rowe v. Definity Insurance Company, 2026 ONLAT 25-005156/AABS

Licence Appeal Tribunal File Number: 25-005156/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:

Roselyn Rowe

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Roger R. Foisy, Counsel

For the Respondent: Lora Castellucci, Counsel

Court Reporter: Guido Riccioni

HEARD by Videoconference: January 22, 2026

OVERVIEW

1Roselyn Rowe, the applicant, was involved in an automobile accident on January 30, 2020, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The parties agreed on November 4, 2024, that the applicant sustained a catastrophic impairment as a result of the accident.

ISSUES

3The issues to be decided are:

i. Is the applicant entitled to attendant care benefits (ACBs) in the amount of $1,145.04 per month ($2,313.68 less $1,168.64 approved) from February 1, 2025 to February 28, 2025?

ii. Is the applicant entitled to ACBs in the amount of $2,554.22 per month ($5,266.37 less $2,712.15 approved) from March 1, 2025 to March 31, 2025?

iii. Is the applicant entitled to ACBs in the amount of $6,000.00 per month, less any amounts paid, from June 1, 2025 to November 30, 2025?

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

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4I have considered the evidence to which I was directed and the submissions of the parties and I find:

i. The applicant is not entitled to $1,145.04 for ACB from February 1, 2025 to February 28, 2025.

ii. The applicant is not entitled to $2,554.22 for ACB from March 1, 2025 to March 31, 2025.

iii. The applicant has not established that she is entitled to ACB above the amounts that have already been paid from June 1, 2025 to November 30, 2025.

iv. No interest is owing.

v. The applicant is not entitled to an award under s. 10 of Reg. 664.

ANALYSIS

Attendant Care Benefits

5Section 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.

6The maximum payable for ACBs under the Schedule is $6,000.00 per month for catastrophically impaired insureds.

7Section 3(7)(e) of the Schedule provides that expenses are not incurred by an insured person unless: (i) they have received the goods or services to which the expense relates; (ii) they have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expense; and (iii) the person who provided the goods or services (a) did so in the course of the employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or (b) sustained an economic loss as a result of providing the goods or services to the insured person.

8Further, the amount of a monthly ACBs is determined in accordance with the approved version of the document entitled Assessment of Attendant Care Needs ("Form 1") that is required to be submitted under s. 42 and is calculated by (a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care, and (b) adding the amounts determined under clause (a), if more than one type of attendant care is required.

9Section 3(8) of the Schedule further provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person's entitlement to the benefit, deem the expense to have been incurred.

10The applicant submits that the requirements for claiming ACBs have been satisfied in accordance with the Schedule and that the invoices should be paid in full. She submits that the respondent's denials are unreasonable and the ACBs should be deemed incurred in the amount of $6,000.00 per month. The applicant relies on the Superintendent's Guideline No. 01/18, and No. A-03/18 to support that the invoices should be paid at the invoiced rate of $39.00 per hour, as opposed to the hourly rate in the Form-1 which is used to calculate the monthly benefit. Further, the applicant submits that sufficient details have been provided to prove incurred expenses and that the respondent's request for minute-by-minute reporting of services provided is not required and is unreasonable. Also, the applicant submits that the respondent's application of a "ratio method" to calculate the amount payable is not authorized by the Schedule.

11The respondent submits that the applicant has not proven the attendant care has been incurred because insufficient detail has been provided. In the absence of the required details as to how much time was provided for each of the three levels of care, as calculated on the Form-1, the respondent has applied a ratio method to pay for ACBs, which is a method upheld by the Divisional Court in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (Malitskiy). Further, the respondent submits that Statutory Accident Benefits are not intended to provide 100 per cent coverage, and that Guideline A-03/18 allows for insurers to pay above the Guideline rate, but are not required to do so. The respondent submits the Schedule is not intended for 100% coverage of required care or rehabilitation, and only the Guideline rates must be paid.

Form-1s

12In April 2025 the parties agreed that the applicant is eligible for up to $6,000.00 per month in ACB. This tells me that in April 2025 the respondent accepted the January 9, 2025 Form 1 of Ms. Tassone. I find this confirmed by the respondent's use of the "1/9/2025" Form 1 for the calculation of payment in the Explanation of Benefits (EOB) letters after April 2025. For context, I will review the history of the attendant care needs assessments.

13On November 23, 2020, the respondent acknowledged the applicant's Form-1 completed by Justyna Struzlik, occupational therapist. The Form-1 identified the applicant's attendant care needs of $10,289.64 per month. The respondent required her to attend an Insurer's Examination.

14In the 2020 letter that provided notice of the Insurer's Examination, the respondent indicated: "In order to give consideration to Attendant Care benefits, we require you to complete and return the Expense Claim Form (OCF-6) by December 23, 2020. The Expense Claim Form (OCF-6) must contain the service providers name, address, phone number, the dates and hours the services were provided and the services performed."

15I also note in a 2025 EOB letter that there is reference to an attendant care assessment on January 21, 2021, conducted by Ms. Angela Bertolo, occupational therapist, which concluded the applicant's attendant care needs were assessed at $1,406.45. However, I was not directed to the Form-1 related to this assessment.

16On October 2, 2024, a Form-1 was completed by Penny Briggs, occupational therapist, on behalf of the respondent, which assessed the applicant's attendant care needs as $2,712.15 per month. I was also not directed to this October 2024 Form-1 for consideration. However, in correspondence dated October 21, 2024, the respondent advised the applicant that her ACB was approved effective October 15, 2024. The respondent further explained that an Expense Claim form (OCF-6) or a Professional Service Provider Invoice was due by November 21, 2024, and identified the information required:

i. the Service Provider name, address, and phone number;

ii. the dates, hours and individual services performed; and

iii. the number of minutes spent on each service.

17On November 4, 2024, the applicant was informed by letter that her claim for catastrophic impairment designation was approved, and therefore the monthly limit for ACB as per s. 19(3) para 1. ii. of the Schedule was increased to $6,000.00.

18The applicant underwent a new occupational therapy assessment on January 2, 2025, completed by Alina Tassone, occupational therapist, on behalf of the applicant. The applicant's attendant care needs were assessed at $10,227.53 per month. On January 22, 2025, the respondent denied the applicant's new Form-1 and maintained its position that the October 21, 2024 Form-1 of Ms. Briggs was more reasonable and necessary. In the reasons for denial, the respondent referred to documentation from 2020, 2021, and 2023. Although the applicant had been deemed CAT in 2024, there is no mention of the CAT assessment findings. In the denial letter the respondent relied on the Form-1 of Ms. Briggs and reference to the attendant care assessment conducted in 2021 by Angela Bertolo. I find that the reasons provided in the January 2025 EOB give little insight as to why the October 2024 Form-1 is preferred over the January 2025 Form-1.

Ratio Method

19The applicant submitted invoices for incurred ACB for the months of February and March 2025.

20On April 7, 2025, in the EOB which responds to the submission of the February and March 2025 ACB invoices, the respondent reminded the applicant of the need to provide "the dates and hours along with the individual services performed and the number of minutes spent on each service". Further, the respondent advised of the following:

As there is no detailed breakdown of services provided in the hours billed, we will review the invoice as a percentage or "ratio" based on the Assessment of Attendant Care Needs (Form 1) dated 10/2/2024. The hours listed in the invoice(s) will be assigned an attendant care rate according to the ratio of the hours allocated in Part 1, 2, and 3 of the Form 1.

Using the ratio method, as per the Form 1, 32.76% of the invoice is allocated to Part 1 at $14.90 per hour. 65.52% of the invoice is allocated to Part 2 at $14.00 per hour and 1.71% is allocated to Part 3 at $21.11 per hour.

21In the absence of the details on the February and March invoices, the respondent applied a "ratio method" and the Superintendent's Guideline rates to calculate the amount payable for attendant care services. For the February 2025 invoice of 52.5 hours totalling $2,313.68, the respondent calculated $859.22 is payable. For the March 2025 invoice of 119.5 hours totalling $5,266.37, the respondent calculated $1,955.74 is payable.

22The respondent went on to formally request, under s. 33(1) of the Schedule, to be provided with: "The dates and hours along with the individual attendant care services performed and the number of minutes spent on each service." I have not been directed to evidence that this information was provided by the applicant.

23I heard testimony from the Adjuster as to how the ratio method is calculated:

i. Based on the Form-1, the monthly time allotted for each of the three levels of care is converted into a percentage of the total time.

ii. The time claimed in an invoice is then multiplied by the percentages to calculate the time payable for each level of care.

iii. The Guideline rates of pay are then applied to the incurred hours for each level of care.

iv. The payable amount of incurred attendant care is proportionate to the Form-1.

24The applicant submits that the requirement for "minute-by-minute" accounting of ACB services is unreasonable. I find that the respondent's request for "the number of minutes spent on each service" was not intended to be a request for a minute-by-minute accounting of ACB incurred, as alleged by the applicant, but rather a means of determining the amount of time spent on each level of care provided for the purposes of calculating the amount of ACB incurred and therefore payable under s. 19 and 42 of the Schedule.

25In Malitskiy, the Divisional Court held at para. 30 that pursuant to s. 19(3) para. 5 of the Schedule, if the actual expenses incurred are lower than the amount of the monthly care benefit calculated on the Form 1, the insurer is only liable for payment of the incurred expenses.

26Here, the applicant submitted to the respondent invoices with a monthly total number of hours of ACB, without any breakdown for each of the three levels of care, and a uniform rate of $39.00 per hour was applied to all ACB provided.

27In order to determine the quantum for which the respondent is liable to pay, based on the level of care incurred, there must be an accounting for the amount of time ACB was provided at each level of care. I find that absent the applicant providing this breakdown, it is appropriate for calculations to be undertaken to determine the quantum for which the respondent is liable based on the information that is provided. In Malitskiy, the Divisional Court further confirmed that conducting a calculation of the quantum of attendant care incurred based on the time allocated to each level of care in the Form 1 is an appropriate method.

28I find that in the absence of sufficient details about the amount of time for each level of care incurred, the ratio method allows the respondent to calculate an amount payable that is proportional to the Form-1. Although the Schedule does not specifically provide for this method of calculation, the ratio method used by the respondent was approved by the Divisional Court in Malitskiy, and in any event, I find that it is more reasonable to provide a proportionate amount of reimbursement based on the ratio method than simply denying the incurred invoices entirely due to lack of detailed information on the services provided.

Rate of Pay

29The Superintendent's Guideline No. 01/18: Attendant Care Hourly Rate Guideline establishes the maximum hourly rates used to calculate the maximum monthly attendant care benefit in accordance with s. 19(2)(a) of the Schedule.

30The Revised Attendant Care Hourly Rate Guideline and Clarification of Health Care Providers Subject to the Professional Services Guideline No. A-03/18, clarifies that the maximum hourly rates in the Form-1 are for the purpose of calculating the monthly benefit, and are not the maximum rate payable for attendant care services. Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline.

31I find the Superintendent's Guidelines No. 01/18 and A-03/18 are clear, that rates used for calculating the monthly benefit are not a cap on the payable rates. However, to pay more than the Guideline rates is discretionary. I disagree with the applicant that the attendant care services must be paid at the invoiced rate, up to the limit of the monthly benefit. In the case at hand, the respondent has applied the Guideline rates. I find the Tribunal does not have the jurisdiction to order an insurer to pay beyond the Guideline rates.

32The applicant relies on Thompson v Definity Insurance Company, 2025 CanLII 132408 (ON LAT) (Thompson), in which Adjudicator Szczudlo ordered the insurer "to fund the full Form-1 monthly quantum, irrespective of the hourly rates billed by ACB provider." However, in Thompson the insurer had used the Superintendent's Guideline No. 03/10 (Attendant Care Hourly Rate Guideline) dated June 2010 to calculate the monthly ACB and was thereby in violation of the FSCO Superintendent's Guideline No. 01/18 (Attendant Care Hourly Rate Guideline) and Bulletin A-03/18. I find Thompson does not apply to the case at hand because the respondent has properly applied the Superintendent's Guideline No. 01/18 and Bulletin A-03/18.

33Further, I find that the Divisional Court was clear in Malitskiy that the Schedule does not intend for full renumeration of expenses. At paragraph 42, the Court stated:

The legislature has not adopted a full no-fault scheme. Where injuries are catastrophic, it is not expected that full compensation of any particular expense would necessarily be received through this preliminary regime.

34Thus, I find that although the applicant's care providers charged a rate of $39.00 per hour, there is no binding authority requiring the respondent to pay the full invoiced rate.

Disputed Invoices

35The applicant submits that the respondent has unreasonably withheld payment of incurred expenses because it required "minute-by-minute" accounting for the services received, and that the invoices should be deemed incurred pursuant to s. 3(8) of the Schedule. Further, the applicant submits that what has been provided contains sufficient detail and that the Schedule does not require anything further, and therefore these invoices should be paid in full. Further, that had the respondent needed confirmation of the services rendered, it had the right to request a Statutory Declaration, which it did not.

36The respondent submits that additional information is required before the invoices can be paid in full, because it is not clear which services were provided on which days, and the information was requested under s.33(1) of the Schedule. The respondent consistently requested details of the services rendered.

37The invoices submitted and partial approvals are as follows:

Date of Invoice	Number of hours invoiced	Quantum of Invoice	Approved Expense	Denied Expense
February 13 - 28	52.5	$2,313.68	$1,168.64	$1,145.04
March 1 - 31	119.5	$5,266.37	$2,712.15	$2,554.22
June 1 - 17	63	$2,776.41	$2,776.41	$0.00
June 18 - 30	50	$2,203.50	$785.45	$1,418.05
July 1 - 31	114	$5,023.98	$1,828.61	$3,195.37
August 1 - 31	131	$5,773.17	$2,101.30	$3,671.87
September 1 - 30	109	$4,803.63	$1,748.41	$3,055.22
October 1 - 31	117	$5,156.19	$1,876.73	$3,279.46
November 1 - 30	116	$5,112.12	$1,888.71	$3,223.41

38I did not hear testimony from the PSW, or the applicant as to what services had been performed. Therefore, I am being asked to make a determination based solely on the documentary evidence.

39The applicant's submitted invoices for services rendered by a PSW each provides the service provider's name, address, and phone number, as well as a service description of "PSW/Attendant Care" "Level 1, 2, & 3". The date of the service, number of hours per day, and rate per hour are indicated. There is also a note which consistently identifies the services performed as: "Duties: Assistance with grooming, feeding, mobility, extra laundering, hygiene, basic supervisory care, co-ordination of attendant care, medication, bathing and maintenance of supplies and equipment." For clarity, I note that the invoices did not distinguish the amount of time spent on each of the three levels of care.

40On April 7, 2025, the respondent acknowledged the ACB invoices for February and March 2025. In the April 7, 2025 letter, the applicant is reminded that the dates and hours along with the individual services performed and the number of minutes spent on each service must be provided. It is unclear to me when the PSW timesheets were provided to the respondent. The timesheets are a chart completed by the PSW and initialled by the applicant. Each entry identifies the date of service, the time of day, and total hours on that date. At the bottom of the page there is a direction "Please X assessed duties to indicate reviewed and performed duties if required". For services provided there is a list of attendant care tasks: grooming; feeding; mobility; extra laundering; basic supervisory care; co-ordination of attendant care; medication; bathing; maintenance of supplies and equipment. The shortest duration for service is one hour, with the longest duration being nine hours in a single day. I note that on each date entry, all of the attendant care tasks are X'd, whether the duration of care was one hour or nine hours.

41The applicant acknowledged in her submissions that although the services available are indicated on the timesheet, it does not mean the services were actually provided.

42I find that this dispute is specific to the interpretation of how much detail is required regarding what services were provided on any given day and for how long.

43I find that the timesheets provided are vague as to which attendant care tasks were performed on which days. The completion of the timesheets is generic. Whether the PSW was present for one hour or nine hours the indication is that the same services were provided. There is no indication as to the duration for each level of care. Therefore, I find that from February to October 2025, the applicant has not proven which services were incurred, causing the respondent to apply the ratio-method to calculate the amount payable.

44In November 2025, the applicant's PSW changed the format of her timesheet. She provided the details as to the attendant care tasks provided and the number of minutes for each. Having provided these details to the respondent, the EOB letter does not reference the ratio method being used. However, the Guideline rates were applied based on the minutes provided for each level of care. As determined above, whether rates above the Guideline are paid is at the discretion of the respondent.

45As I have set out above, it is discretionary for an insurer to pay above a Guideline rate. The respondent has not suggested that the full reported time of incurred services will not be paid. The respondent has indicated that it will apply the Guideline rate to the respective levels of care rendered. In order to do that, it is necessary for the respondent to receive sufficient details. I find the respondent consistently requested additional details to be provided to make this calculation.

46The onus is on the applicant to prove attendant care has been incurred.

47The applicant requests that I deem the expenses to have been incurred. As noted above, section 3(8) of the Schedule provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person's entitlement to the benefit, deem the expense to have been incurred.

48I find that the respondent has not unreasonably denied the applicant's ACBs because, in the absence of the requested details, the respondent applied the ratio method and provided partial payment of the invoices proportional to the Form-1 for services rendered for February through October 2025. In fact, based on the approved amounts in the chart above, at some point after April 2025 the respondent recalculated the February and March invoices using the 1/9/2025 Form 1 and increased the amount payable from that which was initially calculated based on the October 2024 Form 1.

49I find that the denied portions of the invoices are not owing because the applicant has not provided the requested details of how much time on each level of care services were rendered, and because the respondent is only liable to pay the Guideline rates. I similarly find that the respondent was not unreasonable in doing so such that I would exercise my discretion to deem the expenses incurred under s. 3(8).

50Based on the evidence before me, I find the applicant has not proven on a balance of probabilities that the denied portions of the invoices are payable.

Interest

51As there are no benefits owing, interest does not apply.

Award

52I find that the applicant is not entitled to an award under s. 10 of Reg 664 for the reasons that follow.

53The 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.

54The case law is well established that in determining whether an insurer's conduct in withholding or denying a benefit warrants an award, an insurer's behaviour must be seen as "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate."

55The applicant submits that an award should be granted because the respondent has applied a non-legislated payment method with extra burdens to be met for payment. Further, the applicant submits the respondent did not provide clear reasons for denials. Also, this is a pattern of adjustment that requires deterrence, and it is not an inadvertent error. I note that I was not directed to evidence or provided submissions on specifics as to what part of the reasons for denial are not clear. The applicant did not make a submission as to the quantum of the award sought.

56The respondent submits that the standard is not that of perfection, and the overall handling of the claim has been reasonable, therefore the applicant has not met her burden.

57As I have provided my reasons above, I will not reiterate them here. To summarize, I have found that the calculation of the ACB payments has been reasonable, in that the ACB was not completely denied, but rather were partially approved based on the documentation available. Also, I have found that the Tribunal does not have the jurisdiction to order a respondent to pay a rate above the Superintendent's Guidelines, and to do so or for the Tribunal to deem the expense incurred is discretionary. Further, in considering the method of calculation, partial denials, and request for additional information, I have found the respondent's reasons for denial are clear.

58I have not heard submissions or been directed to evidence that would support that the respondent has been excessive, imprudent, stubborn, inflexible, unyielding, or immoderate based on the above.

59I find that the applicant has not established on a balance of probabilities that the respondent has unreasonably withheld or delayed payment of benefits. As such, she is not entitled to an award under s. 10 of Reg. 664.

ORDER

60Having reviewed the evidence to which I was directed, and having considered the parties submissions, for the reasons above, I find:

i. The applicant is not entitled to $1,145.04 for ACB from February 1, 2025 to February 28, 2025.

ii. The applicant is not entitled to $2,554.22 for ACB from March 1, 2025 to March 31, 2025.

iii. The applicant has not established that she is entitled to ACB above the amounts that have already been paid from June 1, 2025 to November 30, 2025.

iv. No interest is owing.

v. The applicant is not entitled to an award under s. 10 of Reg. 664.