Citation: Nutley v. Definity Insurance Company, 2026 ONLAT 24-015485/AABS

Licence Appeal Tribunal File Number: 24-015485/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:

Craig Nutley

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Alex Wolfe, Counsel Amanda Enwright, Counsel

For the Respondent: Colin MacDonald, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Craig Nutley, the applicant, was involved in an automobile accident on December 9, 2022, 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.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $351.96 per month from September 1, 2024 to September 30, 2024?

ii. Is the applicant entitled to ACBs in the amount of $652.20 per month from October 1, 2024 to October 31, 2024?

iii. Is the applicant entitled to ACBs in the amount of $91.74 per month from November 1, 2024 to November 30, 2024?

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

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

3Although the issues in dispute are framed suggesting the parties are disputing entitlement to ACBs, the dispute between the parties is more accurately regarding the respondent’s liability for payment of incurred ACBs during the periods identified.

RESULT

4The applicant is entitled to payment of $347.96, $647.64, and $91.74 for his OCF-6 expenses, plus interest on overdue benefits pursuant to s. 51 of the Schedule.

5The respondent is not liable to pay an award.

ANALYSIS

Is the applicant entitled to payment of the denied portions of the OCF-6s for ACBs incurred?

6I find that the applicant is entitled to payment of $347.96, $643.74, and $91.74 for his OCF-6 expenses.

Legal framework

7The applicant bears the burden of proving that attendant‑care expenses are reasonable and necessary. Section 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 ACBs provided by an aide or attendant. The respondent bears the burden of establishing any statutory limit that would preclude payment above a particular amount or rate.

8Section 3(7)(e) of the Schedule grounds the insurer’s obligation to pay for expenses that meet the definition of incurred. This includes the requirement that the applicant receives the goods or services and has paid, promised to pay, or is otherwise legally obligated to pay for the expense.

9Section 42(1) of the Schedule provides that an application for ACBs 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”). Section 19(2)(a) of the Schedule authorizes the use of maximum hourly rates to calculate a Total Assessed Monthly ACB amount (“Monthly ACB”) on the Form‑1.

10The Superintendent’s Guideline No. 01/18: Attendant Care Hourly Rate Guideline (“Guideline”) applies to the accident in this case, which occurred on December 9, 2022. This Guideline is incorporated into the Schedule by reference in s. 19(2)(a). In setting out its purpose, the 2018 Guideline states that it (emphasis added):

Establishes the maximum hourly rates used to calculate the maximum monthly attendant care benefit in accordance with subsection 19 (2) (a) of the SABS.

11Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (“Malitskiy”) at paragraph 38 considers whether this exercise of processing a payment of an invoice could lean towards an objective or subjective exercise. The Divisional Court interpreted the Schedule as follows:

This means that whenever there is a significant variation from the activities, hours or hourly rates incurred there could be a need to determine whether the expenditure incurred was “reasonable or necessary”, the very issue which the calculation required by s. 19(2) was expected to resolve. At the very least this creates a circumstance where the decision to pay is converted from an objective exercise (receive the invoice, make the payment) to one with subjective content (was the treatment reasonable or necessary) potentially requiring expert advice.

12In Malitskiy, at paragraph 40, the court noted that the January 2018 Guideline “was released with a Bulletin directed to the attention of all insurance companies licensed to transact automobile insurance and health care providers in Ontario.” The Bulletin (Revised Attendant Care Hourly Rate Guideline and Clarification of Healthcare Providers Subject to the Professional Services Guideline) No. A-03/18 (“Bulletin”) states (emphasis added):

Previous guidelines could be interpreted to strictly apply the maximum hourly rates as the maximum payable for attendant care services, rather than using the hourly rates to calculate a monthly benefit as was originally intended.

13Subsequently, a s. 42(3) of the Schedule fixes the Monthly ACB as the upper limit for payment purposes. The Guideline obligates the insurer as follows: (emphasis added):

Once a notice to the insured person has been issued pursuant to s. 42(3) or s. 42(13) of the SABS, insurers shall use the resulting monthly attendant care benefit amount to pay the benefit.

The application for ACBs and the Minutes of Settlement

14On May 14, 2024, Allison O’Neill, occupational therapist, determined the applicant’s Total Assessed Monthly ACB amount (“Monthly ACB”) to be $1,756.19, in accordance with the calculations set out in the Form-1. On June 10, 2023, an insurer’s occupational therapy assessor, Munirah Quraishi, assessed the Monthly ACB at $0.00.

15The applicant sought benefits in a prior application at the Tribunal which included a dispute relating to ACBs, as well as hearing aids in the amount of $10,635.00. The application was withdrawn on the basis of a settlement agreement between the parties, approving the Monthly ACB amount at $1,200.00, reflected in the Minutes of Settlement executed on July 11, 2024 (“Settlement Agreement”).

16The Settlement Agreement states:

Attendant care in the amount of $1200/month will be approved as the current Form 1 amount. Any Attendant Care services must be submitted to the insurer and are subject to the definition of "incurred" under the SABS.

17Accordingly, the Form-1 dated May 14, 2024 was partially approved by the respondent in the amount of $1,200.00 on July 22, 2024. I note the unique circumstances before me that no Form-1 assesses the applicant’s ACB needs at $1,200.00 per month, and there is a lack of clear particulars before me as to which services, hours, or rates form the basis of the lump sum agreed to by the parties.

18After entering into the Settlement Agreement, the respondent formally confirmed the approval by way of a s. 42 (3) notice dated July 22, 2024:

This letter is the insurer’s notice as required by Section 42 (3) of the Statutory Accident Benefits Schedule, that your application for attendant care benefits is approved at a maximum of $1200.00 per month in Attendant Care expenses, as per our written agreement.

Applicant’s incurred ACBs and the respondent’s denials

19Three OCF-6s for ACBs were submitted by the applicant and partially approved by the respondent. The partial denials before me arise from the respondent applying the Guideline rates to invoices for incurred ACBs and denying any amounts in excess of these calculations. For reasons that follow, here are my findings on the issues in dispute.

20On October 7, 2024, the applicant submitted an OCF-6 in the amount of $1,204.00 with no HST charged. On October 28, 2024, the respondent partially approved it in the amount of $852.04. Although the applicant seeks a further payment of $351.96, that would bring the pre-tax total above the approved Monthly ACB of $1,200.00. Accordingly, I find that the applicant is entitled to $347.96 ($1,200.00 less $852.04 previously approved).

21On November 5, 2024, the applicant submitted an OCF-6 in the amount of $1,360.52, representing $1,204.00 plus $156.52 in HST. On November 14, 2024. The respondent partially approved it in the amount of $387.13. On April 10, 2025, the respondent provided notice that the total approved regarding this expense was $708.36 ($626.87 + $81.49 HST). This leaves $652.16 but the applicant seeks a further payment of $652.20 based on the issue as listed above. In any case, that would bring the pre-tax total above the approved Monthly ACB of $1,200.00. Accordingly, I find that the applicant is entitled to $647.64. This amount represents $573.13, plus applicable taxes ($1,200.00 less $626.87 previously approved).

22On January 8, 2025, the applicant submitted an OCF-6 in the amount of $221.48 representing $196.00 plus $25.48 in HST. On April 10, 2025, the respondent partially approved it in the amount of $114.81 plus $14.93 HST, for a total of $129.74. I find that the applicant is entitled to $91.74 inclusive of HST ($221.48 less $129.74 previously approved).

Positions of the parties and the scope of the ACB dispute

23For clarity, the parties do not contest whether the attendant‑care expenses were reasonable, necessary or incurred under the Schedule, except that the respondent opposes the billed rates above the Guideline maximums. Read liberally, the partial denials suggest the respondent’s position that rates exceeding the Guideline are not reasonable and necessary because they are beyond its asserted statutory maximum liability. Reading the respondent’s submissions broadly or narrowly does not change my decision because I ultimately address the contested elements of this dispute guided by submissions reviewed below.

24The applicant argues that the respondent is liable to pay up to $1,200.00 in incurred ACBs per month under the Settlement Agreement. The applicant further submits that the Guideline’s maximum rates are not to be applied as a per-invoice cap on payment of otherwise reasonable, necessary and incurred ACB expenses. Accordingly, once the Monthly ACB has been determined to be $1,200.00 under the Settlement Agreement, the applicant’s position is that the respondent’s duty to pay leans towards an objective exercise where it receives an invoice for incurred services and makes a payment, so long as payments do not exceed $1,200.00 per month. The applicant also argues that the respondent did not advance a substantive challenge to the incurred services, hours, or rates charged and therefore this dispute does not require a detailed reasonable and necessary analysis of those uncontested particulars. The applicant primarily focuses on contesting the respondent’s principal argument as to the statutory limit on its liability in light of the Settlement Agreement and the January 2018 Guideline.

25The respondent maintains that the Settlement Agreement is not an agreement to pay in the sense argued by the applicant. Rather, upon receipt of an invoice, it will strictly apply the Guideline rates to the incurred services and limit its liability accordingly. The respondent submits that the Guideline rates establish its maximum statutory liability for payment, and the Tribunal does not have jurisdiction to order payment above the Guideline rates, even in light of the Settlement Agreement establishing a $1,200.00 Monthly ACB. In addition to prior denials, on April 10, 2025, the respondent provided further notices addressing the OCF-6s in dispute. This correspondence stated that the respondent is relying on Malitskiy as its foundation to pay only the maximum hourly rates as set out in the Guideline.

26The parties have framed the dispute primarily as one about interpretation of the Settlement Agreement, statutory limits on liability, and the Tribunal’s jurisdiction to order payment above the January 2018 Guideline rates. In my view, the dispute arises under s. 19 of the Schedule but is confined to contesting payment of invoices based on statutory limits on the respondent’s liability. Accordingly, it not necessary to complete a detailed, item‑by‑item review of the services, hours, or rates because those details are not otherwise contested by the parties. The parties did not lead particulars as to which services and hours underpin the $1,200.00 Monthly ACB approval. The Settlement Agreement and s. 42(3) notice drafted by the respondent are silent on those particulars. There is no dispute before me as to whether the OCF-6 amounts were incurred or whether the applicant provided sufficient information to process payments for the invoices. Accordingly, I do not address those particulars.

Interpreting the Settlement Agreement

27The applicant argues that the Settlement Agreement, drafted by the respondent, does not include any terms limiting its liability to pay for ACBs up to $1,200.00 except that the ACBs are incurred. The applicant submits that the agreement is a contract and subject to general law governing contracts and the hourly rates in the Guideline do not form part of the contract in limiting the respondent’s liability.

28The respondent argues that where the Settlement Agreement is silent on hourly rates, the Guideline must govern. I agree because the agreement is clear that the applicant must submit ACB expenses and meet the definition of incurred under the Schedule. The Form-1 and the Schedule are clearly incorporated by reference into the Settlement Agreement. Therefore, to resolve this dispute and any ambiguity in the Settlement Agreement, it would be most appropriate to interpret the question of the extent of its liability in light of the Schedule and by extension, any applicable Guidelines directly addressing this question. In my view this is the appropriate approach.

29I find that the intention of the parties was to approve $1,200.00, as if it had been calculated in accordance with the Guideline and Form-1, as the Monthly ACB amount. This is supported by the clear language in the Settlement Agreement stating that “Attendant care in the amount of $1200/month will be approved as the current Form 1 amount.” This interpretation is further supported by the respondent subsequently providing a notice under s. 42(3) of the Schedule formally confirming the approval as if it was approving a Form-1.

Analysis of the respondent’s liability and the Tribunal’s jurisdiction

30The respondent argues that Malitskiy remains binding and confirms that an insurer cannot be compelled to pay an hourly rate higher than the Guideline rate. The applicant distinguishes the case from the dispute before me. In Malitskiy, the Divisional Court applied the June 2010 Guideline to a March 2014 accident, whereas the dispute before me concerns the application of the January 2018 Guideline to a December 2022 accident. The parties did not cite any other binding authority interpreting the January 2018 Guideline.

31The June 2010 Guideline expressly framed the Guideline as establishing an insurer’s maximum expense or liability in its stated purpose:

This Guideline establishes the maximum expense that automobile insurers are liable to pay under the SABS related to attendant care services applies in respect of accidents that occur on or after September 1, 2010.

32The June 2010 Guideline contained clear limiting language, relied upon by the Divisional Court at paragraphs 39 and 41 in Malitskiy, that is not present in the January 2018 Guideline:

Automobile insurers are not liable to pay for expenses related to attendant care costs rendered to an insured person that exceed the maximum hourly rates.

33The omission of the limiting language from the 2018 Guideline is material and supports the applicant’s position that the updated Guideline no longer endorses a strict application of Guideline rates to determine the respondent’s liability to pay for incurred ACBs.

34Read as a whole, the January 2018 Guideline establishes maximum hourly rates for use in calculating a Monthly ACB amount using a Form‑1 explicitly stated in its purpose, while addressing insurer liability separately:

Once a notice to the insured person has been issued pursuant to s. 42(3) or s. 42(13) of the SABS, insurers shall use the resulting monthly attendant care benefit amount to pay the benefit.

35In this case the Monthly ACB was fixed by the parties’ Settlement Agreement and confirmed by the respondent’s s. 42(3) notice dated July 22, 2024. While I have considered the Schedule and 2018 Guideline incorporated into s. 19(2)(a) of the Schedule primarily, the Bulletin provides context for interpretation. In my view, the Bulletin further supports the interpretation of the January 2018 Guideline having moved away from language that had been read to require strict application of maximum hourly rates as the statutory limit on insurer liability.

36The respondent contends it cannot be compelled to pay hourly rates above the Guideline rates and that the Tribunal “has no authority to order such a thing,” relying on prior Tribunal decisions that preclude orders above a statutory maximum. Those Tribunal decisions are not binding on me and do not constrain my interpretation on the facts before me. Importantly, the respondent has not established that its liability to make payment towards invoices for incurred ACBs is capped by the Guideline hourly rates, which the Guideline contemplates primarily as a tool for calculating a Monthly ACB amount rather than as an absolute bar for purposes of paying invoices. In my view, section 19(2)(a) is a calculation provision that authorizes the use of maximum hourly rates to calculate a Monthly ACB amount on the Form‑1 and does not explicitly operate as a limit to the respondent’s liability on a per-invoice basis. My authority to interpret the Schedule and Guideline is broad, subject to statutory limits. Considering the January 2018 Guideline and with secondary interpretive assistance from the language in the Bulletin, together with the removal of the earlier restrictive wording relied on in Malitskiy, I do not accept the respondent’s characterization of the hourly rates as the statutory limit on its liability.

37I find that the Schedule and the January 2018 Guideline are clear that the hourly rates are used to calculate a Monthly ACB amount for the purpose of payment of reasonable and necessary incurred expenses. That amount is $1,200.00, as fixed by the Settlement Agreement and confirmed by the respondent’s formal s. 42(3) notice. The provider billed at a rate of $38.50 per hour, which exceeds the Guideline rates used to calculate the monthly amount however that rate was not otherwise challenged on grounds of reasonableness or necessity and therefore does not alter the application of the Monthly ACB fixed by the Settlement Agreement and confirmed by the s. 42(3) notice. Once the Monthly ACB amount is established by a s. 42 notice, the respondent was required to use that resulting monthly amount to pay for reasonable and necessary ACB expenses incurred. I find that the respondent’s policy of paying incurred ACBs only up to the hourly rates used to calculate the Form‑1 Monthly ACB amount is not supported by the Schedule or the January 2018 Guideline. Where the prior explicit limit to the respondent’s liability has been removed, I should not read a limit into the Schedule or Guideline.

38I have considered the Divisional Court’s policy context in paragraph 42 of Malitskiy, namely that the Schedule is a partial no‑fault regime designed to provide some early compensation while containing costs. It does not necessarily guarantee full compensation for every expense. That policy context informs my interpretation and application of the statutory text and the administrative mechanics established by the Schedule and the 2018 Guideline. The substantive safeguards of the Schedule remain undisturbed: expenses must be actually incurred and must be reasonable and necessary. The Settlement Agreement incorporates those requirements and the respondent’s s. 42(3) notice formally fixed a Monthly ACB for payment purposes. For these reasons, applying the Monthly ACB as fixed by the parties and confirmed by the s. 42(3) notice does not produce an impermissible windfall to the applicant and is consistent with the policy objectives identified by the Divisional Court. In this case, the applicant is not fully compensated for incurred ACBs in this case as applied at paragraphs 20-21 of this decision.

39Having focused my analysis on the contested particulars, I find the ACB expenses incurred are reasonable and necessary because they are within the respondent’s statutory limit on liability. The parties did not contest the disputed amounts being unreasonable or unnecessary in any other respect, and there is no dispute whether they were incurred. Accordingly, the disputed amounts are payable by the respondent, not exceeding $1,200.00 per month.

40For the reasons above, on a balance of probabilities, I find that the applicant is entitled to payment of $347.96, $643.74, and $91.74 for his OCF-6 expenses.

Interest

41The applicant is entitled to interest because it applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

42The 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.

43Under s. 10 of Reg. 664, the Tribunal may award up to 50 per cent of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

44The applicant argues that the respondent’s breach of contract violates its duty of good faith and undermines the public interest in encouraging settlement and resolving disputes. The applicant argues that the respondent’s conduct in breaching the Settlement Agreement is underhanded.

45The respondent argues that applying differing interpretations, even if found to be incorrect, does not amount to conduct that attracts an award.

46The Settlement Agreement designated a Monthly ACB amount and did not directly address the respondent’s liability, or whether the Guideline rates would be strictly applied to the incurred expenses on a per-invoice basis. I find that applying differing interpretations does not amount to unreasonable conduct attracting an award.

ORDER

47For the reasons above, I make the following orders:

i. The applicant is entitled to payment of $347.96, $647.64, and $91.74 for his OCF-6 expenses, plus interest on overdue benefits pursuant to s. 51 of the Schedule.

ii. The respondent is not liable to pay an award.