Licence Appeal Tribunal File Number: 24-014153/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:
Tyrone Saunders
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Steve Gilchrist
APPEARANCES:
For the Applicant:
Ian Furlong, Counsel
Allahnah Karmali, Counsel
For the Respondent:
Peter Yoo, Counsel
Jaclyn Kram, Counsel
Court Reporters:
Elena Bell, Victory Verbatim
Sam Martin, Victory Verbatim
HEARD: by Videoconference:
September 29 and October 1, 2025
OVERVIEW
1Tyrone Saunders, the applicant, was involved in an automobile accident on July 22, 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.
2The applicant has been deemed to be catastrophically impaired, as a result of the injuries incurred in the automobile accident. He suffered the amputation of his left leg, multiple injuries to his right leg and head. After spending almost one month undergoing treatment for those injuries at St Michael’s Hospital, he was transferred St. John’s Rehabilitation Hospital for further recuperation on August 17, 2023. At the time of his discharge from St. John’s, in November 2023, the insurance company deemed a senior’s retirement home to be the most appropriate location for housing someone with his level of impairment. After one year spent at the retirement home, the applicant requested, and received, approval to move to a wheelchair accessible, one-bedroom unit located on the 7th floor of an apartment building.
ISSUES IN DISPUTE
3Preliminary Issue:
i. Is the applicant barred from proceeding to a hearing for the following benefit: Home Modification because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?
ii. Is the application dismissed due to the applicant’s failure to attend a properly scheduled Examination Under Oath (“EUO”) pursuant to s. 33(2) of the Schedule?
4Substantive issues: The issues to be decided in the hearing are:
i. Is the applicant entitled to $607,445.00 for home modifications, proposed by Auxillium Wellness/Adapt-Able Design Group in a treatment plan/OCF- 18 (“plan”) dated November 22, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant withdrew the following issue listed in the case conference:
i. Is the applicant entitled to $1,081.40 for occupational therapy, proposed by Auxillium Wellness in a plan dated January 10, 2025?
5The preliminary issue 3(ii) was added by Motion Order dated September 29, 2025 and has been added to the issues above accordingly.
RESULT
6After considering the submissions of the parties, I find:
i. The applicant is not barred from proceeding to a hearing on the issue of home modifications because of a failure to attend an IE pursuant to s. 44;
ii. The application is not dismissed due to failure to attend an EUO;
iii. The applicant is not entitled to $607,445 for home modifications;
iv. The respondent is not liable to pay an award under s.10 of Reg. 664; and,
v. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
PRELIMINARY ISSUES
Is the applicant barred from proceeding to a hearing due to a failure to attend an insurer’s examination under s. 44 of the Schedule?
4Although listed as in issue in dispute in the CCRO, the respondent did not address this issue at the hearing. Therefore, I find the respondent has not met its onus and the applicant is not barred pursuant to s. 44.
Is the application dismissed due to the applicant’s failure to attend an EUO?
5The respondent brought a motion for an Order dismissing the Tribunal application due to the applicant’s failure to attend a properly scheduled Examination Under Oath (“EUO”) pursuant to Section 33(2) of the Schedule. In the alternative, the respondent seeks an Order finding the applicant is not entitled to any payment of benefits including the benefits in dispute in the Tribunal application and hearing for failing to attend at a properly scheduled EUO.
6Both parties made submissions on the issue. After considering those submissions, I rendered an oral decision to the parties and provided them with my reasons for the decision. I made a commitment to include those reasons in the written decision.
7First, the respondent was within his rights, under s.33(2) to issue a request for an EUO and the applicant was obligated, under the Schedule, to attend that EUO. I am satisfied that the timing of the EUO request was reasonable and the content of the correspondence to the applicant’s counsel on July 3, 2025 met the requirements of s. 33(4).
8The applicant has raised, as a defense, the fact that the applicant submitted a signed statement to an employee of TD Insurance, on October 10, 2023, and has suggested that this qualifies as the equivalent to the EUO requested by the respondent. Applicant’s counsel further suggests that this statement was made while the applicant was still in hospital recovering from his injury.
9The applicant has not pointed me to any authority for their argument that a written statement would suffice as an alternative to an insurer’s request for an EUO and the justification for the non-attendance does not meet the requirement of a “reasonable explanation”.
10Accordingly, I find that the respondent made a proper request for an EUO under s.33(2). However, the Schedule does not provide that a dismissal of an application is a potential penalty for non-compliance by the applicant. Instead, the only penalty attendant to this breach can be found in s. 33(6) which states:
i. (6) The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2) O. Reg. 34/10, s. 33 (6).
11The motion doesn’t fall within the reasons for termination found in s.33 or in the restriction on proceedings.
12The motion by the respondent is denied.
PROCEDURAL ISSUE
13The respondent brought a motion to be able to file and rely on a book of authorities at the commencement of the hearing.
14The Case Conference Report and Order (“CCRO”) provided a deadline of 21 days before the hearing for the parties to provide a brief containing the evidence and authorities the parties intend to rely on at the hearing. Neither party had served and filed a Book of Authorities in advance of the hearing.
15At the conclusion of the hearing, the applicant requested the same opportunity to file a book of authorities. The respondent objected to this motion, claiming that the applicant had an obligation to produce it no later than the commencement of the hearing.
16In his submission, the applicant cited two authorities, one of which was a duplicate of an authority cited in the respondent’s book of authorities. The facts in the one case exclusively provided by the applicant, 17-001681 v Motor Vehicle Accident Claims Fund, 2018 CanLII 112134 (ON LAT), are dissimilar, save and except for the consideration of precedents which reinforce the need for flexibility in defining “existing home”. The precedents cited in that case are not in dispute and were considered in arriving at a decision in this case.
17The motion to file books of authorities by both parties is granted.
ANALYSIS
Home Modification
18I find the applicant is not entitled to $607,445 for home modifications.
19The treatment plan in dispute was authored by Ms Donyanaz Afgo Ahmadi, RN (“RN Ahmadi”) and Occupational Therapist Remik Zakrzewski (“OT Zakrzewski”). The goals of the treatment plan (OCF-18) were to “create a housing solution more practical than modifying existing” and to “redirect housing benefit $607,445.00 as per SABS 16.1(i) and 16.4b and c”.
20The applicant submits that his mother’s residence was his “existing home” as referenced in s. 16.1 of the Schedule. At the instigation of OT Zakrzewski, a “Home Accessibility Report” (“HAR”) for the residence of the applicant’s mother was prepared by David Wallace of the Adapt-Able Design Group. This HAR formed the basis of the treatment plan which is in dispute.
21Their evidence and that of the applicant, is the practical implications of those goals of the treatment plan was that the applicant required accommodations which featured:
i. Ground floor access
ii. Complete accessibility, externally and internally
22The HAR included a number of significant renovations, including the addition of an elevator, the widening of all doors, the complete renovation of the kitchen and a washroom to make them wheelchair accessible and the construction of two exits from the house, at grade. Mr. Wallace estimated the total cost of the renovations to be $607,245.00. I note that the amount indicated in the HAR does not match the amount claimed in the OCF-18 or listed in the CCRO. For the purposes of this decision, I will continue to use the $607,445.00 listed in the CCRO.
23Within the total, Mr. Wallace identified certain categories for the expenses which would be incurred in renovating the mother’s residence. A break-down of the expenses, found at page 120, Tab 1A of the Joint Document Brief included:
- Construction
Addition and interior mod’s including the bathroom, Mr. Saunders’ bedroom, laundry room, utility room, multi-purpose, area, kitchen, foyer, and living area $340,000
Exterior modifications including the wood ramp and porch, concrete landing and staircase, rear door and patio 30,000
24Mr. Wallace stated that the configuration of the mother’s house would not allow for the some of the modifications required to meet all the applicant’s accessibility goals, including “the addition of an attached garage”
25Mr. Wallace indicated that, based on his experience, the sort of renovations proposed in his HAR would not receive municipal approval. “… given the multi-level home, the expected zoning issues, the fact that protected access cannot be provided, and given that this is a rental townhouse, upon request, the Adapt-Able Design Group would be pleased to complete an alternative housing report to provide Mr. Saunders with a more suitable immediate and long-term housing solution.“
26During her examination in chief, RN Ahmadi testified that, while the applicant was recovering at St. John’s Hospital, it was deemed that he could not use steps so he must be discharged to a living space with everything on one floor.
27In his testimony, the applicant and RN Ahmadi noted two other goals which weren’t expressly outlined in the treatment plan but formed part of their rationale in justifying the need for an alternative to his current accommodations, namely:
i. Three bedrooms – one for the applicant, one for a personal support worker (“PSW”) and one for the applicant’s two children.
ii. Geographic proximity to the balance of his family, particularly the residence of his daughters at his girlfriend’s apartment.
28The Respondent submits that the treatment plan in dispute is neither reasonable nor necessary for the following reasons:
i. The residence sought to be modified does not qualify as the applicant’s “existing home” for the purposes of section 16 of the Schedule
ii. whether an “existing home” for the purposes of section 16 of the Schedule can actually be modified is not relevant to the determination of the respondent’s cost obligations under section 16(3)(i) or 16(4)(c)
iii. the HAR being relied upon by the applicant does not provide sufficient particulars to justify the costs of the modifications being sought
iv. the recommendation in the Treatment Plan that the modification costs be “redirected” to the purchase of a new home is neither reasonable nor necessary, since there is no evidence supporting that the modifications could not be carried out on the residence in question (the applicant’s mother’s townhouse).
29In consideration of the arguments advanced by the parties and to determine whether the treatment plan is reasonable and necessary the primary question which must be answered is is the applicant’s mother’s house his “existing house” for the purposes of s.16 of the Schedule?
Does the residence sought to be modified qualify as the Applicant’s “existing home” for the purposes of section 16 of the Schedule?
30Section 16 (1) provides that the insurer shall pay for rehabilitation benefits for all reasonable and necessary expenses for the purpose of reducing or eliminating the effects of any disability resulting from an impairment. Section 16 (3) (i) states that the insurer shall pay for 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 than to renovate his or her existing home.
31The definition described in subsection (3) includes: (i) home modifications and home devices, including communications 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 his or her existing home. This is to be read in conjunction with sections 16(4)(b) and (c), which provide that an insurer is not liable to pay rehabilitation benefits:
(b) for expenses incurred to renovate the insured person’s home if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living;
(c) for the purchase of a new home in excess of the value of the renovations to the insured person’s existing home that would be required to accommodate the needs of the insured person
32Notably, the Schedule does not define “existing home” but Tribunal and Court decisions provide guidance to me in terms of how to interpret that term.
33The respondent cited J.S. v. Guarantee Company of North America, 2011 ONFSCDRS 70wherein it was held that the “existing home” was the home that the applicant was living in with his family at the time of the accident, and not the home that the applicant and his family moved into following the accident. In that case, the applicant purchased another home, and it was held that the insurer’s contribution towards that new home was limited to the costs of renovating the home where the applicant was residing at the time of the accident.
34Both parties cited as an authority Vanden Berg-Rosentha v. Motor Vehicle Accident Claims Fund, 2007 ONFSCDRS 95. In that decision, Adjudicator Rogers found:
There is no definition of "existing home" in the Schedule…The 1994 Schedule does not indicate the point in time to which the word "existing" refers. The term may mean an insured's home at the time of the accident, at the time of the hearing, or some other point in time. An insured may potentially have more than one "existing home" over time. Which home is the insured's "existing home" depends on the particular facts of the case.
35The applicant relies on this decision as it supports his position that the “existing home” should be given a broad and liberal interpretation to allow the applicant flexibility to choose where to live. The decision highlights an earlier FSCO decision, Susan Cole v. Allstate Insurance Company of Canada, 1996 ONICDRG 10, in which the arbitrator finds that the Schedule does not set out a specific time period to define “existing home”. It may mean an insured’s home at the time of the accident, at the hearing, or some other point in time.
36The Schedule and these decisions suggest the need for a broad and liberal interpretation to allow flexibility in where the applicant chooses to designate his residence but that flexibility is subject to the facts of each case.
37The applicant testified that he had lived at his mother’s house in Scarborough while attending high school but, after graduating, his relationship with his mother had become strained and he had moved out to live with his stepfather.
38The evidence relating to the residency of the applicant, at the time of the accident, begins with a statutory declaration made by the applicant on October 10, 2023 while he was recuperating in the hospital. This declaration predates the OCF-18 requesting the home modification benefit and it supports the premise that the applicant had left his mother’s home and moved in with his stepfather.
39In that declaration, the applicant asserts that, for the two years prior to the accident, he had lived in the apartment of his stepfather, for which access he paid $420 per month in rent. In the six months prior to the accident, he claimed he had spent 75% of the time at the apartment of his girlfriend and 25% of the time with his stepfather. In that signed declaration, the only mention of his mother’s house is the assertion by the applicant that he uses her address as his mailing address. Consistent with that assertion, the mother’s address is used for the applicant’s contact information recorded on the statement.
40The applicants submits that the noting of the mother’s address is proof of the applicant’s residency there, but that claim is not supported by any of the commentary, within the statement. I do not find the applicant’s testimony that he “missed” noting time spent at his mother’s house to be credible, as his commentary in the statement provided very specific details about his living circumstances which added up to 100% of his time.
41The applicant underwent two assessments by OT Zakrzewski in the month prior to the submission of the OCF-18 requesting the home modifications. In both his Assessment of Homecare Needs, on October 6, 2023, and his Hospital Discharge Report, on October 13, 2023, OT Zakrzewski notes that applicant indicated that he was living with his stepfather, prior to the accident.
42In his occupational therapy assessment on July 29, 2025, occupational therapist Atul Kaul (“OT Kaul”) recorded that the applicant stated he had never lived with his mother, prior to the accident, and had no intention of doing so, after the accident.
43In his testimony, the applicant was unable to provide a credible explanation for the discrepancy between his current claim that he lived with his mother and with the comments recorded by OT Zakrzewski and OT Kaul. I don’t find it credible that both those assessors, including his own treating OT, would have coincidentally made the same mistake. This is particularly true with OT Zakrzewski who, only one month after his Hospital Discharge Report, was the author, along with the applicant’s case manager,RN Ahmadi, of the OCF-18 that is in dispute at this hearing.
44During her cross-examination, RN Ahmadi admitted that she was never shown any document that supported the suggestion that the applicant lived at his mother’s home, at the time of the accident. RN Ahmadi testified that, on the contrary, it was her understanding that the applicant lived with his stepfather.
45In his testimony, David Wallace indicated he received a referral from OT Zakrzewski to do an assessment solely of the mother’s apartment. He testified that his knowledge of the applicant’s physical condition came from an oral conversation with OT Zakrzewski and, possibly, the applicant’s case manager, RN Ahmadi, and he had no first-hand knowledge of the applicant’s actual residence. Under cross-examination, Mr. Wallace confirmed that he had been shown no evidence that supported the position that the applicant lived at the home he was asked to assess.
46In his closing statement, the applicant’s counsel suggested that it is not unusual for an adult child to leave home and then come back, often repeatedly, and that, if the applicant has any home, it is where his brothers and mother reside. The evidence at the hearing, though, was that the applicant indicated that the stepfather was the only male role model in his life and the applicant continued to pay the rental cost of the stepfather’s apartment up to the time of the accident.
47Both parties agreed that the success of the claim for the home modifications rested, primarily, on the determination of whether the premises claimed, for the purpose of the home modification cost estimate, truly constitutes the “existing home” of the applicant.
48Under cross-examination, in response to the question as to why the renovations recommended by Mr. Wallace weren’t pursued, RH Ahmadi stated that, with rental units, "renovations are always denied”.
49In other words, despite being the co-author of the OCF-18 requesting the funds for home modifications, her testimony is that she knew rental accommodations, such as the mother’s home, could not be modified to accommodate the requirement of the treatment plan and that she had no first-hand knowledge of whether it was the home in which the applicant lived at the time of the accident.
50Even in the context of previous decisions which dealt with the definition of an “existing home”, it is unreasonable to consider the mother’s home as an option, given that the evidence of the author of the HAR notes that its physical layout renders it incapable of meeting the requirements of the treatment plan. More importantly, all the evidence clearly shows the applicant has lived in other apartments, for at least two years prior to the accident and that, prior to the accident, he had no intention of returning to his mother’s home.
51I am satisfied on a balance of probabilities that the evidence before me proves that the mother’s home was not the “existing home” of the applicant at the time of the accident.
Can the funds proposed for the renovation of the mother’s home be held in trust?
52In the OCF-18 submitted on November 22, 2023, the applicant requested that, instead of being used for renovations at the mother’s house, the estimated value of the repairs should be placed in trust for the applicant for the purpose of some future purchase of an appropriately accessible home.
53He stated that the goals of this reallocation were to “create housing solution more practical than modifying existing” and “redirect housing benefit $607,245.00 as per SABS 16.1(i),16.4b&c”.
54During her examination in chief, RN Ahmadi testified that, as the person preparing the applicant’s discharge plan from St. John’s Hospital, she met with all the treating parties and the applicant’s mother and determined the mother’s house was inappropriate as his bedroom was in the basement of the home and that floor had no bathroom.
55During cross-examination, RN Ahmadi was asked on what basis the value of the renovations proposed for the mother’s house could be “redirected” and be held in trust by the applicant, pending the identification of appropriate replacement accommodations. She said because the repairs couldn’t be done at the mother’s home, the redirection was “an option”. She admitted she knew of no basis, under the Schedule, for such a redirection and stated she “just put it out there”.
56The respondent argued that the payment of funds in trust is not reasonable or necessary and that there is nothing in the Schedule which permits such a payment.
57I agree there is nothing in the Schedule which provides for the alternative funding scheme proposed in the OCF-18 in Issue 1, so there is no authority for me to create such a benefit for the applicant, where none was provided for by the Legislature.
58For these reasons, I find on a balance of probabilities that the applicant is not entitled to the treatment plan for $607,445.00 for home modifications.
AWARD
59The applicant is not entitled to an award under s. 10 of Reg. 664.
60Under s. 10 of Reg. 664, the Tribunal may award up to 50% 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.
61The applicant submits that the respondent continues to uphold the denial of the OCF-18 in the amount of $607,445.00. The applicant is relying on the Hospital Discharge and attendant care needs reports of OT Zakrzewski and the ortho-paedic assessment by Dr. Getahun to justify the legitimacy of the OCF-18 claim.
62The respondent has denied there was a delay in the payment of any legitimate claims and is relying on the evidence in the medical reports by its assessors.
63After consideration of the issue and having determined that the applicant is not entitled to the home modification benefit he claimed, he is, therefore, not entitled to an award as there is no benefit that has been unreasonably withheld or delayed.
INTEREST
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the applicant is not entitled to interest.
ORDER
65The Tribunal orders:
i. The applicant is not barred from proceeding to a hearing on the issue of home modifications because of a failure to attend an IE pursuant to s. 44.
ii. The application is not dismissed due to failure to attend an EUO.
iii. The applicant is not entitled to $607,445.00 for home modifications.
iv. The applicant is not entitled to an award under s.10 of Reg 664.
v. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.
Released: January 30, 2026
__________________________
Steve Gilchrist
Adjudicator