CITATION: Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603
DIVISIONAL COURT FILE NO.: 499/20
DATE: 20210629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Pattillo and Lederer JJ.
BETWEEN:
SERGEY MALITSKIY
Gary Mazin and Manreet Pabla, for the
Appellant
Appellant
– and –
UNICA INSURANCE INC. and LICENCE
Jamie R. Pollack and Amanda M. Lennox,
APPEAL TRIBUNAL
for the Respondent Unica Insurance Inc.
Valerie Crystal, for the Respondent Licence
Respondents
Appeal Tribunal
HEARD: January 28, 2021
Lederer, J.
Introduction
[1] On March 16, 2014, the Appellant, Sergey Malitskiy, was in a motor vehicle accident. He suffered significant physical, psychological and cognitive injuries including a traumatic brain injury and multiple fractures. During February 2017, his accident benefits insurer, the Respondent, Unica Insurance Inc. determined that Sergey Malitskiy was catastrophically impaired.
[2] On October 25, 2018, the Appellant commenced an application to the Licence Appeal Tribunal for medical and rehabilitation benefits including costs of attendant care, costs of modifications to his home, cost of certain examinations and a “special award” as permitted by the regulations respecting automobile insurance. Beginning on July 15, 2019, a seven-day hearing was held before Adjudicator Nidhi Punyarthi. On January 2, 2020 Adjudicator Punyarthi released her decision. She determined that the Appellant was entitled to all the attendant care benefits he had incurred up to a maximum of $6,000 per month; the total cost of all modifications to his home, including an elevator and therapy room; costs of an assessment of his housing needs; interest and a special award amounting to 25% of the portions of the attendant care benefits and the home modifications that had been denied.
[3] The Licence Appeal Tribunal is empowered to make rules that govern its proceedings.[^1] It has done so. Included in the Common Rules of Practice & Procedure of the Licence Appeal Tribunal[^2] is provision for the reconsideration of decisions the Tribunal has made.[^3] In this case, the Respondent, Unica Insurance Inc., requested reconsideration of the decision of Adjudicator Punyarthi. Unica had two concerns. The first was with the award made in respect of attendant care services. When the maximum monthly award of $6,000 was divided by the number of hours of attendant care that had been provided the hourly rate ranged from $25.00 to $35.00. This was well in excess of the maximum values provided by the applicable guidelines. Did the Tribunal have the jurisdiction to make an award, the effect of which was to exceed the hourly rates prescribed by the Guideline authorized by the Statutory Accident Benefits Schedule? The second concern, for which Unica sought reconsideration, was the special award. As understood by Unica, Adjudicator Punyarthi had applied the wrong test when she determined that Sergey Malitskiy was entitled to that award. She “watered down” the threshold of what constitutes an unreasonable withholding or delay of benefit payments warranting a special award.
[4] The reconsideration was undertaken by Adjudicator Jesse A. Boyce. His decision was released on June 25, 2020. Adjudicator Boyce “granted” the reconsideration. He found in favour of Unica and against Sergey Malitskiy. It was an error for Adjudicators (in this case Adjudicator Punyarthi) “to simply order attendant care payable ‘up to’ the amount identified by the Tribunal… or…the amount identified by a specific section of the Schedule”[^4] As found by Adjudicator Boyce, the effective hourly rate and its relationship to the amounts specified in the Guideline have to be accounted for. He recalculated the entitlement of Sergey Malitskiy to payment for attendant care as $39,496.87, plus HST, less any amounts that had been paid by Unica.[^5] As for the “special award”, Adjudicator Boyce set that aside. “[T]he award was not supported by the evidence of Unica’s conduct, the reasons supporting the award were not sufficient to justify the magnitude of the award and the rationale provided significantly waters down the threshold of what constitutes unreasonable withholding and delay.”[^6]
Limits of the Appeal
[5] This is an appeal from the Reconsideration Decision of Adjudicator Boyce. The jurisdiction of the Court to hear the appeal is found in the Licence Appeal Tribunal Act[^7] s. 11:
11 (1) Subject to subsections (2) to (6), a party to a proceeding before the Tribunal relating to a matter under any of the following Acts may appeal from its decision or order to the Divisional Court in accordance with the rules of court:
Insurance Act
Such an appeal is limited:
11(6) An appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only.
[Emphasis added]
[6] The limited substance of this appeal is further demonstrated by understanding that the extent of the reconsideration of the decision of Adjudicator Punyarthi undertaken by Adjudicator Boyce was broader. It was governed by r. 18.2 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal:
18.2 CRITERIA FOR GRANTING RECONSIDERATION
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.[^8]
[Emphasis added: subsections (c) and (d) have no application to this case]
[7] It is important to recognize that the reconsideration can be undertaken without deference to the original decision:
Rule 18.4 provides in part that the Executive Chair may vary the decision of an adjudicator. This does not suggest a deferential standard of review.[^9]
[8] In reconsidering a previous decision, the Licence Appeal Tribunal is permitted, without deference, to set aside an error of law but also a finding of fact if the alteration would likely have caused the Tribunal to come to a different result and on that basis to vary a decision, set it aside or order a rehearing:
Upon reconsidering a decision of the Tribunal, the Tribunal may:
(a) Dismiss the request; or
(b) After providing responding parties an opportunity to make submissions,
(i) Confirm, vary or cancel the decision or order; or
(ii) Order a rehearing on all or part of the matter.
If the Tribunal orders a rehearing of the matter, the Tribunal may make any order that it could make following a case conference.[^10]
[9] The Court’s review of the Reconsideration Decision is narrower than the review required of Adjudicator Boyce in undertaking it. The question left to the Court is to determine whether Adjudicator Boyce erred in law in his conduct of, or the decision he made in furtherance of, the reconsideration of the decision of Adjudicator Punyarthi.
[10] I pause to note that the Appellant sees this differently. Relying on Rule 18 counsel submitted that a reconsideration is a review for only “significant” errors. He quotes another case where a Vice-Chair noted:
…only if the adjudicator’s decision is significantly in error should I interfere. If her decision shows no significant error, then it must be allowed to stand.[^11]
[11] The problem with that case and the submission is that they rely on an earlier version of Rule 18.2(b). That version is found in the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1, promulgated as of April 1, 2016. In that version Rule 18(2)(b) included the word “significant”, as follows:
The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
[Emphasis added]
[12] In the current version, the one that came into force during 2017 and is applicable to the case being considered, the word “significant” has been removed. The test to be applied is that where an error identified on a reconsideration would likely have caused the Tribunal to come to different conclusion the Tribunal is authorized to vary or cancel the decision or order. As noted by counsel for the Licence Appeal Tribunal, the amendment to the rule doesn’t change things that much. It provides the test that is to be applied in demonstrating that an error has the significance necessary to cause a reconsideration to succeed.
Standard of Review
[13] In Canada (Minister of Citizenship and Immigration) v. Vavilov[^12] the Supreme Court of Canada determined that “appellate standards of review” are to be applied on statutory appeals, in other words, on questions of law the applicable standard is “correctness”. As already reviewed, this is a statutory appeal. The Factum filed on behalf of Unica Insurance Inc. mistakenly refers to this proceeding as a Judicial Review.[^13] This has led counsel to submit that the appropriate standard of review is the presumptive standard of reasonableness. This ignores the clear expression to the contrary found in Vavilov:
The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision….[^14]
[14] The standard of review in this case is correctness. The issue is whether Adjudicator Boyce was incorrect in his understanding of the legal principles that had application to the matter before him. This is not a question of the propriety of the application of the facts of the case to those principles. That would be an issue of mixed fact and law and beyond the jurisdiction of the court.
Attendant Care
[15] In considering the award made on account of attendant care that was made by Adjudicator Punyarthi, Adjudicator Boyce referred to paragraph 34 of her (the original) decision.[^15] At that paragraph Adjudicator Punyarthi said:
I find that Mr. Malitskiy is entitled to the attendant care benefit from October 13, 2017 to date and ongoing up to the amount of $6,000 per month, less amounts already paid by Unica. An attendant care benefit in this monthly amount is reasonable and necessary given Mr. Malitskiy’s functional needs. Mr. Malitskiy is entitled to be paid the amounts that he has incurred in this regard, as long as they do not exceed the Schedule limit of $6,000 per month.
[16] As counsel for the Licence Appeal Tribunal noted there was nothing in the determination of Adjudicator Punyarthi that took account of the hourly rates charged, paid or calculable from the value of the benefit awarded or the hours spent by those who provided Sergey Malitskiy with attendant care. Rather her decision was driven by the limitation on the monthly benefit that could be awarded as imposed by the Statutory Accident Benefits Schedule at s. 19(3):
The amount of the attendant care benefit payable in respect of an insured person shall not exceed the amount determined under the following rules:
- If the optional medical, rehabilitation and attendant care benefit referred to in paragraph 4 of subsection 28(1) or the catastrophic impairment benefit referred to in paragraph 5 of subsection 28(1) has not been purchased and does not apply to the insured person, the amount of the attendant care benefit payable in respect of the insured person shall not exceed,
ii. $6,000 per month plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, if the insured person sustained a catastrophic impairment as a result of the accident.[^16]
[Emphasis added]
[17] Adjudicator Boyce, in conducting the reconsideration found this to be an error:
In my view, it is an error to simply look at the expense as presented on an invoice and order payment without a consideration of the number of hours of services received in relation to the hourly rates established on the Form-1 and/or by the Guideline. In a similar vein, it is [an] error to simply state that an insured is entitled to “up to $6000”, as the Tribunal did in this matter.[^17]
[18] In arriving at this conclusion, Adjudicator Boyce referred to and relied on the Statutory Accident Benefits Schedule, s. 19(2). He noted:
Indeed, a plain reading of s. 19(2) of the Schedule makes it clear that all the components required to calculate attendant care were not considered in the Tribunal’s decision as there is no discussion of the total number of hours per month of each type of care required or the hourly rate that was applied.[^18]
[19] The section of the Statutory Accident Benefits Schedule to which Adjudicator Boyce was referring, section 19(2), refers to the methodology for calculating the value of the attendant care benefit and makes direct reference to the participation of hourly rates. It says:
Subject to subsection (3), the amount of a monthly attendant care benefit is determined in accordance with the version of the document entitled “Assessment of Attendant Care Needs” that is required to be submitted under section 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.
[Emphasis added]
[20] The document referred to in the Statutory Accident Benefits Schedule at s. 42 is entitled Assessment of Attendant Care Needs (Form 1) and is the means by which an application for attendant care benefits is made:
42 (1) Subject to subsection (2), an application for attendant care benefits for an insured person must be,
(a) in the form of and contain the information required to be provided in the version of the document entitled “Assessment of Attendant Care Needs” that is approved by the Chief Executive Officer for use in connection with the claim; and
(b) prepared and submitted to the insurer by an occupational therapist or a registered nurse.
[21] What s. 19(2) makes plain is that a Form 1, in calculating the claim being made, is to multiply the hours of care by the hourly rate (which is not to exceed the maximum imposed by the applicable Guideline) to establish the value of the claim understanding that, in any event, it is not to be higher than the monthly maximum established by s. 19(3) of the Statutory Accident Benefits Schedule, in this case being $6,000. Adjudicator Punyarthi did not rely on or refer to the hourly rates referred to in the Guidelines and utilized in calculating the claim. She did nothing more than look at the total monthly amount being claimed and, it being slightly higher than the permitted maximum, limited the benefit to that maximum being $6,000 per month.
[22] The Appeal Book provided by the Appellant (Sergey Malitskiy) includes 3 different Form 1’s:
• one referencing an assessment undertaken on April 10, 2017, prepared by Fiana Kalp, identified on the form as an occupational therapist,[^19]
• a second one referencing an assessment undertaken on September 6, 2017 prepared by Ranya Ghatas also identified as an occupational therapist[^20] and
• a third one referencing an assessment undertaken on November 1, 2017 undertaken by Katrina Chalova also an occupational therapist.[^21]
[23] Each one is included with, or is part of, an “In-Home Attendant Care Assessment (or in the case of the one prepared by Katrina Chalova a ‘Re-Assessment’) Report”.[^22] Each of the second (Ranya Ghatas) and the third (Katrina Chalova) are shown as being further to the first (Fiana Kalp); that is to say they each refer to it as the “Last Assessment”). This may be explained by the fact that the second (Ranya Ghatas) was done on behalf of Unica whereas the third (Katrina Chalova) was for the Applicant, Sergey Malitskiy. It would seem the insurer and the Applicant each decided to follow up on the work undertaken by Fiana Kalb.
[24] The Form 1 is used “…to report the future needs for attendant care required by the applicant as a result of an automobile accident.” The form breaks attendant care into three levels: Level 1, attendant care is for routine personal care; Level 2, attendant care is for basic supervisory functions and Level 3, attendant care is for complex health/care and hygiene functions. The form is to be filled out by an occupational therapist or a registered nurse, referred to in the form as the Assessor. The Form 1 lists the activities included within each level. The Assessor is required to determine how many minutes each activity will take and how many times per week each activity should be performed and, from this, to calculate the number of minutes each week that will be needed for each of the three activity levels. Each assessment of minutes per week is divided by 60, thus determining the number of hours per week each activity level will take up. The resulting number of hours is then multiplied by 4.3 to arrive at the total hours required each month for each of the three levels of activity. The total number of hours for each of the three levels is then multiplied by an hourly rate[^23] and the results added together to develop a monthly value for the cost of attendant care.
[25] As referred to in section 19(2)(a), quoted above, the hourly rates used were not to exceed the maximum hourly rate, as established under the Guidelines, in this case the Guideline as it applied on the date of the accident in which Sergey Malitskiy was injured (March 16, 2014). This is Superintendent’s Guideline No. 03/10 (Attendant Care Hourly Rate Guideline) dated June 2010.[^24] Its purpose makes clear that the stated hourly rates are maximum rates:
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.
[Emphasis added]
[26] The rates imposed are:
• for Level 1 attendant care, $13.19
• for Level 2 attendant care, $10.25
• for Level 3 attendant care, $19.35
[27] These are the hourly rates used on each of the three Form 1’s to which these reasons refer.[^25]
[28] The resulting attendant care benefit for each of the Form 1’s was:
• $6,245.05 (Fiana Kalb),
• $1,199.10 (Ranya Ghatas) and
• $6,020.63 (Katrina Chalova).
[29] The “significant differences” between the Form 1 prepared by Fiana Kalb and the one prepared by Ranya Ghatas were identified by Adjudicator Punyarthi.[^26] She did not rely on the Form 1 prepared by Katrrina Chalova. The timing was such that its use was restricted and the circumstances such that she found the changes it suggested were not sufficient to warrant it being considered.[^27] She accepted the total monthly amount from the Form 1 prepared by Fiana Kalb but reduced the value of the claim to the maximum allowed, $6,000 per month.[^28]
[30] The problem arises because the decision made by the Licence Appeal Tribunal is an entitlement to be paid costs that are actually incurred. This arises from the Statutory Accident Benefits Schedule s. 19(3) para. 5:
Despite paragraphs 1, 2 and 3, if a person who provided attendant care services (the “attendant care provider”) to or for the insured person did so for remuneration, and the actual expenses incurred in respect of the attendant care services are lower than the amount of the monthly attendant care benefit as determined under subsection (2), the insurer shall only be liable for payment of the incurred expenses.
[31] In this case the invoices delivered demonstrated lower hours than proposed on the Form 1 prepared by Fiana Kalb. The actual hours invoiced were “closer to the lower number recommended in Ms. Ghatas’ Form 1”. [^29] The number of hours being lower but the value of the costs incurred being measured against an award of “up to” $6,000 per month led to the effective hourly rate claimed being higher than those used on the Form 1 and above the maximum rates allowed for in the Guideline. Counsel for the Appellant submits that “the hourly rates of $25.00 to $35.00 was accepted by Adjudicator Punyarthi.”[^30] It may be that these increased rates are the result of her decision but there is nothing to suggest she gave any consideration to the impact the reduced hours reflected in the invoices would have on the hourly rate to be paid within the $6,000 per month limit. There is no suggestion in her decision that she did any calculation or had any understanding of the impact of the lower hours on the hourly rate. The values of $25.00 to $35.00 identified by counsel are not mentioned in her reasons. She dealt with the lower number of hours by saying:
However, fewer invoiced hours do not necessarily mean that [S.M.] needs less assistance. I find that the CaringForU service providers were engaged in providing the very attendant care items that Ms. Ghatas had not recommended, such as overnight assistance, and support in the form of cuing and conversation.[^31]
[32] Adjudicator Boyce understood the issue:
S.M. submitted invoices which suggest that attendant care services were provided to him at rates between $20 and $35 per hour, which Unica argues is over and above the hourly rate prescribed on the Form-1 and identified in the Guideline. On review, I agree. The invoices further indicate that services were provided to S. M. at the usage of 92-108 hours per month depending on the month.[^32]
[33] The award allowed for the payment of attendant care at rates in excess of the Guideline and in excess of the direction in the Statutory Accident Benefits Schedule at s. 19(2). Adjudicator Boyce found:
However, the overarching fact remains that the hourly rates are mandatory and were in effect when S. M.’s accident occurred. Insurers are not liable to pay for expenses related to attendant care costs rendered to an insured person that exceed the maximum hourly rates set out in the Guideline.[^33]
Adjudicators presented with reliable evidence of incurred attendant care should, where practicable, determine the specific amount of attendant care that is payable under the Guideline’s mandatory rates. Where there is evidence of incurred attendant care, it is [an] error for adjudicators to simply order attendant care payable “up to” the amount identified by the Tribunal in the “issues” section or “up to” the amount identified by a specific section of the Schedule.[^34]
[34] It is self-evident that if the error had not been made the result would have been different:
Accordingly, having determined that the Tribunal erred in not calculating the quantum of attendant care incurred, it follows that this error, had not been made, would have resulted in a different outcome [sic].[^35]
[35] Adjudicator Boyce calculated the value of the change.
[36] Given the requirement of the Statutory Accident Benefits Schedule, particularly s. 19(2) and the hourly rates set as maximums set by the Guideline, it is difficult to see how it could be said that Adjudicator Boyce erred in his understanding of the law when he found that a proper calculation of the attendant care benefit includes as a factor the hourly rate and the requirement that it not exceed the maximum amount set by the applicable Guideline.
[37] Even so, counsel for the Appellant says he did. As counsel perceives it section 19(2) is narrow in its scope. It does nothing more than set the basis to calculate the monthly benefit. That value of the benefit having been set, the justification for payment (that is the number of hours for which payment is claimed and the hourly rates charged) need bear no relationship to the calculation on which the benefit was authorized. I do not accept this argument. Having been awarded a benefit of up to $6,000 per month the applicant would be free to spend the money, within the framework of attendant care, pretty much as he or she wishes or decides. In theory a recipient could use all the money on one aspect of his or her identified attendant care needs, at fewer hours and a higher rate. As suggested by counsel for the Appellant, the only remaining control would be the direction found in the introductory words of Statutory Accident Benefits Schedule s. 19(1):
- (1) Attendant care benefits shall pay for all reasonable and necessary expenses,
(a) that are incurred by or on behalf of the insured person as a result of the accident for services…
[Emphasis added]
[38] 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.
[39] The simple answer is in the clear words of the Guideline. Under the heading “Maximum Fees” it says:
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 set out below.
[Emphasis added][^36]
[40] Counsel for the Appellant submits that even this is not determinative. A new Guideline was introduced in 2018.[^37] It changes the maximum hourly rates as of April 14, 2018. It increases them for accidents that occurred after that date. The new 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. It explains the new Guideline. It confirms the purpose of the Guideline:
The Attendant Care Hourly Rate Guideline has been revised to require the maximum hourly rates set out in the guideline be used with the Assessment of Attendant Care Needs (Form 1) to calculate the monthly attendant care benefit in accordance with section 19(2) of the Statutory Accident Benefits Schedule -effective September 1, 2010 (SABS).
And then states:
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.[^38]
[41] This is taken by counsel for the Appellant as demonstrating that the earlier form of the Guideline, the one applicable to this case, could have been interpreted as indicating that the hourly rates it provided for represented the maximum that could be paid for attendant care services but that this was not what was intended. Counsel submitted that, as expressed in the Bulletin, the intention was that the hourly rates be used only to calculate the monthly benefit. I begin with this. The Guideline is clear and straightforward. I refer to the quotation above. Automobile insurers are not liable to pay for expenses related to attendant care costs that exceed the maximum hourly rates. The wording of a Bulletin, particularly one concerned with understanding the revised but inapplicable form of the Guideline, cannot set aside or overrule the words of the Guideline as it applies in this case, incorporated as it was, into the Statutory Accident Benefits Schedule through s. 19(2).
[42] Counsel for the Appellant goes on to submit that interpreting the Statutory Accident Benefits Schedule and the Guideline as Adjudicator Boyce has done is contrary to policy. How can it be that the Schedule only accounts for rates far below market value? Some history may be helpful. It used to be that those injured in accidents had to proceed through the tort system, including trial, before any compensation was received. The Statutory Accident Benefits Schedule reflects the continuing effort of the legislature to impose a partial no-fault regime to allow for some compensation to be paid at the outset. Over time there have been several iterations aimed at finding a balance that provides some speedy payment but, in company with, insurance rates that are not unreasonably high. The Statutory Accident Benefits Schedule is the current scheme in place to accomplish these goals. 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.
[43] Still with broader policy concerns, in his Factum counsel for the Appellant referred to and, in his submissions, introduced the idea that the treatment of the Appellant, as demonstrated through the reconsideration decision of Adjudicator Boyce, was not harmonious with the requirements of the Charter of Rights and Freedoms, s. 15 (Equality Rights). The proposition was that the Appellant was being discriminated against on account of his disability. The Court addressed the point. If the issue was to be dealt with, it had to be in the context of the entire scheme (the Statutory Accident Benefits Schedule). It was not possible to extricate the concerns of the Appellant from the scheme as a whole. Counsel did not proceed further with the submission.
[44] For the reasons reviewed, I find that Adjudicator Boyce did not err in law in setting aside and revising the amount to be paid on account of attendant care costs.
The Special Award
[45] I turn now to the second concern raised with respect to the reconsideration conducted by Adjudicator Boyce. That is his setting aside of the special award by which Adjudicator Punyarthi found that Sergey Malitskiy was entitled to the amount represented by 25% of the attendant care benefits and home modifications that had been denied. The jurisdiction to grant such an award is found in the regulations governing automobile insurance:
- If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.[^39]
[46] The test for what constitutes unreasonable behaviour is found in Plowright v. Wellington Insurance Co.:
“Unreasonable” behaviour by an insurer in withholding or delaying payments can be seen as behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.[^40]
[47] The Factum filed on behalf of the Appellant “concedes” that this is the applicable test.[^41] This is important because it is an acknowledgment of the legal principle that applies. As the Appellant also recognizes, the determination of whether a special award is payable is a fact-specific analysis to be completed by the adjudicator[^42]:
“Special awards” continue to be based on the facts of the case, not simply the facts surrounding the particular issue in dispute but the conduct of the insurer throughout the entire adjustment of the claim. Therefore, a finding that the insurer’s actions were unreasonable is a finding of fact based on my review of the evidence.[^43]
[48] The substance of the argument made on behalf of the Appellant is that Adjudicator Punyarthi made no error in her assessment of the facts or her application of those facts to the law:
It follows that, Adjudicator Punyarthi weighed the evidence, applied the correct legal test, and ultimately found Unica’s blatant disregard and failure to ask important and relevant questions with respect to the Applicant’s functional needs, despite his needs being apparent on the evidence, met the threshold for a special award. Adjudicator Punyarthi did not misapprehend the evidence, rather, she made a finding of fact by assessing and weighing the totality of the evidence.[^44]
[49] The conclusion arrived at and relied on in this appeal was:
Adjudicator Punyarthi did not make any significant errors of fact or law relating to the special award that would materially affect the decision, and accordingly, reconsideration of her decision was not warranted.[^45]
[50] This conclusion refers to and relies on the test applicable to the reconsideration undertaken by Adjudicator Boyce as found in the Common Rules of Practice & Procedure of the Licence Appeal Tribunal at rule 18 (2)(b) (“an error of law or fact”). It is the test that was to be applied by him to the decision of Adjudicator Punyarthi. It is not the test applicable to an appeal of that reconsideration. As already noted, the Licence Appeal Tribunal Act s. 11(6) limits this appeal to “a question of law only”.
[51] The Appellant addresses this:
It is respectfully submitted that the LAT erred in law by setting aside Adjudicator Punyarthi’s special award and finding the insurer’s conduct, did not meet the threshold for a special award.[^46]
[52] To the extent that the concerns raised by the Appellant reflect on findings of fact, as considered and determined by Adjudicator Boyce or the application of those facts to the legal principles involved, they raise issues of fact or mixed fact and law but not of “law only”. As such they are not subject to review by this Court.
[53] The question that remains is whether Adjudictor Boyce erred in law. Did he assess the evidence based on a wrong principle of law?
[54] He did not.
[55] Adjudicator Boyce identified and worked from the test enunciated in Plowright v. Wellington Insurance Co. Was the conduct of the insurer “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” such that it warranted an award?[^47] This is the test that was “conceded” by the Appellant. Adjudicator Boyce reviewed the circumstances that gave rise to the award in Plowright. He understood that an award should not be ordered simply because the original adjudicator made an incorrect decision (“the insurer’s conduct must rise to the level described in Plowright”) and that such an award was, by its nature, fact specific.[^48] Adjudicator Boyce reviewed the facts and measured them against the test:
In my view, it was not imprudent, inflexible or immoderate of Unica to challenge the reasonableness of the cost of the home modifications where the parties were $181,164 apart in their estimations…
In my view, it was not imprudent, inflexible or immoderate of Unica to question whether overnight assistance was necessary where many of S.M.’s own practitioners did not even recommend it.[^49]
[56] Principle among the concerns raised by the Appellant in justifying the award made by Adjudicator Punyarthi is the failure of Unica’s adjuster to provide Ms. Paulson (an occupational therapist utilized by Unica) with the Appellant’s medical file prior to the home modification assessment. Adjudicator Boyce specifically considered this allegation. He noted that Adjudicator Punyarthi did not speak to this as a demonstration of bad faith on the part of Unica, rather she gave “less weight to Ms. Paulson’s evidence as a result of these limitations.” It was “unclear whether Ms. Paulson requested the medical file from Unica, let alone that this is compelling evidence that Unica’s adjuster ‘sat’ on the file, intentionally withheld it or that the adjuster ‘should have known the importance and relevance of providing the medical file’”. Adjudicator Boyce acknowledged that “Ms. Paulson did testify that a medical file would be helpful for her assessment” but noted that an in-person housing modification assessment is not a medical assessment. These facts, as found by Adjudicator Boyce do not support, the satisfaction of the test found in Plowright.[^50] He concluded:
In any event, the error is that the Tribunal’s reasons for the award do not specifically address the allegation that medical information was intentionally withheld for the purposes of the home modification assessment. If that was the basis for the award, the reasons only vaguely address this point and it is couched, I suppose, in the statement that Unica did not turn “its mind to the larger context of information available to it from the evidence in this matter.” If that was indeed the basis for the award, I find it very questionable that this would attract an award given how tenuous the other evidence is.[^51]
[57] Adjudicator Boyce goes on to examine other aspects of the analysis of Adjudicator Punyarthi, in particular, her assessment of the standards that can reasonably be expected of adjusters. He begins by observing that “insurance adjusters are not medical professionals and they should not be held to that standard”[^52] and goes on, among other things, to note:
I find it is unreasonable and quite unfair to expect adjusters who come and go with some regularity to micromanage the assessments of qualified professionals to ensure that their reports respond directly to the specifics of a claim or else risk exposure to a s. 10 award if they do not
I find it was unreasonable of the Tribunal and an error to order a s. 10 award on the basis that Unica’s adjuster should have ensured that Ms. Ghatas asked S.M. about cuing, emotional support and night time supervision.
…I find that the Tribunal made a significant error when it based the s. 10 award on an inaccurate finding that Ms. Ghatas’ report did not “correspond to the information in S.M.’s medical file.” Indeed, based on the amount of attendant care actually incurred by S.M., it appears that Ms. Ghatas’ recommendations were more accurate.[^53]
[58] Suffice it to say none of what has been referred to reflects an error of law. These considerations are questions of fact or questions of mixed fact and law. Thus, they are not subject to review by this Court.
[59] Finally, within the reconsideration, Unica Insurance Co. submitted that the decision made by Adjudicator Punyarthi “watered down” the threshold for a special award. In dealing with this Adjudicator Boyce continued to measure what was being proposed against the test found in Plowright v. Wellington Insurance Co.:
Further, while the Tribunal used adjectives from the Plowright decision in granting the award, it did not actually engage in an analysis of how Unica’s conduct in this matter was analogous to that case (or any of the Tribunal’s recent jurisprudence on s. 10 awards) or why it chose those adjectives to describe the allegedly unreasonable withholding of benefits. While the language of s. 10 provides discretion to the adjudicator to grant “up to 50% of the total benefits in dispute”, I find that discretion, once exercised, requires precision—that is, specific, accurate details of unreasonable conduct to support and justify the percentage awarded, so that the insurer understands the rationale.[^54]
[60] This demonstrates a correct understanding and a proper application of the legal principle involved. There was no error of law.
[61] For the reasons reviewed, the appeal is dismissed.
Costs
[62] No costs were requested by or sought from the Licence Appeal Tribunal. None are ordered.
[63] As agreed to by the parties, costs are in the amount of $10,000 to be paid by the Appellant to the Respondent, Unica Insurance Inc.
Lederer, J.
I agree _______________________________
D.L. Corbett, J.
I agree _______________________________
Pattillo, J.
Released: June 29, 2021
CITATION: Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603
DIVISIONAL COURT FILE NO.: 499/20
DATE: 20210629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
SERGEY MALITSKIY
Appellant
– and –
UNICA INSURANCE INC. and LICENCE APPEAL TRIBUNAL
Respondents
REASONS FOR JUDGMENT
Lederer, J.
Released: June 29, 2021
[^1]: Licence Appeal Tribunal Act, 1990 S.O. 1999, c. 12 Sched. G:
6 (1) The Tribunal may make rules establishing procedures for hearings held by the Tribunal and the rights of parties to the hearings including…
[^2]: Common Rules of Practice and Procedure (October 2, 2017): These Rules also apply to the proceedings of the Animal Care Review Board and the Fire Safety Commission.
[^3]: Ibid at r. 18.1 states:
The Tribunal may, on its own initiative or upon request of a party, if the request is made within 21 days of the date of the decision, reconsider any decision of the Tribunal that finally disposes of an appeal….
[^4]: Reconsideration Decision of Jesse A. Boyce, June 25, 2020 File: 18-010164/AABS at para. 20.
[^5]: Ibid at para. 63.
[^6]: Ibid at para. 61.
[^7]: S.O. 1999, c. Sched. G.
[^8]: Supra (fn. 2).
[^9]: Taylor v. Aviva Canada Inc., 2018 ONSC 4472 at para. 68.
[^10]: Common Rules of Practice and Procedure, supra (fn. 2) Rule 18.4 (Outcome of Reconsideration).
[^11]: MTG v. Aviva General Insurance, 2019 94025 at para. 8 (ON LAT).
[^12]: 2019 SCC 65 at para. 37.
[^13]: Factum of the Respondent, Unica Insurance Inc. at para. 4 (“Adjudicator Punyarthi came to the following conclusions relevant to this Judicial Review Application:…”) and para. 6 (“The following issues were raised by the Applicant and/or are to be determined in respect of this Judicial Review Application: …”).
[^14]: Supra (fn. 12) at para. 17.
[^15]: Reconsideration Decision of Jesse A. Boyce, June 25, 2020 File: 18-010164/AABS at para. 13.
[^16]: Statutory Accident Benefits Schedule-Effective September 1, 2010 (O. Reg. 34/10), s. 19(3).
[^17]: Reconsideration Decision of Jesse A. Boyce, June 25, 2020 File: 18-010164/AABS at para. 15.
[^18]: Reconsideration Decision of Jesse A. Boyce, June 25, 2020 File: 18-010164/AABS at para. 16.
[^19]: Appeal Book of the Appellant Tab 11 at p. 224 of 461 (Caselines p. A224).
[^20]: Ibid Tab 12 at p. 266 of 461 (Caselines p. A266).
[^21]: Ibid Tab 13 at p. 303 of 461 (Caselines p. A303).
[^22]: Ibid respectively at Tab 11 at p. 197 of 461 (Caselines p. A197 (Fiana Kalb)), at Tab 12 at p. 232 of 461. (Caselines p. A232 (Ranya Ghatas)) and at T. 13 at p. 274 of 461 (Caselines p. A274 (Katrina Chalova)).
[^23]: The hourly rates used on all three Form 1’s were the same for Level 1 being $13.19 and the same for Level 3 being $19.35. For Level 2 two of the Form 1’s (Kalb and Chalova) used $10.25 and the other (Ghatas) used 11.25.
[^24]: The Guideline was published under the auspices of the Financial Services Commission of Ontario.
[^25]: I say this acknowledging that on the Form 1 prepared by Ranya Ghatas the hourly rate shown for Level 2 attendant care is $11.25 not $10.25 which I assume was an error.
[^26]: Decision of Adjudicator Nidhi Punyarthi File 18-010164/AABS at para. 15, 17 and 18.
[^27]: Ibid at paras. 24 and 25.
[^28]: Ibid at para. 26.
[^29]: Ibid at para. 32.
[^30]: Factum of the Appellant at paras. 8 and 15.
[^31]: Decision of Adjudicator Nidhi Punyarthi File 18-010164/AABS at para. 32.
[^32]: Reconsideration Decision of Jesse A. Boyce, June 25, 2020 File: 18-010164/AABS at para. 23.
[^33]: Ibid at para. 19.
[^34]: Ibid at para. 20 see also the quotation at fn. 17
[^35]: Ibid at para. 21.
[^36]: Superintendent’s Guideline No. 03/10 (Attendant Care Hourly Rate Guideline) dated June 2010, supra (fn. 24).
[^37]: Superintendent’s Guideline No. 01/18 (Attendant Care Hourly Rate Guideline).
[^38]: Bulletin (Revised Attendant Care Hourly Rate Guideline and Clarification of Healthcare Providers Subject to the Professional Services Guideline) No. A-03/18.
[^39]: R.R.O. 1990, Reg. 664 (Automobile Insurance) at s. 10.
[^40]: 1993 CarswellOnt 4786, OIC A-003985, October 29, 1993 at p. 17.
[^41]: Factum of the Appellant at para. 66.
[^42]: Ibid at para 62.
[^43]: 17-006757 v. Aviva 2018 81949 (ON LAT) at para. 31.
[^44]: Factum of the Appellant at para. 76.
[^45]: Ibid at para. 77.
[^46]: Ibid at para. 77.
[^47]: Plowright v. Wellington Insurance Co. supra (fn. 41) at paras. 37 and 38.
[^48]: Ibid at para. 39.
[^49]: Ibid at para. 40.
[^50]: Ibid at para. 48.
[^51]: Ibid at para. 49.
[^52]: Ibid at para. 51.
[^53]: Ibid at para. 51-53.
[^54]: Ibis at para. 60.