Court File and Parties

COURT FILE NO.: 15-66761 DATE: 26/06/2020 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Denis Roy Plaintiff – and – Primmum Insurance Co. Defendant

Counsel: Joseph Y. Obagi and Elizabeth Bratton for the Plaintiff Charlene Kavanagh and Chris Macauley for the Defendant

HEARD: October 23, 24, 25, 28, 29, 30 and 31st, and November 1st, 4, 5, 12, 13 and 14, 2019

REASONS FOR JUDGMENT

[1] On April 24, 2004, Denis Roy was seriously injured when his motorcycle collided with another vehicle. As a result of the accident, Mr. Roy’s right leg, left ankle and neck were fractured, and his two wrists, cervix and right hand were sprained. He also suffered a mild brain injury that gave rise to psychological and cognitive impairments.

[2] Mr. Roy’s motor vehicle insurer, Primmum Insurance Co. (“TD”) paid both attendant care benefits (“ACBs”) and housekeeping and home maintenance benefits (“HKBs”) for the first 18 months after the accident. [1] TD initially set the ACB at $1163 per month, but by late September 2005 it had reduced it to just under $70. At that point, TD determined that Mr. Roy no longer reasonably required assistance with activities of daily living and stopped paying any ACB. It continued paying HKBs for another eight months.

[3] In December 2010, Mr. Roy applied to TD for a determination that, as a result of the injuries he sustained in the April 2004 accident, he met the criteria for catastrophic impairment (“CAT”) under the Statutory Accident Benefits Schedule (“the SABS”). [2]

[4] Enacted under the Insurance Act, RSO 1990, c I.8, the SABS creates a scheme of legislatively-mandated benefits for persons injured in motor vehicle accidents. Pursuant to the SABS, a person whose injury in a motor vehicle accident results in catastrophic impairment (CAT) is entitled to a significantly greater level of benefits than is a person who is not CAT. A person who is not CAT is entitled to ACBs and HKBs, but only during the first 104 weeks after the accident. The ACB entitlement during this period is furthermore capped at $3,000 per month. A person who is CAT is entitled to an ACB of up to $6,000 per month as well as a HKB of $100 per week. These benefits are paid for an indefinite period, subject to certain lifetime dollar amount caps. An insured who is CAT is also entitled to a much greater coverage for medical and rehabilitation benefits.

[5] In July 2014, after contesting Mr. Roy’s application for a determination of catastrophic impairment for over three years, TD agreed that Mr. Roy met the criteria for CAT due to a mental or behavioural disorder. Following the accident, Mr. Roy had been diagnosed with major depression, post traumatic stress disorder, and an anxiety disorder. He also struggled with cognitive gaps and mood swings. A psychiatrist and neurologist who assessed him at TD’s request concluded that, as a result of the accident, Mr. Roy had a marked or Class 4 impairment with respect to his adaptability to work and work-like settings.

[6] In 2015, Mr. Roy applied for ACBs and HKBs as of November 9, 2014. He also sought, on a retroactive basis, benefits he said he should have received from the date of the accident to November 8, 2014. Mr. Roy claimed ACBs over and above what he had received from April 2004 to September 2005, and for the nine years that he received no ACBs, from September 2005 to November 2014. Mr. Roy claimed a HKB from the time this benefit was terminated in 2006. His claim was supported by a retrospective assessment of his functional limitations resulting from the accident by his occupational therapist Julie Cousineau, her evaluation of the attendant care and housekeeping services that were reasonably necessary as a result of these limitations, and her calculations of the corresponding ACB and HKB payable.

[7] TD initially agreed to pay Mr. Roy ACB and HKB as of November 2014, in the amounts calculated by Ms. Cousineau. It also agreed to pay ACBs retroactive to January 2012, when Mr. Roy required ankle fusion surgery, and HKBs from mid-2006 forward, again based on Ms. Cousineau’s assessment and calculations. TD refused however to pay retroactive ACBs from the date of the accident to January 2012, or any interest on any retroactive benefits it had agreed to pay.

[8] Under s. 46(2) of the SABS, an insurer must pay interest on any overdue payments at a rate of 2% per month, compounded. As a result, the value of the interest in a claim like that of Mr. Roy far exceeds the value of the benefits themselves.

[9] A few days before the trial of this action, TD made more concessions. It agreed to pay Mr. Roy further retroactive ACB, going back to December 21, 2010, the date of his CAT application. In doing so, it once again accepted Ms. Cousineau’s calculation of the level of benefits payable from late December 2010 to January 2012. TD also agreed to pay Mr. Roy interest on the retroactive HKB and ACB it had already paid, or now agreed to pay, at the rate set in s. 46(2).

[10] TD maintains, however, that it does not owe Mr. Roy any ACB for the period prior to December 21, 2010 or any interest on such benefits. At trial, it contended that Mr. Roy has not proved an entitlement to ACB prior to December 21, 2010. It also contended that it should not be required to pay any further interest based on retroactive payments because, prior to his CAT application, it could not reasonably have been aware that Mr. Roy was catastrophically impaired.

[11] I must therefore determine three issues:

(1) Should Mr. Roy be deemed CAT as of April 24, 2004? (2) If so, is Mr. Roy entitled to ACBs, over and above the benefits already paid by TD, for the period from April 2004 to December 2010? (3) If TD is required to pay these additional retroactive ACBs, must it also pay interest on them?

[12] For the reasons that follow, I conclude that Mr. Roy was CAT as of April 24, 2004; that he is entitled to the ACBs he claims for the period of April 2004 to December 2010, minus any amounts he has already received for such benefits; and that TD is required to pay interest on all retroactive benefits paid or payable, calculated at the rate set in and compounded as required by s. 46(2) of the SABS, from the date that each retroactive benefit became due.

The history of Mr. Roy’s claim

[13] Some context is necessary before I analyze the central issues in the action. I will therefore begin by reviewing the history of Mr. Roy’s SABS claim and TD’s handling of it.

General background

[14] Denis Roy is now 61 years old. He and his wife, Lucie Brunet-Roy, met when they were teenagers. They have been married for over forty years. Until recently, they lived in a small rural community in Eastern Ontario. They have two adult daughters, Andréanne and Joannie, born in 1985 and 1987 respectively. The Brunet-Roy family is Franco-Ontarian. Mr. Roy has limited abilities in English. Mrs. Brunet-Roy is somewhat bilingual, but more comfortable and fluent in French.

[15] Mr. Roy dropped out of high school to work full-time as a truck driver. When his employer shut down its operations in 1992, he became a crane operator. This job did not always provide him with full-time work and so, in 1998, Mr. Roy decided that he needed to obtain better qualifications. He took courses to earn his high school diploma; as he explained at trial, he wanted to graduate before his oldest daughter did. Mr. Roy achieved this admirable goal and got a job as a warehouse manager. He was employed full-time at the warehouse in April 2004.

[16] Mrs. Brunet-Roy also worked outside the home, except for a brief period when Andréanne and Joannie were very young. Beginning in 1990, Mrs. Brunet-Roy worked for a food distribution company. Over time she was promoted to a management position. The one disadvantage of the job was that it required her to commute about two hours each day.

[17] Prior to the April 2004 accident, Mr. Roy was in good physical shape. He did not take any medication. He never missed work. In addition to handling maintenance work around his home, Mr. Roy helped neighbours with various projects.

[18] Mrs. Brunet-Roy described Mr. Roy, prior to April 2004, as someone who was willing to listen and keep confidences. He was not at all judgmental. Mr. Roy got along well with coworkers. He had a close relationship with his extended family and his in-laws. When his sister had marital difficulties, he and Mrs. Brunet-Roy looked after her children for about a year.

[19] Mr. Roy was also actively involved in his local community. He worked with elderly residents at the local seniors’ home. He was a volunteer firefighter.

[20] Mr. Roy and Mrs. Brunet-Roy both testified that, prior to April 2004, they shared household tasks such as child care, meal preparation and cleaning. There were some periods when Mr. Roy did not have steady work. During those periods, he spent more time at home. He was a good cook and regularly prepared meals for the family. At the time of the accident, Mr. Roy’s workday ended in the afternoon, allowing him to return home and take care of the children. He and Mrs. Brunet-Roy described their lives before his accident as busy but happy. In his words: “Notre vie était bien remplie”. [3]

Events from April 2004 to December 2010

[21] On April 24, 2004, Mr. Roy’s motorcycle collided with an oncoming vehicle. It was a very serious accident. Mr. Roy shattered his right shin or tibia and fractured his left ankle. He also fractured his neck. His right hand, his cervix and both wrists were sprained. He did not lose consciousness, but he had extensive bruising. Mrs. Brunet-Roy described how her husband, who rarely reacted to any physical injury, was crying from pain in the hospital.

[22] In the week following the accident, Mr. Roy had surgery on his neck and right leg. He remained hospitalized for eighteen days and was discharged home in a wheelchair. Due to his leg, ankle and wrist injuries, he could not transfer independently for several weeks. He could not tolerate standing for more than a few minutes. He was unable to walk unaided for months. He was in constant pain. Beyond pain from his fractures and sprains, he had severe headaches, back and neck pain.

[23] Mr. Roy also suffered a mild brain injury during the accident, and experienced serious psychological, cognitive impairments and mood issues. In late 2004, he was diagnosed with post-concussion syndrome, headaches, major depression, post-traumatic stress disorder (PTSD) and an anxiety disorder. He found it impossible to follow a story told to him, to take the steps in a recipe, or to obtain all of the items on a shopping list. He was hostile to outsiders and was sometimes aggressive. Mr. Roy slept poorly and had flashbacks to the accident.

[24] Prior to the accident, Mr. Roy had no ongoing medical or psychiatric issues aside from an episode of lower back pain in 2002. After the accident, he was followed regularly by Dr. Bender, his family physician; Dr. Liew and other orthopaedic surgeons and specialists; Dr. Marie-Josée Roy, a psychologist; Dr. McKee, a physiatrist; and Dr. Dales, a respirologist. [4] Mr. Roy was prescribed pain killers, anti-depressants and other medications. He attended physiotherapy regularly to try to increase the strength, range of motion and mobility of his limbs.

[25] Mr. Roy has not worked since the accident. He received income replacement benefits from TD for two years, and eventually settled his claim for future benefits. Mrs. Brunet-Roy was able to take a week off work after the accident, but then returned to full-time hours in May 2004. She took a sabbatical in 2008 and retired the following year.

[26] Immediately following the accident, Mr. Roy applied to TD for ACB, HKB, and medical and rehabilitation benefits. Mr. Roy’s application was approved and a case manager was retained by TD to oversee and co-ordinate Mr. Roy’s rehabilitation.

[27] In May 2004, Sibley, a consultant retained by TD to assess Mr. Roy’s needs, referred his case to an occupational therapist (or “OT”) named Louise Hardy. Ms. Hardy conducted four in-home visits and a formal assessment of services and adaptive devices that Mr. Roy required. After two months, Ms. Hardy asked to be replaced. At trial, she testified that she was unable to develop an effective relationship with Mr. Roy due to his hostility towards outsiders. A second OT, Stephanie Harvey, took on his case from late July to December 2004. Ms. Harvey moved out of the region at the end of that year. She was replaced by a third OT, Chris Costello, from January to November 2005. [5]

[28] Each Sibley OT prepared written reports based on their visits to the Roy home. Their goal was to assess his ability to carry out activities of daily living, such as grooming, bathing, preparing food and other routine tasks. They relied primarily on what Mr. Roy told them, but also on what they observed him doing.

[29] According to Mr. Roy and Mrs. Brunet-Roy, the Sibley OT reports did not accurately reflect his functional abilities in 2004 and 2005. They also dispute the accuracy of descriptions of Mr. Roy’s abilities in contemporaneous written reports of Mr. Roy’s family physician, Dr. Jacques Bender. Both the OT reports and Dr. Bender’s reports suggest that Mr. Roy was more independent in his daily activities after the accident than he now alleges. I will weigh this conflicting evidence later in these reasons.

[30] In addition to assessment reports, the Sibley OTs periodically completed an Assessment of Care Needs form (“Form 1”). On each Form 1, the OT calculated the ACB that Mr. Roy should receive during any given period. This calculation was based on the number of minutes of level one, level two, or level three attendant care that Mr. Roy reasonably required each month. A different hourly rate applied to each level of services. The recommended number of minutes of each level of service required each month was multiplied by the applicable rate to derive the monthly ACB.

[31] Based on the assessments and Form 1s completed by the Sibley OTs, TD paid an ACB and an HKB as of May 12, 2004, the day Mr. Roy was discharged from hospital. The assessments prepared at the time indicated that Mr. Roy’s functional abilities improved steadily after May 2004, with the exception of a four-week period in April 2005 when he was recovering from further leg surgery. As a result, Mr. Roy’s ACB entitlement, as calculated by the Sibley OTs, decreased significantly over time. Mr. Roy initially received an ACB of $1,163 per month in May 2004. By June 2005, the monthly ACB was $67.92.

[32] In October 2005, Mr. Costello advised TD that Mr. Roy had the physical tolerance to independently complete all activities of daily living and so no longer required any attendant care services. As a result, TD terminated the ACB. Mr. Roy initially indicated that he would contest this decision but changed his mind. At trial, Mrs. Brunet-Roy testified that she and Mr. Roy decided that it was not worth challenging the termination of the ACB at that time because it was, by that point, less than $70 per month.

[33] TD continued to pay a HKB until May or June 2006. The HKB covered lawn-mowing and heavy cleaning services. TD later said that any HKB payments made after the two-year anniversary of the date of the accident were paid in error, because Mr. Roy had not yet been deemed CAT.

[34] Mr. Roy continued to receive medical treatment from 2005 to 2010. In April 2005, the hardware implanted to stabilize his right tibia after the accident was removed. He subsequently developed chronic pain in his leg due to post-traumatic osteoarthritis in his right ankle and had difficulty walking or climbing stairs. He had cortisone injections and then arthroscopic surgery in May 2008 to attempt to improve the situation. Unfortunately, none of this treatment relieved the pain in Mr. Roy’s ankle or increased his mobility to the point that he could walk unaided. Because this restricted his ability to do many routine activities, including anything that required him to spend time on his feet, his orthopaedic surgeon eventually advised him that ankle fusion surgery was his best option. This surgery did not however take place until January 2012.

[35] Mr. Roy regularly provided TD with reports from his treating physicians. He also underwent various insurer examinations at TD’s request. In addition to assessments by the Sibley OTs in 2004 and 2005, Mr. Roy attended assessments by an orthopaedic specialist and physiotherapist in 2006, and participated in a vocational assessment in early 2007, all at TD’s request.

[36] Mr. Roy was also independently assessed, again at TD’s request, by a psychologist, Dr. Maxine Morrison in January and again in June 2007. She diagnosed Mr. Roy with symptoms of PTSD including depression, irritability and anger management. Dr. Morrison also noted that Mr. Roy was irritable, had difficulty coping with chronic pain, and sometimes became verbally threatening when angered. She recommended cognitive-behavioural psychotherapy as well as biofeedback and relaxation therapy.

TD’s handling of Mr. Roy’s CAT application

[37] On December 20, 2010, Mr. Roy applied to TD for a determination that he was catastrophically impaired as a result of the 2004 accident. A CAT determination would entitle Mr. Roy to a maximum ACB of $6,000 per month, subject to a cap of $1,000,000 over his lifetime; $1,000,000 in rehabilitation and medical benefits; and up to $100 per week in HKB for his lifetime.

[38] I will review TD’s handling of Mr. Roy’s application in some detail as it is relevant to my assessment of the credibility of TD’s representatives and the insurer’s position on key issues. The basis on which TD ultimately determined that Mr. Roy is CAT is also relevant to the question of when he first met the criteria.

[39] For accidents on or after October 1, 2003, “catastrophic impairment” under s. 2(1.2) of the 1996 SABS meant:

(a) paraplegia or quadriplegia; (b) the amputation or other impairment causing the total and permanent loss of use of both arms or both legs; (c) the amputation or other impairment causing the total and permanent loss of use of one or both arms and one or both legs; (d) the total loss of vision in both eyes; (e) brain impairment that, in respect of an accident, results in (i) a score of 9 or less on the Glasgow Coma Scale … according to a test administered within a reasonable time after the accident by a person trained for that purpose, or (ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale … according to a test administered more than six months after the accident by a person trained for that purpose, (f) an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person; or (g) an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.

[40] In Mr. Roy’s case, the potentially relevant criteria for catastrophic impairment were clause (f) and (g), sometimes referred to as category 7 and 8 impairments. To qualify as CAT under clause (f) or category 7, Mr. Roy would have to establish a whole person impairment of 55 percent or more as a result of injuries he sustained in the April 2004 motor vehicle accident, based on the AMA Guides in effect at the time. To qualify under clause (g) or category 8, Mr. Roy would have to establish that he had a marked (class 4) or extreme (class 5) impairment due to a mental or behavioural disorder as a result of the accident. Once again the assessment would be based on the AMA Guides.

[41] Subsection 2(2.1) of the 1996 SABS imposed further criteria for a catastrophic impairment under clause (f) or (g):

(2.1) Clauses (1.2) (f) and (g) do not apply in respect of an insured person who sustains an impairment as a result of an accident that occurs after September 30, 2003 unless, (a) the insured person’s health practitioner states in writing that the insured person’s condition is unlikely to cease to be a catastrophic impairment; or (b) two years have elapsed since the accident.

[42] Mr. Roy’s application consisted of a form -- an Application for Determination of Catastrophic Impairment (OCF-19) -- completed by Mr. Roy and a physiatrist, Dr. Hillel Finestone, and an additional accompanying report by Dr. Finestone. In his report, Dr. Finestone stated that Mr. Roy had physical, psychological and cognitive injuries as a result of the April 24, 2004 accident. These injuries included:

• Right ankle trauma, pain, swelling and decreased endurance, as a result of his fractured right ankle, which surgery could not fully fix, leading to “residual pain with weight bearing, swelling, decreased sensation over the scars and a limited capacity to walk more than short distances”;
• Left ankle symptoms, resulting in residual in ongoing pain, an uneven gait, and possibly post-traumatic arthritis;
• Right hand and wrist pain, swelling and numbness, resulting in diminished grip, extension and feeling in his right hand;
• Neck pain and headaches;
• Low back pain;
• Cognitive symptoms consistent with a traumatic brain injury, including mild memory loss, difficulties with concentration, and difficulty in remembering conversations;
• Mood change caused by depression, PTSD and panic disorder.

[43] Dr. Finestone did not expect that Mr. Roy’s condition would improve significantly. In his opinion, Mr. Roy would never be able to return to any type of work on either a full-time or part-time basis.

[44] Dr. Finestone did not assign a percentage of whole person impairment to Mr. Roy. He nonetheless expressed the view that Mr. Roy was catastrophically impaired based on the criterion at clause (f), implying a whole person impairment of at least 55 percent.

[45] In response to the application, the adjuster assigned to Mr. Roy’s file at the time, Laurian Palmer, sent Mr. Roy a letter denying that he had proved he was CAT and advising that an assessment would be arranged by TD. TD again retained Sibley, who asked Dr. Howard Platnick to coordinate a CAT assessment. Dr. Platnick is a family physician who by 2010 was working full time for insurance companies or consultants such as Sibley.

[46] Dr. Platnick recommended an assessment team that included an orthopaedic surgeon, a neuropsychologist, an occupational therapist and a physician certified by the AMA to perform a catastrophic rating impairment. He noted that, since the accident, Mr. Roy had been diagnosed with traumatic brain injury, post-concussive syndrome, major depressive disorder, and PTSD. He recommended seeking psychiatric and neurological assessments not only to determine whether Mr. Roy met the criteria in clause (f), but also the criteria under clause (g), that is, a marked or extreme impairment due to a mental or behavioural disorder.

[47] At trial, Dr. Platnick testified that, to determine whether a person meets the criteria under clause (g), the individual’s function in four areas or realms must be assessed. These four realms are:

i. Activities of daily living; ii. Social functioning; iii. Concentration, persistence and pace; and iv. Adaptation to work and work-like settings.

[48] Dr. Platnick testified at trial that, when the assessments of Mr. Roy were carried out in early 2011, he understood that a marked or extreme impairment in any one of these four realms meant that a person met the CAT criterion in clause (g).

[49] TD accepted Dr. Platnick’s assessment plan. Mr. Roy was examined and assessed by various medical professionals, including Dr. Kenneth Suddaby, a psychiatrist, and Dr. Kimberley Payne, a neuropsychologist. [6]

[50] In his report to Sibley dated July 18, 2011, Dr. Suddaby summarized the psychiatric injuries sustained by Mr. Roy as a result of the April 2004 accident, based on his review of the medical records and his examination of Mr. Roy. He wrote:

There is no evidence that Mr. Roy had a pre-accident psychiatric condition. He reports positive family relationships and relationships with friends. He reports a consistent work ethic over the years. Mr. Roy was in a serious motor vehicle accident in 2004 that resulted in multiple significant injuries, hospitalization and a lengthy recovery to his current level of mobility. Mr. Roy has chronic pain experiences arising directly out of the underlying physical injuries. Likely within the first one to two years of the motor vehicle accident, Mr. Roy developed a major depressive episode as evidenced by depressed mood, poor energy, sleep disturbance, poor concentration and poor motivation. The major depression would have lowered his pain threshold and would have been a psychological contribution to his underlying fundamentally physically related Pain Disorder. Mr. Roy developed a Post Traumatic Stress Disorder following the accident. This is evidenced by an initial fear of loss of life, nightmares, intrusive memories and decreased social interaction. The Post Traumatic Stress Disorder symptoms persist. Mr. Roy has also developed a Panic Disorder. He has episodes of intense anxiety as noted above. These are triggered by leaving the home to participate in perceived stressful situations such as appointments.

[51] Dr. Suddaby described how these conditions affected Mr. Roy’s everyday activities:

Mr. Roy has significant limitations on a day-to-day basis. He has impairment in motivation. He has impairment in being able to sustain a focus on a task. Because of a lack of motivation, it is a struggle to follow through on day-to-day tasks. His energy levels are low in part due to major depression and this reduces his stamina to be able to focus and complete tasks with any kind of sustained regularity. He has a significantly decreased sense of enjoyment and pleasure in life. Even irrespective of the pain experiences, all of these factors cause significant impairment to Mr. Roy’s ability to adapt and in his ability to participate in a work or work-like setting.

[52] Dr. Suddaby evaluated Mr. Roy’s degree of impairment in each of four realms. He concluded that Mr. Roy had a marked impairment with respect to adaptation to work and work-like settings; a moderate impairment with respect to the activities of daily living and concentration, persistence and pace; and a mild impairment with respect to social functioning.

[53] Taking these findings into account, Dr. Suddaby concluded that Mr. Roy had a whole person impairment of 22 percent, less than the level required under clause (f). Because Mr. Roy had a marked impairment in one realm of functioning, however, he met the criterion under clause (g) for CAT.

[54] Dr. Payne, the neuropsychologist retained by Sibley, also produced a report dated July 18, 2011. She had also reviewed the records provided and examined Mr. Roy on May 11, 2011, at which time various neuropsychological tests were administered. She reached the same conclusions as Dr. Suddaby with respect to the existence and degree of Mr. Roy’s impairment in each of the four realms. Noting that Mr. Roy had not returned to work since the 2004 MVA due to functional limitations and pain, Dr. Payne wrote:

He demonstrates the ability to interact appropriately with others however, cognitive dysfunction would likely render it problematic for him to function in a work-like setting with the same accuracy and efficiency as prior to the MVA. He would also likely be prone to distraction, lower productivity and increased fatigue due to both head injury sequelae and severe symptoms of depression and anxiety.

[55] Dr. Payne concluded that Mr. Roy’s whole person mental status impairment from a neuropsychological perspective was 10 percent, because he was able to perform most activities of daily living. But she also concluded, like Dr. Suddaby, that Mr. Roy had a marked impairment with respect to adaptation to work and work-like settings, and was therefore CAT.

[56] After receiving reports from each physician in the assessment team, Dr. Platnick prepared a summary report to Sibley on July 18, 2011. In it, he indicated that Dr. Payne and Dr. Suddaby had each concluded that Mr. Roy satisfied the criteria for CAT under clause (g).

[57] After receiving Dr. Platnick’s report, Ms. Palmer recorded in the adjusters’ log on July 19, 2011 that:

Criterion 8 – Drs. Payne and Suddaby conclude that Mr. Roy satisfies criterion 8 with class 4 (marked impairment) due to mental or behavioural disorder and is “deemed catastrophic”.

[58] Ms. Palmer did not however share this information with Mr. Roy. This was not for lack of opportunity. Mrs. Brunet-Roy testified that, on August 8, 2011, she called TD, asking if an assessment by an occupational therapist could be arranged. Ms. Palmer told her that she could not do this because Mr. Roy had not been deemed CAT. Mrs. Brunet-Roy’s evidence on this point is corroborated by a note on the adjusters’ log documenting this discussion. Ms. Palmer recorded that she advised Mrs. Brunet-Roy that:

I am not sure I am able to do this [arrange for Mr. Roy to be assessed by an OT] at this point and confirmed that attendant care is not covered after 2 years unless he is deemed catastrophic and as of this point he hasn’t been so we would have to wait to find out.

[59] Ms. Palmer was not called to testify at trial, so she was not asked to account for her failure to tell Mrs. Brunet-Roy about the determination reached by Drs. Suddaby, Payne and Platnick that Mr. Roy was CAT based on clause (g) of the criteria.

[60] The court did hear from Katherine Strokan, the adjuster who took over Mr. Roy’s file from March to mid-October 2012. She testified that TD adjusters have limited authority to make decisions with financial implications for the company, beyond certain narrow limits. For this reason, any CAT determination had to be approved by a consultant with the Major Claims Unit (MCU). As its name implies, the MCU became involved in large or potentially large claims by TD’s insureds.

[61] Leonida Micor worked for the MCU. She was a senior accident benefits analyst who became actively involved in Mr. Roy’s file around the time he applied for a CAT determination. She described the MCU’s role as ensuring regulatory compliance.

[62] Ms.Micor initially testified that she became directly involved in Mr. Roy’s case only because Ms. Palmer did not understand the medical terminology and percentages used by Dr. Suddaby in his July 2011 report and so sought the MCU’s help in clarifying it. This was shown to be inaccurate, as Mr. Roy’s file was transferred to the MCU and assigned to Ms. Micor when his application for a CAT determination was first received by TD. In fact, the TD adjusters’ log refers to Ms. Micor first becoming involved in handling Mr. Roy’s file four months earlier, in August 2010. When confronted with the August 2010 entry in cross-examination, Ms. Micor agreed that an adjuster might have flagged the file for the MCU because of some hint that Mr. Roy intended to submit a CAT application.

[63] This along with other evidence indicates that the MCU’s role was not primarily to give adjusters regulatory guidance. The MCU was there to oversee decisions that could have significant financial implications for TD. Mr. Roy’s potential designation as CAT clearly fell within this category.

[64] Given Ms. Micor’s involvement in Mr. Roy’s claim during this period, I must consider the reliability of her testimony. In general, I did not find her to be a credible witness and I reject much of her explanation of how decisions were made in Mr. Roy’s claim. Here are some reasons why:

• Ms. Micor was unable to remember critical details, particularly when they cast her role in the handling of Mr. Roy’s claim in a negative light. For instance, she denied any recollection of her involvement in seeking addendum reports from the Sibley assessors after July 2011, even though this involvement extended over a three year period and involved repeated exchanges with Sibley.
• Ms. Micor more generally denied overseeing the determination of whether Mr. Roy was CAT or making any decision on his claim. She suggested that she was not deeply involved in the file and the adjusters would have had more involvement in communicating with Sibley. She also said that her involvement ended entirely in late 2013. Ms. Micor’s testimony on each of these points was squarely contradicted by emails she sent in 2011 and early 2014.
• Ms. Micor was evasive and incoherent when confronted with inconsistencies between her testimony and other evidence, or with internal inconsistencies in her own evidence, for example her contradictory answers to questions with respect to the impact of a CAT determination on an insured’s right to retroactive benefits.

[65] I conclude, notwithstanding her denial of the role, that Ms. Micor was the primary decision-maker with respect to Mr. Roy’s file as of late 2010, specifically with respect to the handling of his application for a CAT determination. She held this role until sometime in 2014. Her last entry in the adjusters’ notes was made in November 2013, yet two months later she sent emails to Sibley to direct yet more reassessments. Her involvement was in Mr. Roy’s claim was triggered not by an adjuster’s request to the MCU for help in interpreting an assessment report, but by TD’s apprehension that he might be determined to be CAT and entitled to CAT-level SABS.

[66] I also infer that, throughout her involvement with Mr. Roy’s file, Ms. Micor’s focus was limiting TD’s financial exposure. She provided no other plausible explanation for her decision to seek addendum reports. She furthermore admitted that she has no medical training and normally relied on medical experts to determine if an insured had a catastrophic impairment.

[67] There was nothing confusing or ambiguous about the assessment reports that TD received in July 2011. In the passage I have reproduced above, Dr. Suddaby unequivocally concluded that Mr. Roy had, as a result of injuries caused in the MVA, “significant impairment to [his] ability to adapt and in his ability to participate in a work or work-like setting”. Dr. Payne reached the same unadorned conclusion.

[68] I infer that Ms. Palmer contacted Ms. Micor because the assessment coordinated by Dr. Platnick indicated that Mr. Roy was CAT, and such a determination – which would significantly increase the benefits that TD would have to extend to him - required Ms. Micor’s sign off. I further find, based on the interactions that followed, that Ms. Micor’s purpose in obtaining an addendum report was to see if the Sibley assessors could be persuaded to revisit their conclusion that Mr. Roy was CAT.

[69] In an email to Sibley on August 16, 2011, Ms. Micor wrote that it did not appear that Dr. Suddaby had followed procedures mandated in the AMA Guides, as Mr. Roy’s main impairment seemed to be a lack of motivation. In her view, Dr. Suddaby’s report lacked “any reasoned analysis where Mr. Roy has demonstrated ability or disability in adaptation to work and work-like setting”.

[70] On August 19, 2011, Dr. Suddaby produced an addendum report. He forcefully denied that he had failed to follow the AMA Guides. He also pushed back hard on the suggestion that Mr. Roy’s fundamental problem was a willful lack of motivation:

[I]mpairment in motivation is considered to be a direct symptom of the major depression and the Anxiety Disorder. It is not simply a non-medical willful lack of desire to do things. The low motivation is a serious symptom that is directly related to the accident-caused psychiatric injuries and impairment.

[71] As a result, in his addendum report Dr. Suddaby stood by his initial conclusion that Mr. Roy met the criteria for catastrophic impairment under clause (g).

[72] Having received this addendum report, Ms. Micor communicated once again with Sibley and requested a further report from Dr. Platnick. In this email, Ms. Micor did not state why she needed a further report from him, nor could she recall, at trial, why she took this step.

[73] Dr. Platnick testified that, in August 2011, he received a phone call from someone at Sibley. This person, whose identity he could not recall, advised him that Sibley had received legal advice that the criteria in clause (g) had changed due to the decision of the Divisional Court in May 2011 in Aviva Canada Inc. v. Pastore, 2011 ONSC 2164 [7] The Court had held that it was unreasonable for an assessor to conclude that a person was catastrophically impaired based on a marked impairment in only one of the four realms of functioning.

[74] Dr. Suddaby was aware of the Pastore decision when he drafted his supplementary report. He referred to it but noted that, in other cases, courts had held that a person with a marked impairment in only one of the four realms meets the CAT criteria. Given the conflicting caselaw, he said that he had followed common practice when formulating his opinion about whether Mr. Roy was CAT.

[75] Dr. Platnick took a different approach. In his addendum report dated September 1, 2011, he recast Dr. Suddaby’s conclusion as follows:

Overall, Dr. Suddaby placed Mr. Roy at Class 3 moderate impairment under Criterion 8 with an assigned value of 22% whole-person impairment. [8]

[76] Dr. Platnick did not refer to Dr. Suddaby’s and Dr. Payne’s determination that Mr. Roy was CAT based on a marked impairment in one of the four realms. Reading Dr. Platnick’s addendum report as a stand-alone document, a reader might have the impression that Mr. Roy’s condition fell well short of the criteria for CAT.

[77] At trial, Dr. Platnick testified that he felt he was “legally bound” to take the Divisional Court’s decision in Pastore into consideration in drafting his addendum report. The decision was not, however, mentioned in that report. Unlike Dr. Suddaby, Dr. Platnick did not explain the impact of the decision in Pastore on his conclusion. The wording of Dr. Platnick’s addendum instead misdirected the reader about the conclusions reached by the specialists who assessed Mr. Roy’s impairment from a psychiatric and neuropsychological perspective.

[78] Dr. Platnick also testified that he assumed that both his original report and the addendum would be provided to Mr. Roy. If in fact he made this assumption – which seems questionable, given the stand-alone tone and content of the addendum – then that assumption was incorrect.

[79] On September 5, 2011, five days after Dr. Platnick submitted his addendum report, Ms. Palmer wrote to Mr. Roy a letter that began as follows:

Please be advised that we have made a determination that your impairment(s) do not meet the criteria for a catastrophic impairment based on the report of the examination under section 44. The following is our explanation of the reason(s) you do not meet the criteria for catastrophic impairment: Mr. Roy’s impairment is moderate, and therefore, does not meet criterion (f) & (g) of marked impairment.

[80] The wording of this letter removes any doubt that TD understood that it was obliged to assess whether Mr. Roy was CAT under any criteria, and not just the criterion identified in Dr. Finestone’s report.

[81] TD’s September 5, 2011 letter enclosed a copy of Dr. Platnick’s addendum report and Dr. Suddaby’s reports. Ms. Palmer did not, however, provide Mr. Roy with Dr. Platnick’s first report. Ms. Micor admitted in cross-examination that TD was required to provide their insureds with any assessment report within ten days of its receipt. It nonetheless failed to disclose Dr. Platnick’s July 2011 report to either Mr. Roy or his counsel until early October 2019, a few weeks before the beginning of the trial of this action.

[82] In January 2012, Mr. Roy underwent further surgery to fuse his right ankle. As already mentioned, he had developed posttraumatic osteoarthritis as a result of the fracture in April 2004 and had been in severe and intractable pain for several years. The surgery went well, but Mr. Roy had limited mobility for months afterwards.

[83] On September 27, 2012, the Divisional Court’s decision in Pastore was overturned. In its decision, the Ontario Court of Appeal held that it was reasonable for an assessor to determine that an insured was CAT based on marked impairment within only one realm of functioning. [9]

[84] Ms. Strokan acknowledged in cross-examination that the Court of Appeal’s decision in Pastore was significant and that TD adjusters would have been made aware of it shortly after it was issued, because they were responsible for ensuring that the company complied with it. Despite this, Ms. Strokan demurred when first asked whether she was aware of the decision when she transferred Mr. Roy’s file to Anne Szydlik in October 2012. She eventually conceded that she might have been aware of the decision at that time.

[85] Based on Ms. Strokan’s evidence and the evidence of Ms. Micor about internal TD processes, I conclude that Ms. Strokan was likely aware of the Court of Appeal’s decision in Pastore when she transferred Mr. Roy’s file on October 30, 2012. Despite this knowledge, when making her final entry on the file, Ms. Strokan did not mention any further action that needed to be taken in response to Mr. Roy’s CAT application following the September 2011 denial. She instead noted that there was only $18,000 remaining in medical and rehabilitation benefits, given the lifetime cap that applied for non-CAT insureds, and that Mr. Roy had been determined not be CAT because he only had “48%t WPI [whole person impairment] as per reports”. This note did not mention Mr. Roy’s eligibility for CAT based on clause (g). Ms. Strokan testified that she did not turn her mind to clause (g). Her evidence in that regard is surprising given the conclusion reached by Dr. Suddaby and Dr. Payne, and her specific reference to this criterion in her September 5, 2011 letter denying Mr. Roy’s CAT application.

[86] After receiving the denial letter, Mr. Roy applied to the Financial Services Commission of Ontario for mediation. This process did not lead to a resolution of the dispute over whether Mr. Roy was CAT. Anne Szydlik, the adjuster assigned to Mr. Roy’s file in October 2012, testified that the mediation failed because some medical information was missing. She did not identify what information was missing.

[87] Since Ms. Szydlik handled the file from October 2012 forward, I should pause here to comment generally on the reliability of her evidence at trial.

[88] Like Ms. Micor, Ms. Szydlik was often unable to answer straightforward questions or provide reasonable explanations for TD’s handling of Mr. Roy’s file. She was extremely defensive about her handling of this case, and consistently tried to blame other people for decisions that she made or to attribute her decisions to mistakes on her part. I conclude that she was not a credible witness.

[89] There were many statements made by Ms. Szydlik during her testimony that were implausible, questionable or discredited in cross-examination. I will refer to only a few examples.

[90] Ms. Szydlik only begrudgingly admitted, after lengthy cross-examination on this point, that Mr. Roy had suffered a mild brain injury in his accident. She maintained, however, that Mr. Roy only met the criteria for CAT in the summer of 2014. She did not indicate why she believed this despite multiple assessment reports received by TD three years earlier that said Mr. Roy was CAT, and despite her admission that she lacks any medical qualification to determine if someone is catastrophically impaired.

[91] Ms. Szydlik’s assertion that Mr. Roy only met the CAT criteria as of the summer of 2014 is also at odds with her approval, in 2015, of the payment ACBs retroactive to January 2012. Ms. Szydlik characterized her approval of these benefits as an error on her part. I find it impossible to believe that, in the context of claims file that had been hotly contested for years, TD would have conceded on this major point by mistake.

[92] Later in her testimony, Ms. Szydlik attributed her approval of retroactive ACBs to a bullying phone call by Mr. Roy’s lawyer. She said that she felt intimidated during the call and so capitulated by agreeing to payment of ongoing benefits. Ms. Szydlik’s entry in the adjusters’ log tells another story. A note she made on the log prior to the call identified that TD was “exposed” to a CAT determination as a result of Mr. Roy’s January 2012 ankle fusion surgery. I conclude that Ms. Szydlik’s approval of retroactive benefits predated any phone call with Mr. Roy’s lawyer on this issue. I also reject her characterization of the lawyer’s tone during the call.

[93] Other assertions by Ms. Szydlik were equally implausible. For example, she recalled that, when Mr. Roy’s file was assigned to her, she was struck by reports in 2006 indicating that he might eventually return to work. By the time Ms. Szydlik became the adjuster on the file, it had been clear for years that Mr. Roy would never work again. There was no reason why, in 2012, she would have turned her mind to his potential employability some six years earlier. In my view, the purpose of Ms. Szydlik’s testimony on this point was to try to draw the court’s attention to evidence that arguably showed that TD was reasonable terminating the ACB and HKB in 2005-06. I reject this evidence as insincere and frankly not believable.

[94] Ms. Szydlik repeatedly asserted that she was a “people pleaser” and an “incredibly generous” adjuster. She detailed the expenses that TD had covered for Mr. Roy, without seeming to grasp that these payments were not the result of a personal impulse on her part but rather TD’s legal obligation to its insured.

[95] Finally, Ms. Szydlik tried to excuse her mishandling of Mr. Roy’s file, and even answers she gave during discovery that she tried to alter or withdraw, because of difficulties in her personal life. While I have sympathy for the experiences she described, they are irrelevant to a consideration of whether TD, as an insurer, respected its obligations to its insured, Mr. Roy.

[96] Returning to the chronology of events as of late 2012, I find that Ms. Szydlik and Ms. Micor took no steps in late 2012 or 2013 to revisit the question of Mr. Roy’s CAT status, even though he clearly met the criteria under clause (g) as a result of the Court of Appeal’s decision in Pastore. Instead, as detailed below, they continued to seek information and opinions that might contradict or undermine the conclusion reached in 2011 by Drs. Suddaby and Payne. In the meantime, after Mr. Roy applied for arbitration in October 2012, TD continued to take the position that he did not meet the CAT criteria.

[97] In November 2013, Ms. Szydlik directed Sibley to seek further addendum reports from Drs. Suddaby and Payne, based on updated medical records with respect to ankle fusion surgery and other treatment Mr. Roy received as of January 2012. The two physicians responded by saying that none of the records provided had any impact on their finding that, as of July 2011, Mr. Roy was CAT.

[98] Ms. Szydlik also asked Dr. Platnick for a further assessment of Mr. Roy’s impairment. In a further addendum report dated January 21, 2014, Dr. Platnick noted that both Drs. Payne and Suddaby had each reiterated their finding that Mr. Roy had a marked impairment with respect to work and work-like settings. He concluded that Mr. Roy “would achieve the threshold of catastrophic impairment as per the SABS due to injuries sustained in the April 24, 2004 motor vehicle accident”. At trial, Dr. Platnick acknowledged that there was no change in Mr. Roy’s condition from the time he was first assessed in early 2011 to early 2014.

[99] TD asked the Sibley assessors at least one more time in early 2014 to revisit their evaluation of Mr. Roy. Based on emails exchanged in late January 2014, Ms. Micor was once again involved in the file and recommending that the assessors watch surveillance videos that TD had obtained of Mr. Roy after July 2011. Dr. Suddaby again declined to change his conclusion after watching the videos. Dr. Payne advised that she would revisit her assessment only if she were authorized to show the surveillance videos to Mr. Roy. TD had not disclosed the surveillance to Mr. Roy, and so did not follow up further with Dr. Payne.

[100] At trial, Ms. Szydlik admitted that she did not provide Mr. Roy or his lawyer with any of the further addendum reports that she and Ms. Micor obtained from assessors in 2013 and 2014. These reports supporting Mr. Roy’s claim that he was CAT were not produced to Mr. Roy or his counsel until early October 2019, when the contents of Sibley’s file was disclosed.

[101] On July 16, 2014, after a date for arbitration of Mr. Roy’s claim had been set, TD finally conceded that Mr. Roy was CAT because he had a marked impairment due to a mental or behavioural disorder based on his lack of adaptability to work or work-like settings.

Mr. Roy’s application for retroactive benefits

[102] In May 2015, Mr. Roy applied to TD for ACBs and HKBs retroactive to the date of his accident. The application was based on a January 2015 retrospective reassessment by Julie Cousineau, an occupational therapist. In her report, Ms. Cousineau reviewed Mr. Roy’s functional and cognitive abilities from April 2004 forward and assessed his need for attendant care services. Ms. Cousineau also completed (a) retrospective Form 1s for discrete periods from the date of Mr. Roy’s accident to November 7, 2014, and (b) a Form 1 for the period from November 8, 2014 forward. These Form 1s were submitted to TD along with Ms. Cousineau’s retrospective assessment.

[103] Based on Ms. Cousineau’s assessment, Mr. Roy required the following attendant care services on an ongoing basis:

• 14.5 hours a week of level 1 services, to assist him with his routine personal care. In particular, he needed help with meal preparation, as pain, limited tolerance for standing and cognitive impairments prevented him from many routine kitchen activities. He also needed help with some dressing and undressing, due to pain and limited range of motion.
• just over 4 hours a week of level 2 services for supervisory functions, to ensure that his surroundings and equipment were safe and hygienic; and
• about 14 hours per week of level 3 attendant services, to assist Mr. Roy with his prescribed exercise program and medications. Within this last category, Ms. Cousineau allocated an hour of skilled supervisory care “for violent behavior that may result in physical harm to themselves or others”. In her view, he also needed help to do daily exercises prescribed by his physiotherapist, to take his medication every day, to bathe and to repair and maintain adaptive devices.

[104] TD accepted Ms. Cousineau’s calculation of the allowable ACB on the Form 1 she completed for benefits as of November 8, 2014. It began paying Mr. Roy an ACB of $1,790.51 per month as of that date as well as an HKB of $100. TD continues to this day to pay Mr. Roy the same monthly ACB and weekly HKB.

[105] After reviewing the retrospective Form 1s, TD also agreed to pay Mr. Roy a retroactive HKB of $100 per week from the date this benefit had been terminated in mid-2006 and ACBs retroactive to January 12, 2012 in the amounts calculated by Ms. Cousineau for this period. It refused however to pay Mr. Roy ACBs for the period prior to January 2012 and interest on any of the retroactive benefits it had paid. This refusal prompted Mr. Roy to commence this action.

[106] On the eve of trial, TD paid Mr. Roy an additional amount of approximately $420,000. This amount represents the value of ACBs calculated by Ms. Cousineau retroactive to December 2010 and interest on retroactive ACBs and HKB as of December 2010.

[107] The amounts that therefore remained at issue at trial were:

(i) Retroactive ACBs claimed by Mr. Roy for the period from April 24, 2004 to December 20, 2010, totalling roughly $106,000; and (ii) Interest on these benefits for the same period, totalling about $2.1 million.

ANALYSIS

a. Should Mr. Roy be deemed CAT as of April 24, 2004?

[108] Mr. Roy contends that he should be deemed CAT as of the date of the accident on three bases:

(i) “Once CAT, always CAT”; (ii) TD should not be permitted to alter the position it took prior to trial; and (iii) The evidence at trial supports Mr. Roy’s status as CAT since April 24, 2004.

[109] TD’s position on this issue was somewhat unclear right up until trial. In its statement of defence dated August 18, 2017, it denied that Mr. Roy is or has ever been catastrophically impaired as a result of his motorcycle accident. When this pleading was filed, TD had already determined that Mr. Roy was CAT and had made payments to him of ACBs and HKBs on both an ongoing and retroactive basis. TD’s denial of Mr. Roy’s CAT status from the date of his accident is also, arguably, inconsistent with an admission by TD’s counsel during a discovery in early 2019.

[110] Given the ambiguity of TD’s position and the novelty of some arguments advanced on behalf of Mr. Roy, I consider each of the three potential bases for Mr. Roy’s claim to CAT status as of April 24, 2004.

(i) “Once CAT, always CAT”

[111] Mr. Roy argues that, if an insured is determined to be CAT as the result of a motor vehicle accident, this determination applies from the date of the accident and can never be revisited. In his words: “once CAT, always CAT”. In support of this proposition, he relies on the language and purpose of the SABS and Ms. Micor’s testimony at trial.

[112] Section 40(1) of the SABS states that: “An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.”

[113] Section 40(2) requires the insurer to respond to such an application within 30 days, either by issuing a determination that the insured is CAT or advising that it requires the insured to undergo one or more examinations by a health professional or other expert to make a determination. Section 40(3) provides that, if the application is made within the first 104 weeks after the accident and the insured is receiving ACBs at the time, the insurer must continue to pay those benefits until a determination is made, at a level that assumes that the insured is CAT.

[114] As plaintiff’s counsel points out, nothing in s. 40 or any other provision in the 1996 SABS refers to a commencement or end date for CAT status. The OCF-19, the form submitted to the insurer requesting a CAT determination, does not inquire of the insured or their treating physician as to when the insured became CAT. The SABS do not set out how, once made, an insurer might revisit a determination that an insured is CAT. Arguably it has no right to do so.

[115] For the purpose of this action, I do not need to determine if an insurer could take the position that a person who was determined CAT as a result of an accident has recovered to the point that he or she no longer meets the SABS criteria for CAT and is therefore no longer entitled to a higher level of benefits. I need only consider whether, in a case governed by the 1996 SABS, a CAT determination applies retroactively to the date of the accident.

[116] The regime of benefits in the SABS is akin to consumer protection legislation. As such, its provisions must be read remedially: Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129.

[117] This principle was recently emphasized again in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 992 (leave to appeal denied by the SCC June 4, 2020). At paras. 41 to 45 of Tomec, the Court of Appeal endorsed the approach adopted by McKinnon J. in Arts (Litigation Guardian of) v. State Farm Insurance Co., (2008) 91 O.R. (3d) 394 (S.C.), at paras. 14 to 16. McKinnon J. held that the overall goal of the SABS is to reduce the economic dislocation and hardship of victims of motor vehicle accidents, and that the provisions regarding catastrophic impairment must be read in this light:

The legislature’s definition of “catastrophic impairment” is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive.

[118] Applying a purposive and remedial reading of the SABS, the Court of Appeal in Tomec concluded that a limitations defence raised by the defendant insurer should not prevail. “Given the choice of a statutory interpretation that furthers the public policy objectives underlying the SABS and one that undermines it”, the Court held that it must adopt the interpretation that favoured the protection of “a small category of victims who suffer from lasting and very serious health impacts as a result of a motor vehicle accident”; Tomec, at paras. 43 to 45.

[119] I have analyzed the “once CAT, always CAT” argument in this same spirit but, given the language of the 1996 SABS, cannot conclude that CAT status must be deemed retroactive to the date of the accident for the purpose of claims such as this one.

[120] In the 2010 SABS, the impact of a CAT determination on the insurer’s obligation to pay retroactive benefits is explicitly addressed. Subsection 46(10) of the 2010 SABS provides that:

If an insured person is determined to have sustained a catastrophic impairment as a result of an accident, the insured person is entitled to payment of all expenses incurred before the date of the determination and to which the insured person would otherwise be entitled to payment under this Regulation by virtue of having sustained a catastrophic impairment.

[121] In Van Galder v. Economical Mutual Insurance Co., 2016 ONCA 877, at para. 47, the Court of Appeal characterized this new provision as “a significant amendment to the 1996 SABS”, stating that: “Once an insured person is determined to have suffered a catastrophic impairment as a result of an accident, this provision requires that retroactive payment is made, without regard to the question of when the insured person actually became catastrophically impaired” [emphasis added.] This passage alludes to the possibility that an insured might not, from an evidentiary perspective, meet the criteria for CAT from the date of the accident.

[122] In Tomec, the parties agreed that the plaintiff was not immediately rendered catastrophically impaired as a result of the injuries she sustained in a motor vehicle accident and did not meet the criteria for CAT as of 23 months after the accident. A central issue in the case was whether the plaintiff became CAT as of the second-year anniversary of the accident. At paras. 50 to 52 of its decision, the Court of Appeal noted that the possibility that a person might become CAT after a significant lapse of time was a justification for permitting the plaintiff to argue that her claim was not discoverable within two years of her accident.

[123] In sum, in Tomec, the Court of Appeal recognized that an individual who is eventually determined to be CAT might not have met the criteria for CAT at the time of the accident, or even for months or years afterwards. As noted in Van Galder, there is no language in the 1996 SABS like the deeming provision at s. 46(10) of the 2010 SABS. The question is therefore whether, in the absence of such a provision, an insured’s CAT status is retroactive to the date of the accident.

[124] Interpreting the 1996 SABS as proposed by the plaintiff would require me to assume that the legislature intended that s. 46(10) of the 2010 SABS applies retroactively, even though there is nothing in the language of the section that calls for is retroactive application and, in Van Galder, the Court of Appeal characterized s. 46(10) as a significant change in the law.

[125] In accordance with Tomec, I am required to interpret the SABS to maximize the benefits that the legislature has put into place. Doing so does not however permit the creation of an entitlement that would not otherwise exist.

[126] Adoption of a “Once CAT, always CAT” rule would unquestionably make it easier for an individual in Mr. Roy’s situation to establish entitlement to retroactive benefits once that individual is determined to be CAT. In Tomec, at para. 50, the Court of Appeal instructed courts to be aware of the significant disparity in resources between insurance companies and their insureds. I do not think, however, that either of these considerations supports a conclusion that s. 46(10) of the 2010 SABS to applies retroactively.

[127] Lastly, the plaintiff argues that the court ought to accept his interpretation of the 1996 SABS because of admissions made by Ms. Micor. At one point during her cross-examination, she agreed with the suggestion that, when a person applies for retroactive ACBs, the issue from the insurer’s perspective is whether the individual required services, not the status (CAT or not) of the individual. A short time later, however, Ms. Micor attempted to resile from this position, characterizing “Once CAT, always CAT” as “debatable”. Her evidence on this issue as a whole was confusing and inconsistent. In any event, Ms. Micor’s interpretation of the SABS does not bind the court.

[128] I conclude that Mr. Roy cannot be deemed CAT from the date of his accident simply because TD eventually determined him to be CAT.

[129] As an alternative argument with respect to “Once CAT, always CAT”, the plaintiff’s counsel proposed that the determination of CAT status gives rise to a legal presumption that the insured was CAT from the date of the accident.

[130] In my view, there is no need for such a presumption. The central question in every case like this is an evidentiary one: has the insured established that they meet the criteria for CAT status and, if so, as of what date? There may be situations where an insured’s condition and functional abilities from the date of the accident do not change in any significant way over time. In such cases, a court might well infer, based on the evidence, that the insured was always CAT. But the fact that there may be a compelling factual inference in some cases does not mandate the imposition of a legal presumption in every case.

(ii) Change of position

[131] Mr. Roy contends that TD has, in defending this action, represented that the only matter in dispute is the level of attendant care services that Mr. Roy needed from April 2004 to December 2010, as opposed to whether he was CAT during that period. He argues that, having taken this position, TD cannot now argue that Mr. Roy must prove that he has met the criteria for entitlement to these benefits, that is, his CAT status from the date of the accident.

[132] Having reviewed the statements made by TD’s counsel of record during examinations for discovery, I do not think that he unequivocally waived the defendant’s right to argue that Mr. Roy was not CAT from the date of the accident. Mr. Roy’s lawyer did not put this proposition squarely to the witness or TD’s counsel, and he did not obtain the admission that he is now effectively arguing that TD made.

[133] During Ms. Szydlik’s examination for discovery on January 16, 2019, Mr. Roy’s lawyer asked for clarification on various allegations in the statement of defence. At paragraph 2 of the defence, for example, TD denied that Mr. Roy “suffered any impairments as a result of a motor vehicle accident that occurred on or about April 24, 2004”. [10] Mr. Griffiths responded to questions about this paragraph with the following statement at Q. 113:

We acknowledge your client is catastrophically impaired and did suffer impairments as a result of the motor vehicle accident.

[134] This is a clear and binding admission by TD that, notwithstanding the broad denial at paragraph 2 of its statement of defence, Mr. Roy currently meets the CAT criteria. Based on this admission, TD could not have argued, at trial, that Mr. Roy is not now catastrophically impaired. (I would add that, even if TD’s lawyer had not made this admission, it would be impossible to reconcile TD’s denial in its statement of defence with its written acknowledgement, in 2014, that Mr. Roy meets the CAT criteria and its payment to him of retroactive ACBs as of January 12, 2012.)

[135] At this same discovery, Mr. Roy’s lawyer asked questions about TD’s response to his claim for ACBs. In paragraphs to 3 to 8 of its statement of defence, TD denied that Mr. Roy had an impairment that resulted in “a substantial inability that requires the quantum of attendant care or any attendant care as alleged” (para. 3), that anyone provided any attendant care services to Mr. Roy (para. 4), or that he had provided sufficient details of the alleged services provided by any attendant care providers (para. 7). It further denied, at paragraph 6 of the statement of defence, that Mr. Roy “meets any of the eligibility criteria for attendant care expenses in dispute beyond the 104-week mark in accordance with section 18 of the SABS”.

[136] Asked about this last denial at Q. 116 of the January 16, 2019 discovery, TD’s counsel explained its position as follows:

Q: I take it paragraph 6 is again – really just was thrown in by your office, but you admit that he does meet eligibility requirement for attendant care expenses beyond the 104-week mark. The only dispute is does it cover the period that we are disputing? A: Well, I guess it depends on what we mean by eligibility criteria. He is eligible to apply for benefits in a legal sense and feel free to apply but because the time period that we are fighting about goes obviously into the post-104 week period, I think that our view is whether from a medical perspective and impairment perspective, whether there was an actual need for attendant care and the level of service that was required during that period is, from our perspective, what’s very much in dispute. So, you know, strictly speaking, eligibility criteria, absolutely entitled to apply, we are not raising any legal argument that there’s some prohibition of, you know, applying for benefits during that period of time, it’s simply a dispute over essentially function in terms of an impairment and services that were or were not delivered during that period of time. [Emphasis added.]

[137] Mr. Roy says that, by conceding that he could apply for retroactive benefits, TD’s counsel waived its right to require Mr. Roy to prove that he met the CAT criteria between April 24, 2004 and December 2010. In their testimony at trial, Ms. Micor and Ms. Szydlik likewise both conceded that Mr. Roy was “eligible” to apply for retroactive benefits.

[138] In my view, however, there is a significant difference between the formal acknowledgement made by TD’s counsel of Mr. Roy’s current CAT status and his explanation of TD’s position with respect to Mr. Roy’s entitlement to retroactive benefits. The statement that Mr. Roy is “eligible in a legal sense” is ambiguous. It could be a simple acknowledgement by TD’s counsel that there is a process, set out at s. 3(1.5) of the SABS, whereby a person injured in a motor vehicle accident between November 1st, 1996 and September 1st, 2010 could apply for a determination of CAT status on a retroactive basis. Alternatively, it could mean that TD conceded that Mr. Roy was CAT from the date of the accident.

[139] I can understand why the statement by TD’s counsel that the focus of the dispute was “whether there was an actual need for attendant care and the level of service that was required during that period” may have led Mr. Roy to believe that his CAT status would not be contested at trial. This was reinforced by TD’s failure to serve an expert report supporting the argument that Mr. Roy developed a catastrophic impairment only some time after the accident.

[140] Unfortunately, Mr. Roy’s lawyer did not confirm his understanding of TD’s position by asking TD’s representatives at discovery or at trial an unambiguous follow-up question such as: “Does TD admit that Mr. Roy met the criteria for catastrophic impairment from the date of the accident?” Such a question would have required TD to provide an unequivocal and binding answer.

[141] In summary, I find that TD did not clearly waive its right to contest at trial whether Mr. Roy’s CAT status dates from the date of the accident or some time thereafter.

(iii) Mr. Roy’s condition between April 24, 2004 and December 2010

[142] Based on the evidence at trial, I find that, as of April 24, 2004 Mr. Roy met the criteria for designation as CAT under clause (g) of s. 2(1.2) of the 1996 SABS, and that he has continued to be CAT ever since.

Mr. Roy’s evidence

[143] Mr. Roy testified that, since the accident, he is no longer capable of doing many things that he did before. He said that he is largely dependent on his wife, Mrs. Brunet-Roy. He described her as his nurse, his defender, and effectively a single parent to their children.

[144] Mr. Roy characterized the months after the accident as intensely confusing and difficult. He said that there were “all kinds of people” around the house, and he did not know who they were. He had no memory of two of the three occupational therapists who provided services at his house in 2004 and 2005. Mr. Roy testified that he struggled with documents that were presented to him, most of which were written in English. He recalled sometimes getting very angry and demanding the documents in French. He did not understand what he had to do to obtain assistance from TD.

[145] Mr. Roy also acknowledged that he did not want help, or want to admit that he needed help, particularly during the first two years after the accident. When he saw Dr. Bender, his family physician, Mr. Roy would tell him that he was okay. The only person Mr. Roy trusted was his wife. Mr. Roy said that he was “like an animal” and did not want anyone else around him. He described his state as fragile and depressed, “like a piece of glass that was melting”.

[146] There were many things about his claim for benefits that Mr. Roy did not understand or remember. For example, he said that he does not understand what attendant care is, although his wife has tried to explain it to him. He does not know what a case manager does. He testified that he relied and continues to rely on Mrs. Brunet-Roy to manage the couple’s lives, their household and their communications with other people.

[147] Mr. Roy stated that he feels at ease with Ms. Cousineau and thinks that she understands his needs. He does not however understand her 2015 report or why she wrote it. He does not remember any explanation she provided or when they first met. He does not know what information he provided to her. The information provided to Ms. Cousineau about his past condition would have been based on Ms. Brunet-Roy’s memories, not his. Mr. Roy has no idea how Ms. Cousineau calculated the amounts set out in her reports.

[148] According to Mr. Roy, he cannot do some activities of daily living independently, even if using assistive devices. He has, since the accident, been unable to independently manage these tasks.

[149] Mr. Roy’s testimony illustrated how his injuries have affected his cognitive abilities. I find that he sincerely tried to do his best to answer questions put to him. There were, however, gaping holes in his memory. He sometimes contradicted himself. He struggled to understand some relatively simple concepts. The limitations I observed during Mr. Roy’s testimony are consistent with observations made by Drs. Suddaby, Payne, Morrison and Roy. These limitations are also consistent with the evidence of Mrs. Brunet-Roy and Ms. Cousineau about the reliability of Mr. Roy’s self-reports.

[150] Even in the absence of these challenges, I infer that Mr. Roy would have found it difficult to talk about how his injuries have affected his life. Prior to the accident, Mr. Roy was self-sufficient. He did not have much formal education but worked hard to improve his situation and that of his family. Mr. Roy was visibly proud of how he and his wife had raised their children together, taking steps to ensure that the children became bilingual and pursued post-secondary education. Since the accident, he has been unable to manage both the physical and mental tasks that he had previously accomplished easily. Testifying about his injuries required Mr. Roy to acknowledge what he had lost. More than fifteen years after the accident, he remained bewildered and devastated by the turn his life has taken.

[151] I accept Mr. Roy’s limited testimony about his ongoing limitations, because it is consistent with other evidence that I find reliable. With respect to earlier periods, Mr. Roy could not, for the reasons already mentioned, provide the court with much concrete information about how his condition has evolved since the accident. I do however accept Mr. Roy’s testimony about his mental state and, in particular, his mistrust of people other than his wife in the months immediately following the accident. That evidence is corroborated by that of Mrs. Brunet-Roy and by other contemporaneous evidence.

[152] I also rely on written evidence of Mr. Roy’s perception, a few weeks after the accident, of the impact of his injuries on his psychological state. On June 4, 2004, Mr. Roy completed an “Activities of Normal Life” (OCF-12) form for TD. In response to questions about cognitive tasks, controlling his emotions and behavior, and communication, Mr. Roy reported on the form that he could not:

• read or remember what he had read;
• drive;
• relate to other people without irritability or losing his temper; or
• participate in social activity.

[153] On the form, Mr. Roy indicated that he needed help keeping appointments, remembering to do errands, planning or organizing meals and shopping, remembering and following directions, and prioritizing activities. He could “partially” follow a movie or television show, keep track of a conversation, find words to express his thoughts and write so that others would understand.

[154] I find that Mr. Roy accurately reported his limitations on this June 4, 2004 form. He had no reason at the time to exaggerate or misrepresent his limitations. I have already found that he disliked acknowledging them. Mrs. Brunet-Roy testified that, even today, she does some household chores behind her husband’s back, so he does not feel that she is undermining him or lacks confidence in his abilities. This speaks both to Mr. Roy’s lack of insight into his own limitations and to the fragility, to this day, of his self-esteem.

Mrs. Brunet-Roy’s evidence

[155] Mrs. Brunet-Roy was a credible and compelling witness whose testimony I accept without reservation. She described the impact of her husband’s injuries on their lives at length. I will refer to that evidence in detail when considering Mr. Roy’s claim for ACBs prior to January 2011.

[156] I accept Mrs. Brunet-Roy’s description of how Mr. Roy’s injuries have affected his ability to do basic household tasks and activities of daily living. She meticulously described what she was required to do each day in the weeks and months following the accident. She provided specific examples of her husband’s current limitations in routine tasks such as preparing meals or going to the grocery store. Her evidence on these matters was not shaken in cross-examination.

[157] I also accept Mrs. Brunet-Roy’s evidence about Mr. Roy’s cognitive struggles, moods and emotional state over the past 15 years and how they have forced her to take certain precautions. For example, Mr. Roy once almost set fire to the kitchen when trying to bake cookies on his own.

[158] Mrs. Brunet-Roy described two specific incidents when Mr. Roy engaged in violent behaviour. During a local rodeo event, Mr. Roy became angry that his view was blocked and physically tried to force a person standing in front of him to sit down by pushing down on his shoulders. Mrs. Brunet-Roy had to intervene so that Mr. Roy would not be charged with assault.

[159] On another occasion, Mrs. Brunet-Roy no longer felt able to cope with the demands arising from Mr. Roy’s post-accident condition and left their home for an evening. In response, Mr. Roy threatened to end his life.

[160] Mrs. Brunet-Roy’s evidence with respect to these episodes was sincere and entirely believable. It drove home the implications of her husband’s impairment and his need for attendant care.

[161] Mrs. Brunet-Roy acknowledged in cross-examination that she did not keep any notes on Mr. Roy’s condition between 2004 and 2010. She relied on her memory. She testified that there were many things that had not changed, so it was not hard to remember what she and her husband had gone through. Her testimony on this point was consistent with other reliable evidence and I again accept it.

[162] Counsel for TD argued that Mrs. Brunet-Roy was vague about how Mr. Roy’s abilities had changed over time. Mrs. Brunet-Roy described the impact of Mr. Roy’s post-accident condition during various periods. She admitted when she did not recall certain details; this enhanced rather than detracted from her credibility. I find that her account of Mr. Roy’s chronic pain, lack of tolerance for physical activity, psychological and cognitive issues did not vary much because, by all accounts, his condition has not changed significantly over the last fifteen years, aside from post-surgical periods when his physical limitations were more acute.

[163] TD directly challenged Mrs. Brunet-Roy’s credibility on a few points. Defence counsel pointed out, for example, that since 2008 the couple has spent an occasional month or two in Florida, travelling there by car. They also went on a trip to Italy. Mrs. Brunet-Roy explained that the drive to Florida was very slow, because Mr. Roy could not tolerate being in the same position in the car for more than a few hours. This evidence is not inconsistent with Mrs. Brunet-Roy’s evidence of Mr. Roy’s limitations. It is corroborated by both Ms. Cousineau’s observations and the substantive content of the reports of the assessors retained by TD.

[164] Defence counsel challenged Mrs. Brunet-Roy to explain why, after the accident, Mr. Roy kept paying fees to retain his crane-operator’s license. She explained that he did not want to acknowledge that he would never be able to return to this work. This explanation is consistent with evidence about Mr. Roy’s mental state and his inability to recognize his own limitations.

[165] Counsel for TD also suggested that Mrs. Brunet-Roy lied when she said that she retired from her job to take care of Mr. Roy; the real reason, according to TD, was that Mr. Roy settled his tort claim against the other driver in the MVA, and the couple decided that they wished to spend winters down south. When this theory was put to Mrs. Brunet-Roy in cross-examination, she laughed at it. I accept Mrs. Brunet-Roy’s explanation that she found it increasingly difficult to work full-time while managing Mr. Roy’s care and reject TD’s theory on the point.

The Sibley OTs

[166] Louise Hardy was retained by Sibley to conduct in-home assessments of Mr. Roy in May and June 2004. Stephanie Harvey replaced her from July to December 2004, and Chris Costello took over from her in January 2005.

Evidence of Chris Costello

[167] I gave Mr. Costello’s evidence very limited or no weight. He did not remember any of his interactions with Mr. Roy or his assessments of him. TD produced unsigned copies of the reports and Form 1s prepared by Mr. Costello with a notice under s. 52 of the Ontario Evidence Act, RSO 1990, c E.23. Mr. Costello was not even prepared to say that the reports and forms he purportedly completed were his work product. He testified that Sibley sometimes modified documents that he submitted, and that it could have changed his calculations of the benefits that Mr. Roy required in 2005.

Evidence of Stéphanie Harvey

[168] Ms. Harvey first met with Mr. Roy on July 15, 2004 and completed an OT intervention report for TD the same day. She prepared two further such reports on August 12 and September 15, 2004, and more formal s. 42 assessment reports on October 21 and November 24, 2004. She submitted five Form 1s from July to November 2004, although the first one is missing from the file.

[169] When giving evidence at trial, I think that Ms. Harvey attempted to assist the court as best she could in understanding her interactions with Mr. Roy and the reasons for her assessments and recommendations. Ms. Harvey did not share Mr. Costello’s reservations about the authenticity of reports and forms bearing her name, even though almost all of them were also unsigned copies. She was however hampered by a lack of any recollection of his case and her departure from the field of occupational therapy more than twelve years ago.

[170] After graduating with a degree in occupational therapy in 2002, Ms. Harvey worked at a local hospital for about six months before joining Sibley in early 2003. She continued in this capacity until 2007, when she stopped working as an OT.

[171] When she began seeing Mr. Roy, Ms. Harvey had received minimal guidance in assessing and quantifying the needs of patients applying for ACB. She attended only a week’s training in Toronto on motor vehicle accident law after she was hired by Sibley. She also had little practical experience in dealing with patients who had traumatic brain injuries. She admitted during her testimony that, if an OT is unaware that a client has a brain injury, cognitive impairments and limitations may be overlooked.

[172] In her reports, Ms. Harvey repeatedly recognized that Mr. Roy was struggling with cognitive and psychological issues:

• In her very first report after meeting Mr. Roy, Ms. Harvey noted that he initially appeared “apprehensive and hostile”.
• In her September 2004 assessment, Ms. Harvey wrote: “Mr. Roy reports that he initially thought that the frustration and the cognitive symptoms were temporary and only related to the trauma. As those symptoms are persisting, he reports that he wants to ask his family physician for a referral to address those issues”.
• In her October 2004 report, Ms. Harvey identified cognitive problems as ongoing barriers to rehabilitation. She also noted that Mr. Roy was working with a psychologist on “anxiety, aggressiveness and cognition (i.e., memory, attention, etc.)”. She concluded that Mr. Roy required assistance not only because of safety issues related to his physical limitations but due to persistent migraines and unspecified “cognitive/behavioural functions”.
• In her November 2004 report, Ms. Harvey again referred to cognitive problems as a barrier to rehabilitation. She recorded Mr. Roy’s complaints of migraines, decreased memory, frequent nightmares, and difficulty in keeping focused when trying to read.

[173] At trial, Ms. Harvey agreed that the cognitive and psychological problems she noted could have had an impact on Mr. Roy’s ability to perform functional tasks. Yet there was almost nothing in her reports documenting the extent of that impact or recommending any specific services required as a result of these problems. In her November 2014 report, Ms. Harvey did mention that problems with attention and aggressiveness might affect Mr. Roy’s ability to drive long distances. She also stated that barriers to rehabilitation included both physical issues (Mr. Roy’s unresolved injuries to both legs and wrists) and unresolved migraines and cognitive issues. But she did not mention any specific impact that headaches or cognitive issues, or other problems such as decreased memory or lack of focus, might have on his daily activities.

[174] Ms. Harvey agreed during her testimony that cognitive testing might have helped to identify Mr. Roy’s limitations and needs, but she did not recommend or arrange for any follow-up.

[175] Based on the foregoing, I find that Ms. Harvey failed to thoroughly and accurately assess or record Mr. Roy’s functional limitations or attendant care needs in 2004.

[176] Beyond this, some recommendations that Ms. Harvey made for attendant care services simply did not reflect Mr. Roy’s physical and functional limitations. For the most part, Ms. Harvey appears to have accepted at face value Mr. Roy’s own account of his progress, and did not take steps to ensure that what he told her was accurate. She did not, it appears, ask Mrs. Brunet-Roy to corroborate what her husband reported; her October 2004 assessment is the only report where Mrs. Brunet-Roy’s presence was noted during an in-home visit by Ms. Harvey. This is unsurprising, since Mrs. Brunet-Roy had returned to her full-time job as of May 2004 and so would not have been in the house during OT visits.

[177] I have already found that Mr. Roy did not accurately report his own limitations. I find that Ms. Harvey did not take this possibility into account when she conducted her assessments and completed her Form 1s. She did not consider whether Mr. Roy’s reporting might reflect his hostility to having outsiders in his home. Nor did she consider that Mr. Roy’s reporting might reflect an overly optimistic view of his progress or other psychological, cognitive or behavioural impacts of the accident. Ms. Harvey did not question what Mr. Roy told her even when the information received was at odds with her own observations.

[178] These shortcomings in Ms. Harvey’s assessments were reflected in her allocations of attendant care services in the Form 1s completed by her in 2004. She did not account for how Mr. Roy’s cognitive and psychological problems affected his ability to carry out activities of daily living, or increased his need for attendant care services.

Louise Hardy

[179] Ms. Hardy was a much more experienced OT than either Ms. Harvey or Mr. Costello. Although she had little or no direct recollection of Mr. Roy’s case, she was better able than the other Sibley OTs to reconstruct her interactions with Mr. Roy based on her reports at the time. [11] Ms. Hardy’s testimony was forthright, nuanced and made a great deal of sense.

[180] During her testimony, Ms. Hardy admitted that her insight into Mr. Roy’s needs was hampered by two things: her lack of experience treating patients with brain injuries and her inability to gain his trust.

[181] Ms. Hardy said that a relationship of trust is necessary in order to get reliable information from a client or from collateral sources in their household. She noted that, by entering their home, an occupational therapist intrudes on their client’s personal life. If she cannot develop a personal rapport with the client and his family, she is seen as an intruder.

[182] Ms. Hardy acknowledged that some clients may under-report their disability. They may not volunteer relevant information, or they may say whatever they think will prompt an outsider to leave their home. As Ms. Hardy stated, “they nod and say everything is okay”. This is the most difficult kind of client to assess, because one party to the therapeutic relationship is not collaborating. Ms. Hardy noted that she cannot force someone to undergo assessment for an activity that they report they can do independently. As a result, if a client tells her that he can do something, she accepts them at their word and does not ask for a demonstration.

[183] Ms. Hardy said that she failed to develop an effective relationship with Mr. Roy. In June 2004, after four in-home visits, she asked to be replaced because she could not assess him accurately or provide him with the assistance he needed.

[184] Ms. Hardy did not know, at the time, that Mr. Roy had sustained a mild traumatic brain injury. During her brief involvement in his case, however, she noted that he was unusually teary and emotional. She did not document any cognitive issues, and none were noted by the hospital on the referral. She nonetheless testified that she might have recommended a cognitive assessment, had she remained on the file.

[185] Ms. Hardy further acknowledged that the treatment of a client with a brain injury requires special training that she did not have. Her assessments did not take a potential brain injury into account. In cross-examination, she agreed that she relied largely on Mr. Roy’s self-reports. She might not have done so if she knew he had a brain injury. If in fact she had known that he might have sustained a brain injury, she might not have agreed to become involved in his case.

[186] I accept Ms. Hardy’s evidence that she was able to gain little insight as to how well Mr. Roy was functioning at the time. She relied on his self-reports about his ability to do basic tasks. These reports were unreliable because he did not want to acknowledge his lack of self-sufficiency to someone he viewed as an outsider, and because he was not yet prepared to acknowledge his own limitations.

Medical reports from April 24, 2004 to early 2007

[187] The parties have each filed medical reports by health practitioners who have treated or assessed Mr. Roy since the accident. These reports were served with notices under s. 52 of the Evidence Act. None of the authors of these reports were called to testify at trial.

[188] I do not need to comment on every report by surgeons and other specialists who treated Mr. Roy from April 24, 2004 to December 2010. Given arguments raised by the parties about their impact, however, I must address the reports of Dr. Jacques Bender, Mr. Roy’s family physician, and Dr. Marie-Josée Roy, his psychologist.

[189] Dr. Bender has been Mr. Roy’s family physician since 1998. He saw Mr. Roy during a house call on May 24, 2004. Between late August 2004 and early January 2006, Dr. Bender saw Mr. Roy seventeen more times at his office.

[190] On January 23, 2006, Dr. Bender provided Mr. Roy’s lawyer with a report. In this report, Dr. Bender expressed the view that Mr. Roy was totally disabled from his pre-accident employment and likely permanently unfit to do heavy work. He commented, however, that Mr. Roy had improved “a great deal” since the accident. He wrote that Mr. Roy:

is now autonomous for his activities of daily living: food preparing, washing of clothes, doing basic house work, washing of dishes and shopping. He tolerates up to 2 hrs on even terrain and has a routine of 1 hour of exercises per day. He still has limited range of motion of both ankles, his [right] wrist, [right] thumb, [right] 5th [proximate interphalangeal] joints.

[191] Dr. Bender indicated that Mr. Roy’s depressive disorder was under control with treatment and was not limiting his activities.

[192] Dr. Bender’s assessment of Mr. Roy’s psychological state is at odds with a report a year later by Dr. Marie-Josée Roy, the psychologist who began seeing him in the Fall of 2004. Dr. Roy continued to see Mr. Roy weekly or biweekly until at least 2007.

[193] In an assessment dated April 5, 2007, Dr. Roy wrote that Mr. Roy was suffering from severe symptoms of depression, including depressed mood, decreased interest in almost all activities, fatigue and lack of energy almost every day, a reduced ability to concentrate, loss of memory, insomnia and self-esteem issues. Mr. Roy also suffered from symptoms of PTSD, in her opinion. Since his near-fatal accident, he had been experiencing flashbacks and nightmares and hyperarousal. Dr. Roy concluded that Mr. Roy was still mourning the loss of his life before the accident and learning to live with a serious handicap in the form of chronic pain.

[194] TD’s counsel argued that Dr. Bender’s account of Mr. Roy’s independence and generally improved condition fatally undermines Mr. Roy’s claim that he required ACBs from April 2004 forward, above and beyond what he has already received. I disagree.

[195] Mr. Roy admitted that he has no memory of what he told Dr. Bender. There is however ample documentation of his functional and cognitive problems from April 2004 on, and of his limited tolerance for many activities. These problems and limitations are reflected in Dr. Roy’s reports but not in Dr. Bender’s reports. This is not surprising.

[196] Mr. Roy understated the extent of his limitations to the Sibley OTs. This was due to his grief over his loss of self-sufficiency, his lack of insight into his own limitations and a desire to simply be left alone. I similarly find that Mr. Roy under-reported the difficulties he was experiencing to Dr. Bender. Mr. Roy testified that, “in his head” he was independent, because he could move, and make a sandwich or heat soup in a microwave, and put a sheet in a dryer. He was proud to tell Dr. Bender about the progress he had made since the accident. In doing so, he gave him the impression that he was more self-sufficient than he actually was.

[197] In cross-examination, Mr. Roy said that he had no reason to disagree with Dr. Bender’s statement in the January 2006 report that his depressive order was under control with treatment and did not limit his activities. I do not give this admission any weight because, as I have already found, Mr. Roy has a limited recollection of his condition. As noted aptly by Ms. Cousineau, Mr. Roy is not a good advocate for himself or a good communicator of his own needs.

[198] I conclude that Dr. Bender relied on what his patient told him, and his patient did not provide him with an accurate account of his functional abilities. During his appointments with Dr. Bender, Mr. Roy focused on gains he had made since his accident as opposed to ongoing challenges. Mr. Roy aspired to independence but he had not achieved it. Despite what he told Dr. Bender in January 2007, he was not autonomous for activities of daily living, he could not tolerate standing for up to two hours, and his psychological and cognitive issues were limiting his ability to function.

[199] Dr. Roy’s account of Mr. Roy’s psychological and cognitive problems is consistent with other contemporaneous evidence and with the evidence of Mrs. Brunet-Roy. Dr. Roy was a specialist who focussed on her patient’s mental state and its impact on his ability to perform activities of daily living. There is no basis to conclude that Mr. Roy misrepresented or exaggerated his condition to her. Dr. Roy’s findings are moreover consistent with the findings of Dr. Suddaby and Dr. Payne in 2011 and 2014. As noted by Ms. Cousineau in her evidence, Mr. Roy’s cognitive impairment did not appear suddenly for the first time many years after the accident. He does not suffer from a degenerative condition. In the absence of any proof to the contrary, I find that his cognitive limitations would have been the same in 2006 as they were in 2014, when a cognitive assessment was performed.

[200] I therefore do not accept that statements in Dr. Bender’s reports about Mr. Roy’s improved state should be preferred to other evidence at odds with them.

Did Mr. Roy meet the criteria for CAT status from April 24, 2004 to December 2010?

[201] Mrs. Brunet-Roy had direct insight into Mr. Roy’s condition between April 24, 2004 and December 2010. She described how the accident transformed her husband from a strong and independent person to someone who could not complete straightforward tasks, such as making a simple meal or balancing a chequebook; from a socially outgoing person to someone who often lost his temper and could not tolerate most company; from a person who was fundamentally positive to someone prone to crippling depression and profound self-doubt.

[202] The evidence of Ms. Harvey and Ms. Hardy, based on their written observations of Mr. Roy in 2004, supports the portrait of a person who was cognitively impaired, emotionally volatile, and hostile to outside help. Mr. Roy was so resistant to Ms. Hardy’s attempts to assess him that she told Sibley to find another OT. During her testimony, she stated that she would have taken steps to obtain a cognitive assessment, had she realized that he suffered a brain injury in the accident. Ms. Harvey repeatedly noted that Mr. Roy had severe headaches and cognitive and behavioural problems, although she did nothing to follow up on these issues or to assess their full impact on his activities of daily living.

[203] Dr. Roy’s 2007 report paints the picture of a man wrestling with severe depression, PTSD, memory and cognitive problems, mood issues, chronic pain and fatigue. It is also consistent with the evidence of Mrs. Brunet-Roy.

[204] Based on the evidence I accept, Mr. Roy’s mood and cognitive issues have not changed significantly since the accident. The issues that have robbed him of basic self-sufficiency have persisted from day one. These are the same limitations which caused Dr. Payne and Dr. Suddaby to conclude, in 2011 and in 2013 and again in 2014, that Mr. Roy had a marked impairment due to a mental or behavioural disorder.

[205] There is no evidence that Mr. Roy’s condition worsened significantly between April 24, 2004 and December 2010, aside from the development of osteoarthritis in one ankle. His overall condition may have in fact improved. He became more lucid when he was discharged from the hospital in May 2004 and was weaned off powerful painkillers. He regained some physical independence in August 2004, when he regained the ability to walk, and again in 2014, when he had further ankle surgery. He also began receiving treatment for depression, PTSD and other psychological issues in late 2004.

[206] Given that Mr. Roy met the criteria for CAT based on his condition in early 2011, and the evidence indicates that his condition did not deteriorate significantly between April 24, 2004 and that date, I must conclude that he met the criteria for CAT from the date of the accident.

The relevance of TD’s handling of Mr. Roy’s file

[207] If I had any doubt about Mr. Roy’s condition during the period of April 2004 to the end of 2010, I would resolve the issue in his favour, based on my findings with respect to TD’s handling of the file up to December 2010.

[208] Pursuant to s. 39(7) of the SABS then in force, an insurer was required to take certain steps before terminating or reducing an ACB:

If an insured person is receiving an attendant care benefit and the insurer determines that the person is no longer entitled to receive the benefit or that the amount of the benefit should be reduced, the insurer shall require the person to undergo a designated assessment in accordance with section 43 and shall give the person notice of its determination and the requirement for the designated assessment, with reasons, no later than the date the next payment of the benefit is due. [Emphasis added.]

[209] If a DAC assessment was required under s. 39(7), then s. 39(9) directed that the insurer “shall, pending receipt of the report of the designated assessment centre, continue to pay the insured person the attendant care benefit in the amount that was being paid before the notice under that subsection was given” [emphasis added.].

[210] TD received formal assessments of Mr. Roy’s functionality from Ms. Harvey and Mr. Costello. These assessments were carried out pursuant to s. 42 of the SABS. This provision allows an insurer to require an insured to be examined by one or more health professionals, social workers or vocational rehabilitation experts, for the purpose of determining if the insured continues to be entitled to a benefit.

[211] TD reduced the ACB in June, July, August, September, October and November 2004, and in January, March, May and July 2005 and then terminated the payment of the benefit entirely in September 2005. At no point prior to reducing or terminating the benefits did TD require Mr. Roy to undergo a DAC assessment pursuant to s. 39(7) and s. 43 of the SABS. It follows that it did not continue to pay an ACB at the previously determined level pending a receipt of a report, as required pursuant to s. 39(9).

[212] In Michalski (Litigation Guardian of) v. Wawanesa Mutual Insurance Co., [2005] O.F.S.C.D. no. 150 (appeal dismissed at [2007] O.F.S.C.D. No. 217), at para. 135, the Ontario Financial Services Commission characterized DAC assessments required pursuant to s. 39 as a “safety net”, because they “ensure that attendant care benefits are not refused, reduced or terminated arbitrarily without a neutral assessment”. I agree with that characterization of DAC assessments.

[213] TD argued that it complied with the SABS because, when it advised Mr. Roy that it was terminating the ACB, it provided him with a form to sign if he wished to contest the decision, confirming that he consented to a DAC assessment.

[214] I note first of all that TD’s communications to Mr. Roy on this issue were confusing and inaccurate.

[215] In a letter written to him in late September 2005, TD told Mr. Roy that the ACB would be terminated in October because 104 weeks had passed since the motor vehicle accident. It advised Mr. Roy that his entitlement to further benefits would be reviewed if he were deemed CAT. This was incorrect because, at the time, only 1.5 years (or roughly 76 weeks) had passed since the accident; even if Mr. Roy was not CAT, he was eligible for benefits until the two-year anniversary of the accident in late April 2006 (subject to the monetary caps, which he was not close to exceeding).

[216] In another letter to Mr. Roy dated October 21, 2005, TD stated that payment of the ACB had ceased as of October 1st, 2005, and added: “Should you DISAGREE with the stoppage of the Attendant Care Benefit, please sign and return this form in order to attend a Designated Assessment Centre”. This instruction contradicted what TD had told Mr. Roy in the letter it had sent three weeks earlier and was also inaccurate. The October 2005 letter was correct insofar as Mr. Roy continued to be eligible for benefits, even if not CAT, until the second-year anniversary of the accident. But it was incorrect insofar as it suggested that TD could terminate the ACB without first requiring Mr. Roy to attend a DAC assessment.

[217] I furthermore find that TD’s notices did not comply with the SABS.

[218] TD argued that the standard practice within the insurance industry in 2004 and 2005 was not to require the insured to attend a DAC assessment unless the insured contested a reduction or termination of an ACB. TD presented no evidence, however, as to the “standard practice” within insurance industry at the relevant time.

[219] The language of ss. 39(7) and (9) of the 1996 SABS is unambiguous and mandatory. Even if TD had led evidence to show that other insurers ignored their obligation under the SABS, that practice would not have justified TD doing so. The use of a standard form does not relieve an insurer of its obligation to comply with mandatory provisions in the Insurance Act or the SABS; Smith v. Co-Operators General Insurance Co., at para. 19.

[220] The evidence furthermore indicates that TD did not, more generally, respect its duty of good faith to Mr. Roy. This duty is emphasized repeatedly in caselaw, reviewed below, and conceded by the TD adjusters who testified at trial. They acknowledged that the Ontario automobile insurance regime is complex and that insured persons frequently require guidance in navigating their entitlement to benefits.

[221] Ms. Strokan, who adjusted Mr. Roy’s file from March to October 2012, testified that adjusters must be familiar with the SABS so the adjusters can fulfill their duty of good faith to insureds. She agreed that this duty generally involves placing their insured’s interests ahead of that of the insurer and requires adjusters to provide the insureds with information about their rights, including their right to contest any determination made by the insurer.

[222] Ms. Strokan further agreed that the adjuster is generally the insured’s source of information about the SABS. An adjuster would typically give insureds an explanation of the forms that they are required to complete to claim reimbursement for various expenses, and guide them through the claims process. Ms. Strokan testified that compliance with the SABS would be the “number one priority” for an adjuster.

[223] Ms. Szdylik admitted in cross-examination that, if TD had information that reasonably indicated that Mr. Roy might meet a particular criterion for CAT, it was obliged to consider whether he qualified under that criterion, even if he relied on another criterion in his application. More generally, if an insurer knows that an insured is entitled to a benefit, the insurer is required to advise them of this, even if they have not applied for it. This obligation is ongoing: if the insurer obtains new information over the course of time, they have to let the insured know how this affects their entitlement.

[224] In sum, Ms. Strokan and Ms. Szylik acknowledged that TD has a duty to advise its insureds about their eligibility for SABS benefits, and to consider that eligibility even in the absence of a request by the insured to do so.

[225] This evidence is particularly relevant in Mr. Roy’s case, because the only way he might be deemed CAT is if he met the criteria of whole-person impairment (clause (f)) and marked mental or behavioural impairment (clause (g)). Some of the CAT criteria are self-evident; an insured who was rendered paraplegic or completely blind would have no trouble recognizing his entitlement to a favourable CAT determination. By contrast, the criteria in clause (f) and (g) are neither intuitive or obvious. An insurer that has information that suggest that a victim of a motor vehicle accident might meet these criteria should be expected to give more rather than less guidance in their insured.

[226] TD did not call, as a witness at trial, the adjuster on Mr. Roy’s file in the period between April 2004 and March 2012, or indeed any employee involved in Mr. Roy’s file prior to August 2010. There is no evidence that any TD adjuster or claims representative took any steps, prior to 2011, to advise Mr. Roy with respect any benefits he might be entitled to receive, much less provide guidance of the dispute resolution process should he wish to contest the gradual reduction and termination of his ACB.

[227] There is another problem with TD’s notices to Mr. Roy. Mr. Roy is a unilingual francophone. Virtually all of TD’s communications to him were written in English. TD sent Mr. Roy some form letters in French, or a mixture of French and English, in the first few months after his accident. This practice had apparently ceased by October 2004.

[228] In a file note dated October 15, 2004, a TD adjuster recorded that Mr. Roy had requested that all correspondence be sent to him in French. The adjuster deemed this request unreasonable because Mr. Roy’s wife and son-in-law spoke English. A note on file dated March 20, 2007, indicates that TD received a further request from Mr. Roy for a French translation of its written communications to him. TD rejected the request because, according to the adjuster’s note, the cost of the translation was “too extreme”.

[229] I conclude that, in its handling of Mr. Roy’s file prior to receipt of his application for CAT determination in December 2010, TD failed to comply with its duty of good faith to its insured, which required it to assist Mr. Roy in navigating the SABS regime and to meaningfully consider his potential entitlement to benefits. When TD terminated the ACB in 2005, it knew that Mr. Roy’s injuries had given rise to psychological, cognitive, behavioural and mood issues. Two months after the accident, it received a self-assessment form, completed by Mr. Roy at TD’s request, that indicated that these issues had a significant impact on his day-to-day functioning. Mr. Roy’s self-assessment was corroborated by comments by the Sibley OTs and Mr. Roy’s case manager. It was also consistent with reports from his psychologist, Dr. Marie-Claude Roy, documenting ongoing psychological and cognitive issues. TD eventually settled Mr. Roy’s claim for income replacement benefits – effectively conceding that he could not return to work ever again – based on the long-term physical and psychological impact of his MVA injuries.

[230] Despite this, TD took no steps in 2004, in 2005, or at any point prior to January 2011, to obtain a cognitive assessment or otherwise explore whether Mr. Roy might be CAT under clause (f) or (g). TD did not even arrange for Mr. Roy to attend a DAC assessment before terminating his ACB, as it was legally required to do. It did not at any time notify Mr. Roy, in an effective way, of his right to seek a CAT determination. Its adjusters provided him with little, if any, guidance through the labyrinthine SABS regime. They misinformed Mr. Roy about his rights when it terminated the ACB. To add insult to injury, TD was not even willing to go to the trouble and expense of communicating with its insured in a language he could understand.

[231] The impact of TD’s failure to respect both its statutory obligations and its duty of good faith to Mr. Roy prior to December 2010 was two-fold. It prevented Mr. Roy from the benefit of the safety net provided by a DAC. It also prevented both Mr. Roy and TD from obtaining information relevant to both his entitlement to ACB and HKB in the first two years after the 2005 accident and his eligibility for longer-term benefits based on a CAT determination. By failing to arrange for a DAC and otherwise to follow up on information about his cognitive, behavioural and psychological issues, TD lost an opportunity to obtain a complete and accurate picture of Mr. Roy’s condition.

[232] In these circumstances, I conclude that TD is foreclosed from arguing that it should not have to pay retroactive benefits based on a lack of clear evidence that Mr. Roy was catastrophically impaired in the period between April 24, 2004 and January 2011. If there had been any uncertainty as to whether Mr. Roy was CAT during that period, that uncertainty would have been the direct result of TD’s failure to fulfil its obligations to its insured. It would be profoundly unfair to Mr. Roy, and antithetical to the purpose of the SABS regime, to visit on Mr. Roy the consequences of TD’s failure.

[233] As I have already found, however, the evidence in any event establishes that Mr. Roy suffered from the same psychological, cognitive and behavioural impairments as of April 24, 2004 from which he continues to suffer at present. He was therefore CAT from the date of the accident and is entitled to retroactive benefits consistent with his CAT status from the date of the accident forward.

b. Is Mr. Roy entitled to retroactive ACBs and, if so, in what amount?

[234] Ms. Cousineau completed a retrospective assessment of Mr. Roy and Form 1s for eight discrete periods between April 24, 2004 and December 2010. The ACB amount she calculated for each period varied based on her assessment of his need for assistance, taking into account his physical, cognitive and psychological functioning at the time. The total amount of the ACB at issue for that 6.5-year period is $106,000.

[235] TD paid ACBs to Mr. Roy for the period from mid-May 2004 to late September 2005. TD’s position is that (a) Mr. Roy has not demonstrated that he incurred any expenses between April 2004 and December 2010 for any other attendant care services; and (b) any such expenses, if incurred, were not reasonable and necessary.

The test for entitlement to ACBs

[236] Section 16(1) of the SABS states that the insurer shall pay an ACB to an insured person who sustains an impairment as a result of an accident. This benefit “shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant” (s. 16(2)). The monthly amount shall be determined in accordance with Form 1 (s. 16(4)). For an accident on or after October 1, 2003, the maximum monthly benefit payable was $3000 per month, if the insured person did not sustain a catastrophic impairment as a result of the accident, or $6000 per month, if they did (s. 16(5)).

[237] Mr. Roy’s entitlement to retroactive ACBs depends on the application of s. 16(2) to the evidence, and in particular the meaning of “all reasonable and necessary expenses incurred” by him or on his behalf, as a result of his injuries from the motorcycle accident. I agree with TD that Mr. Roy must prove his entitlement.

[238] The meaning of the word “incurred” depends on the version of the SABS that applies to a particular claim. Mr. Roy’s entitlement is governed by the 1996 SABS. In Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, at paras. 35 and 36, the Court of Appeal described how courts interpreted “incurred” in this version of the SABS:

[E]xpenses were said to be incurred as long as there was a reasonable necessity for the service or item in issue and the costs of that service or item could be determined, with certainty, within a designated period. On that approach, expenses for goods and services could be incurred, even when those goods or services had not been provided or obtained. There was also no requirement that the insured have paid for, or assumed the obligation to pay for, the services or goods. [Emphasis added.]

[239] This interpretation was endorsed in Monks v. ING Insurance Company of Canada, 2008 ONCA 269, 90 O.R. (3d) 689 at paras. 46-52, and McMichael v. Belair Insurance Co. (2007), 86 O.R. (3d) 68 (Ont. Div. Ct.).

[240] Several cases relied on by TD – such as Simser v. Aviva Canada, 2015 CarswellOnt 422 (FSCO), and N.N. v. Certas Direct Insurance Company – revolve around the definition of “incurred” added to the SABS in 2010. These cases are not helpful to a determination of entitlement under the 1996 SABS.

[241] Based on the interpretation of “incurred” that applies to Mr. Roy’s claim, he does not need to show that he received or paid for any additional attendant care services in the period between April 24, 2004 and December 20, 2010. Whether services were provided to him by his wife or others at no cost, or whether he was able to survive without receiving the services, does not now limit his recovery. Mr. Roy need only show the category and level of services allocated on the retrospective Form 1s were reasonable and necessary.

Were the attendant care services claimed reasonable and necessary?

[242] TD contested any entitlement to retroactive ACBs prior to Mr. Roy’s application for a CAT determination. In particular, it contested his entitlement to any additional benefits for the period between May 13, 2004 and late September 2005, that is, the period during which Mr. Roy received ACBs based on the Form 1s submitted by the Sibley OTs.

[243] Ms. Szydlik testified that, when an OT assesses an insured person’s ability to perform activities of daily living, the assessment proceeds in the same way whether or not a person is CAT. Mr. Roy’s functional abilities were evaluated by the Sibley OTs in the first fifteen months after the April 2004 accident, and they calculated the ACB payable to him as a result. The ACBs calculated were never more than the $3,000 monthly maximum for a non-CAT claimant and generally were a lot lower. TD submits that I should assume that these initial assessments were performed correctly, given that Mr. Roy did not contest the gradual reduction over time and eventual termination of his benefits as of the fall of 2005.

[244] An insured’s entitlement to ACBs is fact-specific. It is based on evidence of their functional abilities at any given time. I am not bound by the assessment of the Sibley OTs if I conclude that they were inaccurate.

[245] I give no consideration to Mr. Roy’s failure to contest the reduction and termination of his benefits in 2004-05, given his state of mind and TD’s failure to comply with its obligations as an insurer.

[246] Having weighed the evidence, I find that the Sibley OTs consistently underestimated and overlooked Mr. Roy’s limitations resulting from his cognitive, psychological and physical limitations. Based on evidence about his condition that I accept, I find that he required attendant care services that were not identified in the Form 1s prepared by the Sibley OTs in 2004 and 2005. I accept Ms. Cousineau’s calculation of the ACBs to which Mr. Roy was entitled in that period, set out in the retrospective Form 1s she completed for periods between April 2004 and December 2010.

[247] To explain how I reached this conclusion, I will start with general findings about the evidence as to Mr. Roy’s needs at the time. I will then consider the specific evidence regarding Mr. Roy’s entitlement to ACBs during eight discrete periods up to December 20, 2010.

General findings

[248] I have already explained why I generally discount the assessments performed in 2004 and 2005 by the Sibley OTs. They relied on incomplete and often inaccurate information from Mr. Roy and often did not take steps to assess his abilities directly. They also failed to consider whether he had a serious cognitive or psychological impairment and, if so, the extent of any such impairment.

[249] Ms. Hardy had a great deal of experience generally as an OT, but no experience with individuals with brain injuries. She admitted that she was unable to form an effective relationship with Mr. Roy. Ms. Harvey was newly-graduated and had little practical experience. She also had little or no experience with patients with brain injuries or cognitive limitations. Ms. Harvey recognized that Mr. Roy had cognitive and mood issues but did not follow up. Mr. Costello could not even confirm that he prepared the reports that bore his name or affirm that the information they contain accurately reflects his observations at the time.

[250] Given these shortcomings, I give little weight to the calculations by the Sibley OTs of Mr. Roy’s attendant care needs and required ACBs in the Form 1s they completed in 2004 and 2005.

[251] By contrast, Ms. Cousineau’s opinion evidence regarding Mr. Roy’s attendant care needs from 2004 to 2010 was cogent, persuasive and consistent with foundational evidence that I accept.

[252] At trial, Ms. Cousineau was qualified as an expert witness to provide evidence in the area of occupational therapy, including the evaluation of functional capacity and assessment of attendant care needs under the SABS. She was the only expert witness who testified.

[253] Ms. Cousineau first saw Mr. Roy in September 2011 to assess his need for assistive devices and equipment. This assessment was carried out in preparation for Mr. Roy’s ankle fusion surgery in January 2012. Ms. Cousineau sought and obtained approval from TD for two further in-home visits to assess Mr. Roy’s functional abilities. These visits took place in September 2011 and March 2012.

[254] In her first occupational therapy report, dated April 3, 2012, Ms. Cousineau reported that Mr. Roy had ongoing mobility issues, pain in his neck, back and legs, mood swings, and cognitive deficits. He told her that he had the strength to complete most activities of daily living but relied heavily on his wife’s assistance to compensate for his memory deficits. He also advised her that pain levels and physical tolerances restricted his activities: for example, he could only remain standing for five minutes at a time.

[255] In her April 2012 report, Ms. Cousineau stated that Mr. Roy had been independent for activities of daily living prior to his ankle fusion surgery in January 2012, and that after recovering he remained independent with the use of adaptive devices.

[256] At trial, Ms. Cousineau explained that, when she first met Mr. Roy, she accepted his account of what he was able to do. She subsequently realized that his self-reports were not always reliable, because he was unable or unwilling to acknowledge his own limitations. Accordingly, for the purpose of later assessments, Ms. Cousineau relied primarily on the results of cognitive testing, her direct observations and information obtained from Mrs. Brunet-Roy. Ms. Cousineau concluded that Mrs. Brunet-Roy’s reporting was reliable because it matched up with the test results and Ms. Cousineau’s own observations of Mr. Roy’s performance of activities of daily living. Based on the objective data and the fact that there were no significant discrepancies in Mr. Roy’s function at any given time or from one day or week to the next, Ms. Cousineau did not think that Mr. Roy was exaggerating his limitations.

[257] I accept Ms. Cousineau’s explanation for statements in her April 2012 report that, in hindsight, overstated Mr. Roy’s ability to complete activities of daily living and his overall functionality.

[258] Despite her relatively positive assessment of Mr. Roy’s functionality in April 2012, Ms. Cousineau nonetheless recommended an in-depth cognitive assessment to permit her to complete her evaluation. She did not recommend any attendant care services in April 2012 because more than 104 weeks had passed since Mr. Roy’s accident. Ms. Cousineau understood that Mr. Roy had no further entitlement to ACB in the absence of a determination that he was CAT.

[259] After TD approved the recommendation in her April 2012 report, Ms. Cousineau performed a comprehensive in-home cognitive assessment of Mr. Roy later that year. Based on Mr. Roy’s results on standardized cognitive assessment tests and further information obtained from Mrs. Brunet-Roy, Ms. Cousineau concluded in her report on December 4, 2012 that:

• Mr. Roy’s attention and concentration were below average for a person his age.
• He had difficulty in recalling anything other than simple information, even when prompted. On a practical level, Mr. Roy would frequently misplace items in his house, and could not follow familiar recipes.
• His information processing was slower than expected.
• He demonstrated limited insight and awareness. Although he was aware of his memory difficulties, he tended to over-estimate his abilities.
• With respect to executive functioning – which Ms. Cousineau testified included “high order functions in non-routine situations, such as novel, conflicting or complex tasks” – Mr. Roy did well with concrete problem-solving tasks but was overwhelmed by more complex written problems and by the prospect of any tasks requiring planning and organization.
• Mr. Roy’s psychosocial function was affected by depression and decreased self-esteem. He had got some psychological counselling from Dr. Roy, but this had been discontinued when the family moved their residence to Ottawa.
• Chronic pain, mobility issues, lack of endurance for physical activities, and restrictions to the range of motion of some of his limbs were further ongoing limitations to Mr. Roy’s functioning.

[260] In her December 2012 report, Ms. Cousineau noted that Mr. Roy had not received any therapy to address his cognitive deficits. She recommended occupational therapy, the purchase of a smart phone, consultation with a physiotherapist with experience in treating post-concussive headaches, and consultation with a speech language therapist to improve Mr. Roy’s communication and socialization skills. TD accepted these recommendations six months later, after Mr. Roy was assessed by an occupational therapist who concurred with Ms. Cousineau.

[261] Ms. Cousineau’s first OT progress report incorporating her functional and cognitive assessments was submitted to Ms. Szydlik in October 2013. Ms. Cousineau submitted additional progress reports and, in early 2015, her comprehensive assessment.

[262] Mr. Roy began to receive occupational therapy in late 2013, pursuant to Ms. Cousineau’s recommendation. This happily allowed him to function marginally better and with less ongoing pain. Despite some gains, however, Ms. Cousineau reported in September 2014 that:

Cognitive impairments and anxiety complicate his functional presentation and further challenge his daily function. He continues to rely on assistance of his wife for many aspects of his daily life, including emotional support and to compensate for decreased cognitive function.

[263] In a report on November 18, 2014, Ms. Cousineau provided a practical example of how Mr. Roy’s limitations affected his day to day functioning. She watched him trying to make soup, something he had done routinely prior to his motor vehicle accident. Without help from his wife, Mr. Roy could not prepare the soup safely or well. He misread the written instructions, mis-measured ingredients and missed steps in the recipe. Mr. Roy was also overwhelmed by pain while trying to cook. At trial, Ms. Cousineau said that she attempted, over the next few months, to help Mr. Roy identify strategies that would enable him to prepare food without his wife’s assistance. Despite her efforts, he could not even make oatmeal consistently without errors.

[264] At trial, Ms. Cousineau explained how she retrospectively assessed Mr. Roy’s functioning and needs for attendant care services. Her January 2015 report included a comprehensive review of Mr. Roy’s medical records and other information on which Ms. Cousineau relied. Ms. Cousineau identified the information that she found to be relevant for each discrete period for which she prepared a retrospective Form 1 and the bases for her allocation of the three levels of attendant care services.

[265] Ms. Cousineau was an impressive witness. Her evidence was clear, nuanced and professional in tone. She was familiar with the details of Mr. Roy’s medical history and supported her conclusions and recommendations with references to contemporaneous records as well as her own observations of Mr. Roy’s ability to carry out the tasks of daily living. I accept her opinion about Mr. Roy’s past and current abilities and needs.

[266] I base this acceptance not only on Ms. Cousineau’s general credibility as a witness, but on the fact that TD has accepted, without modification, her assessment and calculation of Mr. Roy’s attendant care and housekeeping needs over the last nine years. This includes her retrospective evaluation of Mr. Roy’s needs for the period from January 2011 to November 2014.

[267] Since TD has accepted Ms. Cousineau’s retrospective and ongoing calculation of the AC benefits payable to Mr. Roy from January 2011 forward, I reject its submission that her assessment for earlier periods is fundamentally flawed.

[268] I also accept Ms. Cousineau’s evidence about the purpose of ACBs. In her opinion, they are intended to provide an insured person the assistance he or she needs to live independently. An insured is entitled to receive the same value of benefits whether or not they have family members or friends who would be willing or able to assist them without compensation. In Ms. Cousineau’s view, the SABS scheme is designed so that victims of motor vehicle accidents such as Mr. Roy should not have to depend on the volunteer efforts of family caregivers.

[269] I agree. The underlying philosophy of the SABS is to provide victims of motor vehicle accidents, particularly those who are catastrophically impaired, with a reasonable measure of independence and dignity. An insured’s entitlement is not subject to a means test to gauge whether they would have the help they reasonably need even if they did not receive a benefit.

[270] As a result of Mr. Roy’s injuries in the accident, Mrs. Brunet-Roy has taken on most if not all routine household tasks since April 2004. This is one of the reasons why she stopped working in 2008. Her willingness to help her spouse without payment, however, does not mean that Mr. Roy is not entitled to ACBs.

[271] In light of my findings with respect to the relative weight to be given to the retrospective assessments made by Ms. Cousineau and the assessments by the Sibley OTs, Mr. Roy’s receipt of ACBs from TD for some periods does not foreclose him from proving that additional benefits during these same periods were reasonable and necessary.

[272] TD argued that I should draw an adverse inference against Mr. Roy based on his failure to call witnesses, other than Mrs. Brunet-Roy, who interacted with him in the period between April 2004 and December 2010 and who therefore had first hand knowledge of his functional abilities at the time.

[273] The plaintiff did in fact call other witnesses – the Sibley OTs – who, in 2004-05, had the opportunity to gain insight and knowledge about Mr. Roy’s functioning that Mrs. Brunet-Roy might not have had. On the whole, their evidence assisted the plaintiff, because it confirmed that he had cognitive and psychological issues, even though the functional impact of these issues were not formally assessed in the first two years after his motorcycle accident. The shortcomings in the assessments conducted by the Sibley OTs, and these witnesses’ lack of independent memory of their interactions with Mr. Roy, in no way undermines Mrs. Brunet-Roy’s evidence.

[274] The plaintiff was not required to call further witnesses to corroborate Mrs. Brunet-Roy’s account of Mr. Roy’s practical ability to function from 2004 to 2010. She was in fact the person best placed to testify about her husband’s day-to-day activities. No other potential witness has been identified who might have insight or knowledge that Mrs. Brunet-Roy could not provide. Furthermore, her account fundamentally credible.

[275] TD also argued that there was no contemporaneous medical evidence supporting Mr. Roy’s claim for ACBs between 2005 and 2010. I have already explained why I do not place great weight on Dr. Bender’s characterizations of Mr. Roy’s functioning during this period. TD’s argument moreover overlooks what is assessed when determining an entitlement to ACBs. These benefits are designed to assist with functional limitations to an insured’s ability to carry out activities of daily living. That is why Form 1s are completed not by physicians but by occupational therapists, based on interviews and home visits.

[276] There is no evidence that Mr. Roy’s cognitive, psychological and mood problems improved from April 2004 to December 2010 such that they no longer significantly interfered in his daily life. TD could have obtained a formal assessment of how he was functioning at home during this period, but did not do so.

[277] In Van Galder, the Court of Appeal held that, if an insurer failed to obtain an assessment, it could not later argue that it was prejudiced due to a delay in determining the insured’s entitlements. As the Court stated at para. 104, an insurer has options to manage its risk. Various mechanisms in the SABS give it the means to obtain information about an insured’s condition. If it chooses not to use these tools, it must live with the consequences of that decision. This is all the more so where, as here, an insurer has not taken steps – such a DAC assessment – that it was required to take.

ACBs for specific periods

[278] I turn now to whether Mr. Roy has proved an entitlement to ACBs Ms. Cousineau has retrospectively calculated for each of eight discrete periods during the six and a half years that preceded his application for a CAT determination.

Period 1: April 24 to May 12, 2004

[279] Mr. Roy was in the hospital for eighteen days after the accident. His attendant care needs were not assessed by TD at the time and he received no ACBs for the period he was hospitalized. TD contends that no ACBs are payable during this period, because hospital personnel provided any and all attendant care services that Mr. Roy reasonably required.

[280] In the Form 1 completed by Ms. Cousineau for this period, she indicated that Mr. Roy required level 2 attendant care for 12 hours a day, 7 days a week while he was in hospital. Level 2 attendant care is for basic supervisory functions relating to hygiene, basic supervisory care or co-ordination of attendant care. Ms. Cousineau determined that, while hospitalized, Mr. Roy required services in the category of “Hygiene” and subcategory of “Bedroom”. The purpose of these attendant services was to ensure “comfort, safety and security in this environment”.

[281] I note that TD currently pays for 30 minutes of attendant care services per day for Mr. Roy for this same subcategory of basic supervisory care. Ms. Cousineau testified that this type of attendant care is currently reasonable and necessary due to Mr. Roy’s anxiety about misplacing items and being unable to manage, and to manage his volatile mood swings and communication issues. Ms. Hardy and Ms. Harvey likewise indicated, in the Form 1s that they completed in 2004, that Mr. Roy needed 30 minutes of this category of attendant care each day for “comfort, safety and security”.

[282] I find that, while Mr. Roy was hospitalized in the weeks after his accident, basic supervisory attendant care was reasonably required for 12 hours every day. Such care would not be required for every person while in hospital, but they were in Mr. Roy’s particular case.

[283] Mr. Roy was transported by ambulance from the scene of his motorcycle accident to the Hawkesbury General Hospital. His injuries proved too extensive and severe for treatment in a regional facility and he was transferred the Ottawa Civic Hospital. During his hospitalization in Ottawa, Mr. Roy had surgery for his fractured neck and right knee. The injuries to his wrists and left ankle were treated non-surgically. Mr. Roy could not transfer from his bed to a chair or walk independently because he could not bear any weight on his feet and could not grasp with his hands.

[284] Mrs. Brunet-Roy testified that Mr. Roy did not understand much of what was going on while he was hospitalized. Most of the personnel in Ottawa were anglophones and Mr. Roy speaks and understands little English. Mrs. Brunet-Roy attempted, with little success, to obtain services for Mr. Roy in French. Mrs. Brunet-Roy testified that Mr. Roy was totally overcome by what had happened to him and his growing realization of how his injuries might affect his life permanently.

[285] Mrs. Brunet-Roy was on leave from work for the first week after the accident but then had to return to her job. She would travel for about an hour to Ottawa every evening to see Mr. Roy. She had to return home in the evenings to care for the couple’s younger daughter. Their older daughter spent time in the hospital every day after she finished her exams.

[286] Mrs. Brunet-Roy tried to ensure that someone was always at her husband’s bedside while he was in the hospital. When asked why he needed this support, she testified that Mr. Roy was crying all the time. He hallucinated and tried to slap at things that were not there, even though he was not supposed to move. She thought that the hallucinations were a side-effect of morphine, because they stopped once he was discharged from the hospital.

[287] Mrs. Brunet-Roy was emotional while testifying about the immediate aftermath of Mr. Roy’s accident. This was clearly a very difficult period for her, but her account of it was coherent and plausible.

[288] I accept that Mr. Roy required attendant care during his waking hours in hospital. Not every person in hospital reasonably needs this level of assistance. In April and May 2004, however, Mr. Roy was totally helpless. He could not get out of his bed, he was in excruciating pain and he was hallucinating. When he was lucid, he was unable to communicate his needs to hospital personnel or understand what was happening due to the language barrier. He could not be left by himself for any length of time in these circumstances. An attendant at Mr. Roy’s bedside was reasonable and necessary to ensure his comfort, safety and security in the hospital environment.

[289] I accordingly conclude that Mr. Roy was entitled to an ACB that covers the level 2 attendant care assessed by Ms. Cousineau. This amounts to an ACB of $2528.40 per month, pro-rated to the number of days that Mr. Roy was hospitalized.

Periods 2 and 3: May 13 to June 17, 2004 and June 18 to July 26, 2004

[290] For periods 2 and 3, Louise Hardy calculated that Mr. Roy should receive an ACB of $1163 per month and $830.16 per month respectively. The amount decreased because, based on Ms. Hardy’s assessment in mid-June 2004, Mr. Roy required less assistance with preparing and eating meals and he was more independent for some healthcare and hygiene activities. For the period from July 16 to August 2, 2004, Ms. Hardy apparently determined that the monthly benefit should be reduced further to $799.35, again on the basis that Mr. Roy’s overall functioning had improved. [12]

[291] Ms. Cousineau assessed an ACB of $6000 per month during these two periods. [13] She disagreed with Ms. Hardy’s reduction of services in connection with meal preparation. Ms. Cousineau also determined that, during these two periods, Mr. Roy required four and a half hours of attendant services each day to ensure his comfort, safety and security, and almost fourteen hours of other basic supervisory care. Form 1 states that this kind of care is reasonably necessary if an insured “lacks an ability to independently get in or out of a wheelchair or to be self-sufficient in an emergency”.

[292] I find that Ms. Cousineau’s assessments for Periods 2 and 3 accurately reflect Mr. Roy’s needs at the time and that the services she recommends for those periods were reasonable and necessary.

[293] Throughout these two periods, Mr. Roy had very limited mobility. He was discharged from hospital in a wheelchair. He spent most of his time during this period sleeping and sitting with his feet up. His feet remained in air casts until August 2004. He eventually began to use crutches to move around, but he could not travel any distance because, as noted in Dr. Bender’s January 2006 report, the casts prevented him from putting any weight on his feet at the same time that he was recovering from wrist sprains.

[294] Mrs. Brunet-Roy testified at length about the care she provided to her husband in the months after his hospital discharge. She rose early every morning to take care of things before she left for work. She emptied the urinal, helped Mr. Roy to get dressed, and helped him transfer to a wheelchair. Mr. Roy would not access the bathroom sink, so Mrs. Brunet-Roy helped him wash, shave and brush his teeth in the kitchen sink. She testified that he was usually exhausted just from the effort of transferring from the bed to the wheelchair and generally very discouraged. She would try to reassure him that everything would be okay.

[295] After his morning ablutions, Mrs. Brunet-Roy would help Mr. Roy take his medications and get him breakfast. After breakfast he might go to the bathroom, or go back to bed, or get installed in the recliner in the living room. Mrs. Brunet-Roy would then leave for work, having prepared a lunch the night before or that morning that she would leave for him. Her parents or family friends came over to serve the midday meal to Mr. Roy because he could not get it on his own. On days that she could not arrange for help for her husband around noon, Mrs. Brunet-Roy had to come home from work at lunch.

[296] On her return home from work, Mrs. Brunet-Roy would give Mr. Roy a bath in his chair. She would then get dinner ready, eat with Mr. Roy and clean up. She would also give him further medication. She testified that there were a lot of little tasks she needed to do to assist him.

[297] Before going to bed, Mrs. Brunet-Roy would have to deal with phone calls to ensure coverage for the next day, do laundry, change beds if necessary, do paperwork, clean up any accidents and make sure there was food on hand for the next day. She had to reassure her husband that he would not be alone, that there would be someone to help him. She was also trying to minimize how much work she had to do, so that everything seemed normal to Mr. Roy.

[298] In Ms. Hardy’s May 2014 assessment of Mr. Roy’s attendant care needs, she identified that Mr. Roy required level one attendant care for 90 minutes each day, to prepare and serve his food. In her view, he also needed an hour’s worth of assistance each week for personal grooming tasks such as shampooing and combing his hair, and level two attendant care for about three hours each week to do extra laundry and cleaning. Ms. Hardy allocated five minutes of time each day for ensuring comfort, safety and security in the environment. Finally, she allocated seven hours of level three attendant care per week, for help with bathing, taking medication, wound care and maintenance of his assistive devices.

[299] In total, Ms. Hardy considered that Mr. Roy required just over 22 hours a week during the first month after his hospital discharge and about 17 hours during the second month.

[300] By contrast, according to Ms. Cousineau’s retrospective assessments for periods 2 and 3, Mr. Roy reasonably required far more assistance. She determined that he needed a total of 16 hours a week of level one care, over 130 hours per week in level two care, and 17 to 20 hours a week in level three care. Ms. Cousineau’s assessment took into account, in particular, Mr. Roy’s lack of ability to independently get in and out of a wheelchair or to be self-sufficient during an emergency, and his need for emotional support and comfort.

[301] Form 1 specifically allocates attendant care services where a person is unable to get in and out of a wheelchair independently or be self-sufficient in an emergency. I accept Mrs. Brunet-Roy’s description of Mr. Roy’s abilities in May, June and July 2004. Based on this evidence, the ACBs approved by TD at the time were grossly inadequate. Mr. Roy could not get up to go to the bathroom or get food for himself. He could not get out of the house in an emergency.

[302] In assessing Mr. Roy’s functional abilities in May 2004, Ms. Hardy relied on a hospital discharge note saying that he was independent for horizontal transfers. She agrees that transfers may be much more difficult in a home setting, but she never asked Mr. Roy to complete a transfer in front of her. She thought that she must have observed one, since her report noted that he broke into a sweat. She testified that, if she had known that he had balance issues or always broke into a sweat when he attempted to transfer independently, she would have wanted to investigate further. If she had known that Mr. Roy was unable to transfer on his own, she would have been concerned that he might need 24-hour supervision.

[303] Ms. Hardy acknowledged at trial that it was unsafe to leave Mr. Roy in the house alone if he could not leave independently in an emergency. I conclude that he could not do so up to the end of July 2004. Up to fourteen hours a day of basic supervisory care was therefore reasonable and necessary during periods 2 and 3.

[304] I find that Mr. Roy also required attendant services during these periods to provide comfort, safety and security in his home environment for a few hours every day, while his wife was at work. His fragile emotional state and his psychological and cognitive difficulties were such that he could not cope on his own for any extended period of time. I find that 4.5 hours of attendant care services in this category were reasonable and necessary from mid-May to late July 2004.

[305] TD argued that, even if Ms. Cousineau’s Form 1s were accepted, her calculation of ACBs for Period 2 must be revised downwards slightly. She included an allowance of 45 minutes of level 3 services, 3.5 times per week, for the care of Mr. Roy’s surgical wounds. The value of these services, using the formula on Form 1, was $190.31. TD contends that these services were provided by a public health nurse at no cost to Mr. Roy.

[306] I reject this submission because I am not convinced that Ms. Cousineau’s allocation of services for this care was unjustified, and the impact of the reduction in services argued by TD on the total ACB payable is so trivial as to be inconsequential.

[307] In the Form 1 completed by Ms. Hardy for Period 2, she made exactly the same allocation for attendant services for the care of Mr. Roy’s surgical wound. In completing these forms, occupational therapists apparently do not account for the possibility that services may be provided by public health authorities. Ms. Hardy’s assessment that these services were reasonably necessary was accepted by TD at the time, and a benefit was paid to Mr. Roy based on it.

[308] Furthermore, if the allocation for these services is deducted from the ACB calculation by Ms. Cousineau for Period 2, Mr. Roy’s claim against TD would be reduced by a grand total of $14.59, from $6000 to $5985.41. [14] This is in the context of total claim of over $2.2 million.

[309] I am not prepared to make so trivial an adjustment, particularly when TD accepted that it should pay this amount at the time, based on an assessment by the OT that it retained. De minimis non curat lex.

[310] As already noted, the Form 1 completed by Ms. Harvey in mid-July 2004 is missing. The ACB based on her assessment was $799.35.

[311] In her July 2004 OT intervention report, Ms. Harvey adopted Ms. Hardy’s earlier assessment that did not indicate a need for supervisory care or significant services to ensure comfort, safety and security. She reduced the hours allocated for level one care because Mr. Roy told her that he was able to wash his hair independently.

[312] This reduction, and the July 2004 report in general, illustrates how Ms. Harvey relied on Mr. Roy’s self-reporting even when it contradicted her own observations. In the report, Ms. Harvey noted that, for safety reasons, Mr. Roy required assistance and supervision while bathing: he could not reach the taps, was non-weight bearing and continued to wear bilateral air casts. This observation clearly contradicted Mr. Roy’s self-report to Ms. Harvey that he was able to manage hair-washing without assistance. Ms. Harvey nonetheless accepted Mr. Roy’s self-report and his more general assertion that he was independent in most of his self-care activities.

[313] I find that Mr. Roy is entitled the maximum allowable benefit of $6000 per month for Periods 2 and 3. The ACBs previously paid by TD for these periods shall be deducted from the amount of Mr. Roy’s overall entitlement for these periods.

Period 4: July 27, 2004 to April 6, 2005

[314] During Period 4, Mr. Roy continued to be home alone while his wife worked. He began to weight-bear. He progressed from a wheelchair, to a walker, to crutches, and to a cane. He reported increased pain levels, which was not surprising as he began to move around more. He began psychological treatment with Dr. Marie-Josée Roy, to address anxiety, aggressivity and depression. He was prescribed medication for depression, anxiety, irritability, difficult sleeping and aggressivity. Mr. Roy began driving short distances but was limited due to fatigue and pain.

[315] TD paid ACBs to Mr. Roy from July 27, 2004 to January 31st, 2005, based on Form 1s submitted by Ms. Harvey, and from January 31st to April 6, 2005, based on Form 1s submitted by Mr. Costello, as follows:

Dates	OT	ACB payable
July 27 to August 2, 2004	Harvey	$799.35
August 3 to Sept. 6, 2004	Harvey	$781.13
Sept. 7 to Oct. 13, 2004	Harvey	$491.28
Oct. 14 to Nov. 17, 2004	Harvey	$435.98
Nov. 18, 2004 to Jan. 30, 2005	Harvey	$228.65
Jan. 31 to March 13, 2005	Costello	$188.55
March 14 to April 6, 2005	Costello	$135.84

[316] The steady reduction in the ACBs reflects the assessment by the Sibley OTs that Mr. Roy was gradually becoming independent for activities of daily living. In her September 2004 intervention report, for instance, Ms. Harvey noted that Mr. Roy had started to use crutches to walk short distances, although he still needed a wheelchair for longer distances. He was also able to transfer independently. Ms. Harvey recorded further improvements in Mr. Roy’s functioning in October and November 2004. When Mr. Costello submitted his first Form 1 for Mr. Roy in January 2005, he indicated that attendant care services were required for only two activities: assistance with meal preparation for twice a week for 90 minutes at a time, and cleaning the bathtub, sink and toilet once a day for 15 minutes. [15]

[317] For Period 4, Ms. Cousineau calculated an ACB of $1251.50 per month. Her assessment included assistance each week to clean and maintain bed and bath equipment, and for tasks such as dressing, drying off after a bath and taking medication. Her assessment further provided for:

• 90 minutes of help for meal preparation each day, as opposed to twice a week, as recommended by Ms. Harvey;
• 30 minutes daily to ensure Mr. Roy’s comfort, safety and security; and
• 60 minutes of skilled supervisory care each day for “violent behaviour that may result in physical harm to themselves or others”.

[318] In her January 2015 retrospective assessment, Ms. Cousineau explained why Mr. Roy needed daily skilled supervisory care:

Mr. Roy was presenting with anxiety and aggressivity and cognitive impairments affecting accurate information processing. [Mrs. Brunet-Roy] monitored Mr. Roy’s emotions, pain level and fatigue levels and assisted Mr. Roy to manage his stress, fatigue, pain levels by carefully planning and rearranging his daily activities and managing difficult interpersonal relationships and misunderstandings.

[319] At trial, Ms. Cousineau elaborated further on why Mr. Roy needed this skilled supervisory care for an hour each day. She testified that it was required to make sure he did not overdo things, to promote better pain management, to promote good communication and social engagement, and to assist with recall, to promote mood regulation. She said that more skilled supervision would be needed when Mr. Roy was outside his comfort zone, such as when he was travelling or interacting with a health professional.

[320] I find that the services set out in the Form 1 completed by Ms. Cousineau for Period 4 were reasonable and necessary. I accept her explanation for the services allocated, including her view that Mr. Roy reasonably needed attendant care to avoid aggressive behaviour that might result in harm to himself or others. Mr. Roy’s bouts of aggression were noted repeatedly in various reports; these bouts were why Ms. Hardy had to be replaced by Ms. Harvey, and why TD terminated case management services in October 2004.

[321] At trial, Mrs. Brunet-Roy described Mr. Roy’s mood in 2004. He was frequently angry, especially if there were strangers in the house. He wanted to be alone, or at least with people he knew. She recalled that, at one point, a worker tried to wash Mr. Roy and he got very upset. He did not want anyone other than his wife to touch him. He did not want anyone other than family members to prepare food for him. All of this is consistent with Mr. Roy’s own recollection of this period.

[322] Mr. Roy even had trouble dealing with members of his own family. He forgot events and conversations a few minutes after they happened. He over-reacted to all kinds of trivial things and spoke harshly. He felt depressed, anxious, and abandoned by everyone.

[323] In cross-examination, Ms. Cousineau acknowledged that she was not personally aware of any incidents where Mr. Roy’s aggression crossed the line to physical violence. This does not mean, in my view, that the skilled supervisory care at issue was not reasonably necessary. Without adequate attendant care, Mr. Roy’s mood swings and irritability could give rise to physical harm to himself or someone else. As already mentioned, his aggression did in fact manifest in real threat of violent behaviour on at least two occasions.

[324] Ms. Szydlik testified that this kind of skilled supervisory care is appropriate only in “very rare” cases. In her experience, it would be justified only if an insured was suicidal or physically aggressive, in which case there would be psychiatric reports to this effect. She said that she has seen this type of care recommended perhaps once, where the claimant was institutionalized. More generally, TD argued that skilled supervisory care is not justified for the purpose of “cueing” an impaired person, that is, prompting them to do or say appropriate things.

[325] Ms. Szydlik’s evidence on this issue is baffling since TD has authorized ACBs for Mr. Roy since December 2010 based, in part, on an allocation of one hour a day for skilled supervision required as a result of Mr. Roy’s potentially violent behaviour. I therefore reject Ms. Szydlik’s assertion about the circumstances in which this kind of care.

[326] I am furthermore unable to conclude that skilled supervisory care for Mr. Roy’s mood issues were unnecessary in 2004 and 2005 unless I find that Mr. Roy had less need for it then than he does now. Based on the evidence at trial, such a finding would be absurd.

[327] During Period 4, Mr. Roy was struggling to adjust to life with significant and permanent injuries to his legs. Mrs. Brunet-Roy was still working full-time and Mr. Roy was left with other caregivers, despite his bouts of aggression and hostility to outsiders. Their house had not been fully adapted to accommodate his restricted mobility. He was dealing with chronic pain, migraines, nightmares and flashbacks to the April 2004 accident.

[328] Mr. Roy begin to get psychological treatment and medication for major depression and other diagnosed psychological problems only in late 2004. His cognitive issues were not addressed in any way until 2012 or 2013. Ms. Cousineau testified that, if anything, these issues would have been more significant in the two years right after the accident.

[329] There is, in short, nothing indicating that, from July 2004 to April 2005, Mr. Roy was better able to complete daily activities of living independently or had less need for supervision for anger management and cognitive issues, than in early 2011, 2012, 2013 and 2015. If anything, his functioning in Period 4 was worse than it was in later years. As Mrs. Brunet-Roy observed, when asked to compare domestic routines now with those in the early post-accident years, “C’est pas mal la même chose”. [16]

[330] TD relied on Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, 95 OR (3d) 785. I find that this case is not of any assistance to TD on this issue.

[331] In Heath, the Court of Appeal overturned a trial judge’s decision granting an additional ACB to a plaintiff who suffered from chronic pain. The Court reproduced a lengthy extract of the judge’s reasons at para. 50, which included the following passage:

In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

[332] The Court of Appeal does not endorse this passage; in fact, it concludes that the trial judge’s entire approach was flawed.

[333] In any event, Mr. Roy’s chronic pain condition is only one of a multitude of factors that prevents him from engaging in many activities of daily living. It is certainly not the primary factor limiting Mr. Roy’s ability to function, as was the case for the plaintiff in Heath.

[334] I conclude that Mr. Roy was entitled to an ACB of $1251.50 per month for Period 4.

Period 5: April 7 to May 9, 2005

[335] TD approved an ACB of $530.50 monthly for the period of April 7 to May 1st, 2005, and $135.84 from May 2 to May 9, 2005. Mr. Roy seeks an ACB of $1327.58 per month between April 7 and May 9, 2005, minus the amounts he received from TD at the time.

[336] On April 6, 2005, Mr. Roy underwent surgery to remove two screws from his left ankle, leaving two others in place, and to remove a metal plate from his right ankle. He had limited mobility in the weeks after this surgery and took anti-inflammatory and codeine medications for seven months post-surgically.

[337] The ACBs paid by TD during Period 5 were based on assessments and Form 1s completed by Chris Costello at the time. He disavowed the copies of these documents tendered as evidence by TD. I accept that TD paid the amounts indicated in the Form 1s bearing Mr. Costello’s name. I am, however, unable to place any weight on the opinions expressed or findings purportedly documented by Mr. Costello in those forms.

[338] In the April/May 2005 post-surgical period, Ms. Cousineau assessed that Mr. Roy required the same services he required during other periods for some activities of daily living, plus additional assistance because he could not weight-bear and was otherwise recovering.

[339] The monthly ACB of $1327.58 calculated by Ms. Cousineau for Period 5 is the same amount as the ACB paid by TD to Mr. Roy, retroactively, for the 2012 post-surgical period, following his ankle fusion.

[340] There is no basis to find that Mr. Roy required less attendant care services post-surgically in 2005 than he required post-surgically in 2012. I find that Mr. Roy is entitled to an ACB of $1327.58 monthly for the Period 5, minus the benefit he already received from TD for this same period.

Period 6: May 10, 2005 to May 20, 2008

[341] Mr. Roy seeks a monthly ACB of $1251.50 for Period 6. TD paid Mr. Roy a monthly benefit in the following amounts during this period:

Dates	OT	ACB payable
May 10 to July 28, 2005	Costello	135.84
July 29 to Sept. 22, 2005	Costello	$67.92
Sept. 23, 2005 to May 20, 2008	Costello	None

[342] The ACB paid during Period 5 were apparently based on Form 1s completed at the time by Mr. Costello. Again, Mr. Costello did not admit the authenticity of the unsigned documents produced by TD. In addition, TD did not produce Form 1s, signed or unsigned, for the periods of June 23 to July 28 and July 29 to September 22, 2005.

[343] The ACB calculated by Ms. Cousineau for Period 6 is the same monthly benefit of $1251.50 that she calculated for Period 4. Having concluded that Ms. Cousineau’s assessment for Period 4 is accurate and reasonable, and in the absence of any evidence that Mr. Roy’s condition and functional abilities improved in any significant during Period 6, I find that Ms. Cousineau’s assessment of Mr. Roy’s attendant care needs for Period 6 is reasonable. Mr. Roy is therefore entitled, for Period 6, to an ACB of $1251.50 per month minus the benefits already received during this period.

Period 7: May 30 to July 1st, 2008

[344] Period 7 is another post-surgical period. On May 21, 2008, Mr. Roy had arthroscopic surgery to remove osteophytes in his ankles. The surgeon Dr. Liew estimated that Mr. Roy would need six to twelve weeks to recover.

[345] Mr. Roy claims an ACB of $1327.58 per month for Period 8. Ms. Cousineau’s opinion is that Mr. Roy did not require any attendant care services during his nine-day hospital admission (May 21-29). For the balance of Period 7, Ms. Cousineau’s assessment of Mr. Roy’s attendant care needs are the same of her assessment of his needs in early 2012 when Mr. Roy was recovering from the ankle fusion – a period for during which TD paid Mr. Roy a retroactive ACB in accordance with Ms. Cousineau’s calculation.

[346] I find that Mr. Roy reasonably required the same services after the 2008 surgery as he did after the 2012 surgery. He is accordingly entitled to the same ACB of $1327.58 per month in Period 7.

Period 8: July 2, 2008 to January 12, 2012

[347] Mr. Roy claims a monthly ACB of $1251.50 during Period 8. This is, once again, the same benefit that TD agreed to pay him for the period between March 21, 2012 and November 7, 2015. The question is whether the evidence indicates that Mr. Roy’s functional limitations, and the services he required as a result, were significantly different from 2008 to 2010 as they were in 2011 and 2012. I find, based on the evidence, that there was no change in Mr. Roy’s overall condition over this entire period, aside from some further deterioration and pain in his ankle. This would have, if anything, increased his need for attendant care.

[348] TD conceded, just prior to trial, that Mr. Roy was entitled to retroactive ACBs as of December 2010. Its refusal to pay him ACBs for services prior to this date is not based on evidence with respect to his need for attendant care services prior to this date, but rather the fact that he had not yet applied for a CAT determination.

[349] This argument is a non-starter. An insured seeking a CAT determination under clause (g) of s. 2(1.2) of the SABS will always be required to claim benefits retroactive to the date of application, because no application can be made prior to the two-year anniversary of a motor vehicle accident. If I accepted TD’s submission on this point, an insured deemed CAT under clause (g) would be foreclosed from seeking the full ACB benefits to which he or she would be eligible during the first 104 weeks post-accident, because no claim could be advanced for services incurred prior to the date of application A clause (g) catastrophically impaired victim of a motor vehicle accident would therefore be entitled to much less generous benefits than someone deemed CAT based on other criteria; the clause (g) victim could receive a maximum ACB of $3000 per month in the first two years, rather than a maximum of $6000 per month.

[350] TD’s argument is particularly weak when one considers the evidence of its conduct in its handling of Mr. Roy’s claim and the interactions of its employees with Mr. Roy. As previously found, TD repeatedly failed to comply with its obligation to obtain a DAC assessment when reducing and terminating Mr. Roy’s benefits. TD also failed to comply with its general obligation as an insurer to verify Mr. Roy’s potential entitlement to benefits. In these circumstances, there is simply no basis for a finding that Mr. Roy forfeited his right to claim ACBs retroactively.

[351] Through questions put to Ms. Cousineau in cross-examination, TD’s counsel suggested that her failure to submit a request for an assessment attendant care services for Mr. Roy prior January 2015 implied that no such services were needed. As Ms. Cousineau explained, however, there was no point in applying for benefits for which Mr. Roy was not eligible unless and until he was determined to be CAT.

[352] I accept Ms. Cousineau’s evidence with respect to Mr. Roy’s attendant care needs during Period 8. TD has in fact accepted that Mr. Roy reasonably required an ACB of $1251.50 – the benefit calculated by Ms. Cousineau – beginning in January 2011. The only basis for its refusal to pay this same benefit for the three years prior to January 2011 is its theory that Mr. Roy had no entitlement to ACBs based on CAT status until he applied for a CAT determination. I have rejected this argument. There is no good reason to deny Mr. Roy an ACB of $1251.50 as of January 2, 2008. Mr. Roy’s claim for Period 8 is accordingly well-founded.

c. Is TD required to pay interest on benefits paid retroactively for the period prior to Mr. Roy’s application for a CAT determination?

Legal principles

[353] Subsection 46(2) of the SABS provides that:

If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at a rate of 2 per cent per month compounded monthly.

[354] Based on the plain language of s. 46(2), if an insurer fails to pay a benefit within the time set out in the SABS, the benefit becomes overdue and the insurer is required to pay interest at the rate of 2 percent, compounded monthly, on the outstanding payment. The interest owing is added to the amount of the benefit and becomes part of the amount overdue.

[355] In Attavar v. Allstate Insurance Co. of Canada (2003), 63 O.R. (3d) 199 and more recently in Zacharias v. Zurich Insurance Company, 2013 ONCA 482, 116 O.R. (3) 342, at para. 38, the Court of Appeal held that the legislator’s intent in enacting s. 46(2) was to “compensate insureds for the loss of the time value of money and to encourage insurers to pay accident benefits promptly”.

[356] Subsection 46(2) is compensatory as opposed to punitive. To be entitled to interest in accordance with this provision, a claimant does not need to show that the insurer engaged in deliberate or negligent conduct in failing to pay a benefit on time. As emphasized in Zacharias at para. 58, the insured must show nothing more than “benign delay”:

[C]ompound interest does not penalize. It compensates. A penalty for conduct that goes beyond benign delay is provided for in s. 282(1) of the Insurance Act … that requires an insurer to be sanctioned in circumstances where a finding is made that the insurer has demonstrated an unreasonable lack of regard towards its obligations to pay benefits on a timely basis.

[357] In its recent decision in Van Galder, at paras. 91 and 92, the Court of Appeal reiterated that an insured does not need to prove bad faith in order to recover the interest set at s. 46(2):

The fact that the [insurer] had in good faith paid a different amount to the respondent or stopped payments in good faith is irrelevant to the compensatory nature of the regime. The application of the interest provisions of the SABS is not dependent on the good or bad faith of any party but is purely compensatory.

[358] In Van Galder, the Court held that the SABS’ scheme gives an insurer the obligation and tools to investigate potential claims and places on it the risk of a delay in payment of benefits. The defendant insurer in Van Galder could have required the plaintiff to undergo an assessment for CAT status at any point, but chose not to do so until 2012, five years after she first applied for a determination. The insurer did not require an assessment even though it knew that the plaintiff was seriously injured, and she cooperated fully with its requests for further information. At para. 101, the Court noted:

This is not a case of an uncooperative insured person with minor injuries who kept the insurer in the dark. There is no question that from the date of her accident, the respondent’s injuries were severe. Moreover, the appellant was kept apprised of the respondent’s serious and precarious physical, emotional and social circumstances … .

[359] In these circumstances, the Court in Van Galder concluded that the insurer could not argue prejudice or unfairness arising from the obligation to pay compound interest. The insurer “ran the risk that the respondent was catastrophically impaired at the time of the accident. It had many options to manage that risk. This was a business decision that [it] chose to make” [para. 104].

[360] As a result, the Court of Appeal upheld the insured’s entitlement to interest on retroactive benefits payable not only from the date that she first applied for a CAT determination, but from the date of the accident.

[361] The reasoning in Van Galder echoes the analysis in Mulhall v. Wawanesa Mutual Insurance Co., 2015 ONSC 7500. In that case, a 17-year-old named Bradley Mulhall was injured in a March 2001 motor vehicle accident. He did not however apply for a determination of CAT status or claim any ACBs until 2006, and did not claim benefits retroactive to this period until 2015. After determining that Mr. Mulhall was CAT, the defendant insurer paid him benefits as of 2006 but denied that he was entitled to any benefits, or interest payable on such benefits, from 2001 to 2006. Mr. Mulhall sued.

[362] Prior to the trial in the action, the parties sought a ruling on whether the defendant insurer would be required to pay interest based on s. 46(2) of the SABS, if the jury concluded that Mr. Mulhall was entitled to ACBs retroactive to the date of his accident. Gonsolus J. determined that interest would be payable on any retroactive benefits payable. In his comprehensive review of the caselaw on this issue, including the trial decision in Van Galder, he noted at para. 33 that:

[M]any of the cases have deemed the payment [of a benefit] to be due once the insurer has knowledge the insured may or may not be entitled to the benefit in question. In each case, the task is to determine the date when the insurer had sufficient information upon which to consider paying the disputed benefit. The unique facts of each case are determinative. The onus is on the insurer to identify the benefits to which the insured is entitled even absent an insured’s application.

[363] Gonsolus J. endorsed the statement by the trial judge in Van Galder that “it is irrelevant that the insurer paid less on a good faith basis”. He concluded at para. 37 that “interest should begin to accrue from the date that the insurer had sufficient information to be able to assess whether the benefit should have been paid regardless of whether or not the plaintiff or his parents specifically applied for attendant care benefits”.

[364] In Mulhall, the discharge summary from the plaintiff’s post-MVA hospitalization indicated that he had cognitive issues as a severe brain injury and would require constant supervision to ensure his safety. Given this and other information provided to the insurer at the time, Gonsolus J. held that the insurer should have taken active steps to ascertain whether he was entitled to an ACB. He rejected the insurer’s argument that it was unduly prejudiced because Mr. Mulhall waited five years before applying for a CAT determination. He held that Mr. Mulhall’s conduct was reasonable, given his brain injury, and that the insurer had not suffered any prejudice, because Mr. Mulhall had fully cooperated in providing all medical and other information requested.

[365] Similarly, in 18000790 v. Jevco Insurance Company, the Licence Appeal Tribunal held that interest was payable on retroactive benefits because the insurer knew, or should have know, that the insured had a potential claim, but failed to investigate it. In Jevco, a young woman, CW, applied for ACBs eight years after being struck by a car. The Licence Appeal Tribunal held that Jevco, the insurer of the car that hit her, was required to pay her the maximum monthly amount allowable for ACBs retroactive to the date CW was discharged from hospital after the accident. It found that CW’s cognitive impairments prevented her from claiming more promptly and that Jevco had focussed on defending its coverage position rather than investigating her entitlement. The Tribunal accordingly awarded CW interest on all retroactive benefits at the statutory rate.

[366] TD relies on Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585 (Div. Ct.). The plaintiff’s entitlement in that case was not governed by the 1996 SABS. In its decision, the Divisional Court held that the reasoning in Attavar did not apply precisely because the applicable legislative language is different. The approach in Grigoroff to the question of when a benefit is overdue, and hence when interest becomes payable, is therefore not relevant to Mr. Roy’s claim for interest on retroactive benefits.

Application of legal principles in this case

[367] TD argues that it should not have to pay interest on any retroactive benefits for the period before December 2010, because it could not have known that Mr. Roy might be catastrophically impaired before he applied for a CAT determination.

[368] The plaintiff objects to the substance of this argument but also argues that TD should not be allowed to raise this defence, because it waived it prior to trial.

[369] Mr. Roy relies once again on a statement made during Ms. Szydlik’s examination for discovery on January 16, 2019 by TD’s counsel of record at the time. In discussing the impact of the Van Galder decision on Mr. Roy’s interest claim, TD’s lawyer was asked for an undertaking with respect to the position that it would take at trial. This culminated in the following exchange at Q. 99:

Q: So it’s not a case that addresses this undertaking per se, but what I’m looking to do here is I’m looking to put TD on notice that if they are going to advance a claim at trial or not a claim but a defence at trial that it’s completely unfair to TD because we didn’t even know there was a retroactive claim and so how could you hit us with 2 percent interest, the fact that TD ---- A. That won’t be our argument, so I can spare us --- I can spare us that. In my view, the issue of interest turns on the issue of entitlement and turns on the definition of interest as it’s defined in the Act. It’s not going to be ---- it would be unfair to charge us with interest. I mean, it is what it is. If the court finds --- if the court finds that the amount is due and payable and that the --- you know, the definition of interest is met in terms of its interpretation of this particular proceedings, we are not going to be raising an issue of, oh, it wouldn’t be fair. That’s --- I won’t be making that argument. [Emphasis added.]

[370] I find that this was an unequivocal and unqualified waiver of the argument that TD is now advancing at trial. Following the discovery, TD never wrote to plaintiff’s counsel to correct the answer given by its counsel. In these circumstances, it would be unfair to allow the defendant to resile from its January 2019 undertaking.

[371] I find in any event that Mr. Roy has established his right to interest under s. 46(2) on all retroactive payments by TD.

[372] Like the plaintiffs in Van Galder and Mulhall, Mr. Roy co-operated with the insurer’s requests for examinations and assessments. He readily consented to the disclosure of the records of his treating physicians and health care professionals. He completed a self-assessment in June 2004. Although Mr. Roy’s accounts to the Sibley OTs were not always reliable, the lack of reliability was a manifestation of his mild brain injury, and can in no way be attributed to willful lack of co-operation on Mr. Roy’s part.

[373] The information disclosed to TD beginning in May 2004 should have set off alarm bells about Mr. Roy’s cognitive, psychological and mood issues and how they might impact his ability to master many activities of daily living independently. Mr. Roy’s self-assessment and various medical reports referred repeatedly to these problems. Dr. Roy and Dr. Bender’s reports disclosed diagnoses of major depression, PTSD, anxiety and aggression. The Sibley OTs mentioned cognitive problems and aggression issues. So did the case manager.

[374] Despite having this information, TD did not arrange for a cognitive assessment. It did not question the contradictions in the Sibley OT assessments or their failure to consider whether reported physical, cognitive and behavioural issues had an appreciable impact on Mr. Roy’s ability to master basic daily tasks, such as bathing. In the face of consistent indications that Mr. Roy might qualify for additional benefits, TD did nothing to follow up on that potential. It did not comply with its obligation, as an insurer, to act in its insured’s best interest or respect the safety net provided by mandatory DAC assessments. Instead, TD gradually reduced Mr. Roy’s ACB until it was so trivial that he did not bother to contest its termination.

[375] An October 15, 2004 entry in the adjusters’ log provides a good example of TD’s cavalier approach to the information it was receiving about Mr. Roy’s condition. The adjuster then on the file noted that Mr. Roy was aggressive with the case manager, stating that he believed that she was an “investigator” and that he did not understand why a case manager was needed. TD’s response to this insight into Mr. Roy’s confusion and mood issues was to terminate case management. This was the same note in which the adjuster deemed it unreasonable for Mr. Roy to request that TD send him information in French because some of his family members spoke some English.

[376] TD’s conduct went beyond benign neglect of Mr. Roy’s interests. As I have already found, it repeatedly breached both its obligations under the SABS and its broader duty of good faith to its insured.

[377] Given this history, even if TD could rely on a reasonability or fairness argument in response to Mr. Roy’s claim for interest under s. 46(2), that argument would fail miserably.

[378] Mr. Roy is entitled to interest under s. 46(2) on all payments that TD has made to date for retroactive ACBs and housekeeping/home maintenance benefits, as well as interest on those additional benefits that it must pay as a result of this judgment.

Conclusions

[379] For the reasons provided, Mr. Roy’s action is granted in its entirety. Although the length of this decision might suggest otherwise, the outcome was by no means a close call. On each of the central issues, the evidence and the law were squarely in the plaintiff’s favour. TD’s unfortunate decision to contest this action through trial echoes its mishandling of Mr. Roy’s file over many years.

[380] Mr. Roy and his family deserved better. At the very least, Mr. Roy deserved the minimum protections to which a victim of a motor vehicle accident in Ontario is entitled. TD’s conduct fell well short of its obligations as Mr. Roy’s motor vehicle insurer and resulted in a gross shortfall, over many years, of the benefits to which Mr. Roy was entitled.

[381] This judgment does no more than compensate Mr. Roy for the benefits he should have received a long time ago.

[382] I leave it to the parties to calculate the interest amounts payable but remain seized if they are unable to agree on the total amount that TD must pay or other terms of the order to issue.

[383] If the parties are unable to agree on costs, the plaintiff may submit a costs outline, no longer than three pages in length, as well as a draft bill of costs and any supporting materials. This submission shall be served and filed electronically with the court by no later than July 15, 2020. TD shall have until August 15, 2020 to serve and electronically file its costs outline of up to three pages in length, a draft bill of costs and supporting materials.

Justice Sally Gomery Released: June 26, 2020

Footnotes

[1] TD Insurance and the defendant Primmum Insurance Co. are now one and the same. In these reasons, I will refer to the defendant as TD, as this is how its representatives referred to it during trial.

[2] The version of the SABS in effect at the time of Mr. Roy’s accident is the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O.Reg. 403/96. I will refer to this version of the SABS as the “1996 SABS”. It has since been superseded by the Statutory Accident Benefits Schedule, O Reg 34/10, which I will refer to as the “2010 SABS". In these reasons, I will distinguish between the 1996 SABS and the 2010 SABS only where a relevant provision has changed.

[3] “We had a very full life.”

[4] Although Dr. Roy and Mr. Roy share the same last name, they are not related.

[5] I will sometimes refer to Ms. Hardy, Ms. Harvey and Mr. Costello as the “Sibley OTs”. Although they were independent contractors as opposed to Sibley employees, the reports prepared by Ms. Harvey and Mr. Costello were on Sibley letterhead. Although Ms. Hardy used her own letterhead, she was acting pursuant to Sibley’s referral.

[6] I will refer to the assessors on the team, including Dr. Platnick himself, as the “Sibley assessors”.

[7] Aviva Canada Inc v Pastore, 2011 ONSC 2164 (“Pastore”).

[8] As mentioned earlier, clause (g) is also sometimes referred to as Criterion 8.

[9] Pastore v. Aviva Canada Inc., 2012 ONCA 642, 112 O.R. (3d) 523.

[10] Emphasis added. TD subsequently amended its statement of defence but did not amend this paragraph or any of the other paragraphs mentioned in this section.

[11] TD was able to produce the original signed versions of all of Ms. Hardy’s reports and Form 1s, even though it only retained unsigned copies of assessments completed by the other two Sibley OTs.

[12] I say “apparently” because the Form 1 that Ms. Hardy completed for this period was not produced by TD.

[13] Ms. Cousineau identified reasonably necessary attendant care services that would give rise to ACBs of $6175.72 per month for period 2 and $6039.72 per month for period 3. Since the maximum benefit payable under the SABS is $6000 per month, Mr. Roy is claiming this amount.

[14] $6175.72 - $190.31 = $5985.41. Since the maximum monthly benefit is $6000, however, the reduction in the ACB payable would be under $15 ($6000 - $5985.41 = $14.59).

[15] This of course assumes that the copies of Mr. Costello’s Form 1 tendered into evidence at trial can be given any weight, even though Mr. Costello could not confirm that they were unaltered from the originals he submitted.

[16] “It’s pretty much the same thing.”