Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.

Co-operators Insurance Company v. Bennett (2024 ONSC 467)

The insurer appealed the Tribunal’s decision that the claimant was entitled to an attendant care assessment due to having pre-existing conditions, despite suffering only minor injuries. The insurer argued that the minor injury bar still applied to attendant care benefits and assessments for persons with pre-existing conditions who were not subject to the $3,500 MIG limit. The Court dismissed the appeal, holding that the Tribunal correctly determined that a person with pre-existing conditions could receive attendant care benefits and an assessment. The insurer’s argument was held to be too focused on single words and phrases in the SABS, rather than focusing on the entire structure of the SABS.

Vaillancourt v. The Guarantee Company of North America (21-008125)

The claimant was previously deemed catastrophically impaired. He applied to the LAT to resolve a dispute concerning the quantum of certain benefits, including attendant care and home modifications. Prior to the accident, the claimant managed his own consulting company, was quite active, and regularly enjoyed doing housework. The insurer denied much of the claimant’s attendant care claim on the basis that the surveillance it collected and the assessments it conducted revealed that the claimant could perform such tasks without supervision and that his post-accident impairments were overstated. Adjudicator Lundy disagreed, preferring the claimant’s framework which focused on the claimant’s functional ability to perform predictably, consistently and reliably. Adjudicator Lundy emphasized that the insurer failed to account for these principles by concluding that the snippets of surveillance it collected showing the claimant performing housework and manual labour indicated that his condition was overstated, when, in reality, the surveillance and assessments undertaken by the insurer failed to account for the fact that the claimant struggled to perform these tasks and that his condition differed on a day-to-day basis. As a result, Adjudicator Lundy found that the claimant was entitled to attendant care benefits in the amount of $6,000.00 per month. The insurer denied the claimant’s proposed home modifications on the basis that his medical/rehabilitation funds were nearly exhausted. Despite eventually designating the claimant CAT, the insurer stood firm in its denial of the proposed home modifications. Adjudicator Lundy found that the claimant fulfilled his evidentiary burden of demonstrating that the home modification assessment and all but two of the proposed home modifications (valued at $87,809.00) fit the criteria of being necessary and reasonable. Despite the insurer’s refusal to pay for the proposed attendant care and home modifications, Adjudicator Lundy found that the claimant was not entitled to a special award. The insurer had triable concerns regarding whether many of the claimant’s proposed plans were necessary and agreed that the claimant was eligible for attendant care and some home modifications, albeit not to the valuations sought by the claimant.

Ciyayi v. Economical Insurance Company (19-005222)

The claimant suffered from a non-catastrophic impairment and applied to the LAT for attendant care and medical benefits. The claimant sought repayment for both non-professional and professional attendant care services. To establish that expenses for non-professional attendant care were “incurred” under s. 3(7)(e) of the SABS, a claimant must prove that a non-professional service provider sustained an economic loss resulting from their provision of goods and services “while, and as a result of providing attendant care.” The claimant submitted that his brother, who he alleged quit his job in order to care for him, was a non-professional caretaker and sustained economic loss while providing care for him. The insurer argued that the claimant’s brother did not provide evidence indicating that he left his job to care for the claimant. Vice-Chair McGee found that the claimant failed to provide evidence showing that economic loss occurred, as the claimant’s brother quit his job prior to the accident and there was no evidence suggesting that he had otherwise foregone employment. In seeking repayment for professional attendant care, the claimant provided multiple invoices. Vice-Chair McGee held that it is impossible to determine whether professional attendant care services meet the definition of “incurred” under s. 19(3) of the SABS where a claimant fails to provide particulars regarding the nature of the professional services provided and/or the identification and occupations of the chosen service providers. Given that the claimant abstained from providing such evidence, Vice-Chair McGee rejected his claim for professional attendant care benefits. Vice-Chair McGee also concluded that the claimant failed to establish entitlement to medical benefits.

Hassan v. Aviva Insurance Company of Canada (21-000811)

The claimant disputed entitlement to NEBs, ACBs, and a special award. As a preliminary motion, the insurer sought to exclude the claimant’s CAT reports because they were not disclosed in accordance with the LAT order timelines. Adjudicator Prowse excluded the CAT reports because the documents were not exchanged in accordance with the order, and because CAT was not an issue in dispute at the hearing. As to the disputed benefits, Adjudicator Prowse held that the claimant did not meet the burden of proving entitlement.

Khan v. Aviva Insurance Company of Canada (21-003298)

The claimant disputed entitlement to a catastrophic impairment designation, attendant care benefits of $6,000 per month, and various medical benefits. The insurer argued that the claimant’s impairments were a result of subsequent injuries and events in his life. Adjudicator Lester concluded that the accident was not the “but for” cause of the claimant’s impairments, and he did not suffer a catastrophic impairment. The subsequent accident and life stressors still would have occurred and led the psychological diagnosis preventing him from engaging in life activities. For the same reasons, the claims for ACBs and medical benefits were dismissed.

Stewart v Travelers Canada (21-008891)

This is a preliminary issues decision addressing whether the claimant was barred from applying to the LAT for attendant care benefits under s. 55(3) of the SABS for failure to comply with s. 46.2(1) of the SABS (i.e., the duty of a provider to provide information). The insurer argued that there was non-compliance with s. 46.2(1) as the attendant care provider had failed to provide documents specifically outlined in a case conference order, including a CV, tax returns, an HST number, and a breakdown of attendant care services provided. The claimant argued that the insurer had been provided with sufficient information to determined that ACBs had been incurred. Adjudicator Kaur agreed with the claimant, finding there was sufficient information to determine ACBs had been incurred and that the insurer had received a breakdown of the types of services provided and the duration for each service. The claimant was not barred from proceeding to a LAT hearing.

Simpson v. Nordic Insurance Company of Canada (21-000662)

The claimant applied to the LAT seeking entitlement to attendant care benefits, rehabilitation benefits, and a special award. The claim for ACBs was made for two distinct periods. The LAT found the claimant was not entitled to ACBs for the first period claimed as the benefits had not been incurred. The LAT did not accept that the claimant did not receive proper notice that ACBs had been approved and declined to deem the expenses to have been incurred. The approval had been sent to the claimant by letter, which was also faxed to the claimant’s counsel. The claimant was entitled to the disputed rehabilitation benefits and ACBs for the second period claimed. A special award was granted. The LAT found the insurer gave unreasonable weight to s. 44 opinions (compared to other medicolegal reports and the records of treating practitioners) when denying ACBs and life skills training. The LAT found the insurer’s decision was unreasonable and lacked transparency.

Balachandran v. Economical Insurance (21-014940)

The claimant applied to the LAT in order to dispute the hourly rates for ACBs being prescribed by his insurer. Adjudicator Kaur found that the LAT did not have jurisdiction to rule on the matter because there was no dispute regarding the claimant’s eligibility to a benefit under the SABS. The amount being claimed in his Form 1 for ACBs was approved by the insurer. The insurer requested that the claimant submit an expense claim so that he could be compensated for his out-of-pocket expenses for ACBs. The claimant argued that the LAT possessed jurisdiction as the insurer had reportedly disputed the hourly rate at which ACBs were to be paid. Adjudicator Kaur ruled that the LAT did not have jurisdiction to hear the application because neither the claimant’s entitlement to ACBs, nor the amount of the ACB being approved was in dispute. The claimant’s application was dismissed.

Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (2022 ONSC 6346)

The claimant appealed the Tribunal’s decision regarding the quantum of ACBs awarded, and the date interest began to accrue. The claimant also sought judicial review of a FSCO decision relating to housekeeping expenses. The Court dismissed the appeal, holding that the Tribunal did not commit any legal errors in its award of ACBs. The Court agreed that basic supervisory care was generally not payable for the cost of emotional support. The Court also accepted that the Tribunal’s denial of attendant care benefits for cleaning tasks that overlapped with housekeeping chores was appropriate. The Court agreed with the Tribunal’s holding that interest on ACBs only began from the date upon with the Form 1 was submitted to the insurer, as the SABS did not require payment of ACBs prior to submission of the Form 1. The Court also dismissed the judicial review of the FSCO decision, holding that FSCO correctly found itself functus officio in relation to a claim for housekeeping expenses after a consent order was made dismissing the claim, following a settlement between the claimant and the insurer.