The issue in this case is whether the law outlined in the Divisional Court decision of Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (CanLII) continues to apply to later dates of loss — particularly, after Bulletin No. A-03/18 was enacted. In this LAT decision, Adjudicator Norris held that Malitskiy continues to apply. In this case, the insurer agreed with the quantum of the applicant’s Form 1 but did not pay an Attendant Care benefit because there was no evidence of an incurred expense. Malitskiy involved an accident that pre-dated the Bulletin’s amendments and involved a principle for allocating funds to incurred expenses relating to ACBs where the invoices fail to include adequate detail of the services provided. The adjudicator held that the principles outlined in Malitskiy continue to apply notwithstanding the Bulletin which, on a certain reading, could have been interpreted to mean that Malitskiy no longer applies. The adjudicator found that Malitskiy is meant to provide guidance to adjusting claims with inadequate information in the invoices. Advising the claimant that the insurer will rely on Malitskiy is considered good communication on behalf of the insurer.
