Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369 (CanLII)
This was an appeal to the Divisional Court from the Licence Appeal Tribunal (LAT) and reconsideration decision of Vice-Chair Farlam. Several grounds of appeal were raised but the court found it unnecessary to address all grounds. Instead, it focused on the substantive issue of attendant care issue and found the Vice-Chair erred in law by applying the wrong test and making conclusory statements. Ultimately, the decision was set aside and the matter was remitted back to the LAT for a fresh hearing before a different adjudicator.
By way of background, the Applicant Luluquisin was involved in a motor vehicle collision on March 17, 2017. He was deemed catastrophically impaired by his insurer, Aviva in February 2020. One of the major issues denied by Aviva was attendant care. In August 2021, Intact assumed priority.
Section 19(1)(a) of the Statutory Accident Benefits Schedule (SABS) provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person for services provided by an aide or attendant or by a long-term care facility.
The court noted two aspects to the test for attendant care: (1) whether the expenses are reasonable and necessary and (2) whether the expenses are incurred.
Vice-Chair Farlam found the applicant was not entitled to attendant care benefits. As part of her reasons for denial, she stated that the applicant did not establish with medical evidence that the amount of $6,000 per month from April 19, 2020 to date and ongoing was reasonable and necessary.
This conclusion was made despite Aviva initially approving attendant care benefits in a lower amount of $1029.42/month and subsequently suspending attendant care benefits in September 2021 due to failure to attend an insurer examination (IE).
Ultimately, Vice-Chair Farlam concluded that the applicant had not established that attendant care benefits were reasonable and necessary based on medical evidence; failure to attend an IE in September 2021 and one of the service providers did not provide additional requested information from Aviva.
The court found the LAT erred by providing no analysis of the lack of medical evidence. It stated at paragraph 15:
No explanation is provided – let alone any analysis – to justify drawing conclusions against the claimant because of the “failure” to attend a medical examination or for the “failure” of one of the claimant’s service providers to provide additional information to Aviva. No description is provided – let alone analysis – of the evidence provided by Mr. Luluquisin in support of the claim for attendant care benefits.
In finding the LAT erred, the court stated that an adverse inference was drawn against the applicant to preclude all aspects of his attendant care benefits such that the LAT did not feel it necessary to apply the “reasonable and necessary” legal test or review the evidence to help the applicant establish his claim for attendant care benefits.
Because the attendant care benefit was so substantial (at $6,000/month), the Divisional Court found more than conclusory or summary reasons were required by the LAT. Whether benefits are “reasonable and necessary” is a separate inquiry from “incurred” services. The fact that the claimant did not attend an IE led the LAT to conclude that this was a “failure” and unreasonable which precluded his claim for attendant care benefits. The court noted at paragraph 18:
…The Vice-Chair moved from an uncontested finding that a claimant did not attend an insurer medical examination to a conclusion that this was a “failure” and was unreasonable. She then concluded that the unreasonable failure precludes a substantial claim. All that was without reference to the statutory scheme, without justification of the factual finding of unreasonableness, and without justification of the draconian consequence of these findings. As such, the Vice-Chair conflated the test under s. 19 with apparent procedural non-compliance with the SABS. For a catastrophically impaired claimant, more would be required to justify the LAT’s decision.
Despite other grounds of appeal, the court found other issues in dispute were decided summarily and the entire decision was set aside and remitted back for a fresh hearing.