Brief Summary
In this decision, the Licence Appeal Tribunal (LAT) confirms that, in accordance with the Financial Services Commission of Ontario (FSCO) Superintendent’s Guideline No. 01/18 and Bulletin A-03/18, the hourly rates set out in the Form 1 are only meant to be used for the purposes of calculating monthly entitlement, and the maximum hourly rates are not to strictly apply as the maximum payable for attendant care services.
Note that this case is separate and distinct from SK v. Aviva Insurance Canada (2019 CanLII 95549) and reconsideration decision (2019 CanLII 94065). The two cases can be confused because they both deal with whether the insurer’s exposure for the attendant care benefit is limited to the hourly rate set out in the Form 1 and are decided around the same time, but they are completely separate cases stemming from completely separate collisions. The collision giving rise to this 2020 decision occurred post-April 2018, so after the FSCO Superintendent’s Guideline No. 01/18 was released.
Detailed Summary
On May 27, 2018, the applicant was involved in a motor vehicle collision and submitted an application to the LAT for, among other things, a determination of entitlement to attendant care benefits at a rate of $3,000 per month from October 1, 2018, to date and ongoing.
In this case, the insurer relied on the LAT’s decision of S.K. v Aviva Insurance Canada, 2019 CanLII 94065 (ON LAT) (a separate decision dealing with a completely different collision and set of parties) for the proposition that, even if the attendant care benefits were incurred by the applicant, the attendant care was only payable in accordance with the hourly rates set forth on the Form 1. The insurer agreed to pay for two invoices from the applicant’s PSW in accordance with the Form 1 hourly rates only. Despite this, the applicant continued to receive attendant care.
The applicant argued that the insurer’s decision to pay attendant care benefits in accordance with the Form 1 hourly rates was contrary to the Guideline 01/18 and Bulletin A-03/18, which state that the maximum hourly rates are only required to calculate the monthly attendant care benefit for the purposes of the Form 1 and that the maximum hourly rates are not to be strictly applied as the maximum payable for attendant care services. The insurer had, at one point, paid attendant care at hourly rates of $25 to $26 before reducing its payments to the rates on the Form 1, and the applicant argued that in doing so, the insurer had accepted the reasonableness of said rates in excess of the Guideline.
Arbitrator Grieves found that S.K. v. Aviva Insurance Canada, 2019 CanLII 94065 (ON LAT) was distinguishable because the Superintendent’s Guideline 01/18 and Bulletin A-03/18 did not apply at the time. That case dealt with a pre-April 14, 2018 collision.
Arbitrator Grieves concluded that, in accordance with the FSCO 01/18 Guideline and Bulletin A-03/18, the Form 1 hourly rates are only meant to be used to calculate entitlement. For accidents after April 14, 2018, the maximum hourly rates should be used to calculate the monthly benefit and should not be applied as an hourly rate maximum payable for attendant care services.
The insurer argued that some of the PSW invoices were deficient in that they had not been completed contemporaneously, some were missing log dates and there were billing errors by the service provider. While adjudicator Grieves agreed, she was satisfied that the attendant care benefits had been incurred, stating: “While I agree there are certainly issues with the log sheets and invoices from providers, it would be unfair to deprive the insured in the context of the accident benefits scheme of all attendant care, when both parties agree that the applicant requires 24-hour attendant care, and even the surveillance reveals the applicant was receiving significant attendant care services.”
Arbitrator Grieves accepted that $25-$26 per hour was a reasonable rate for PSW services. After calculating the amounts payable per month based on the invoices, the total exceeded the statutory minimum of $3,000 per month. The applicant was therefore entitled to $3,000 per month, less any amounts paid, with interest in accordance with the Schedule.
