In Hansen v. Aviva General Insurance Company, Adjudicator Brian Norris found that even though the Applicant sustained a catastrophic impairment, she was not entitled to housekeeping expenses as she had failed to prove that they had been incurred or deemed incurred pursuant to sections 3(7)(e)(iii) and 3(8) of the Statutory Accident Benefits Schedule (the “Schedule”).
The Applicant was deemed catastrophically impaired by her insurer after a head-on collision left her with severe psychological injuries. Both parties agreed she needed assistance with her housekeeping activities and granted access to housekeeping benefits pursuant to s.23 of the Schedule.
At issue was the Applicant’s entitlement to housekeeping for the period pre-dating the application for a catastrophic impairment determination. The insurer paid out all of the housekeeping expenses post-determination. The Applicant had tried to get reimbursed for her son’s help for the three years prior to her application for CAT determination.
s.3(7)(e)(iii) of the Schedule provides that housekeeping expenses are not incurred unless:
- a) the insured has received the goods or services to which the expense relates
- b) the insured has paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense; and
- c) the person who provided the goods or services
- i) did so in the course of their employment, occupation, or profession in which they are ordinarily engaged in; or
- ii) sustained an economic loss as a result of providing the goods or services to the insured.
Furthermore, s.3(8) allows the Tribunal to consider an expense to be deemed incurred when an insurer has unreasonably withheld or delayed payment of a benefit in respect of the expense, leading it not to be incurred…
The onus is on the Applicant to demonstrate she is entitled to housekeeping benefits. The corollary to this onus is the onus to prove that the expenses were incurred or should be deemed incurred because the insurer had unreasonably withheld or delayed payment.
The Applicant tendered no evidence and made no submissions demonstrating that the expenses were incurred. Instead, she tried to rely on the argument that the insurer had all the necessary medical evidence to find that she was catastrophically impaired earlier than it did, and had delayed payment.
The insurer submitted that the Applicant had not demonstrated the benefits were unreasonably withheld or delayed. Adjudicator Norris agreed. Norris noted that Aviva became aware of the Applicant’s CAT application when it was first received, and there was no evidence that Aviva was aware that the Applicant could have been catastrophically impaired prior to such evidence being provided to it. Furthermore, the insurer was entitled to seek additional information through requesting a declaration from the Applicant’s son, through requesting insurer examinations and making s.33 requests. All such actions were reasonable. None of these actions rendered that payment unreasonably withheld. More importantly, none of that was a proper reason for the housekeeping expense to not to be incurred as none of those actions overlapped with the period in dispute (i.e., the period her son helped her with).
The takeaway is that when an Applicant claims entitlement to housekeeping expenses they have to prove they were incurred. If they want to avail themselves of the Tribunal’s discretion to consider such expenses deemed incurred, they will need to prove that the insurer unreasonably withheld or delayed payment. Any such evidence that an Applicant puts forth in respect of the latter will need to actually be material to an Applicant’s ability to incur or not incur the housekeeping expenses
Branson Wong is an associate and the author of this blog. If you have questions about this decision or a similar file please contact Branson at [email protected] or 416-777-7387.