Tribunal orders Definity to pay denied attendant care benefits up to the $1,200.00 Monthly ACB fixed by settlement.
An Ontario Licence Appeal Tribunal adjudicator has ordered Definity Insurance Company to pay attendant care benefits up to the full Monthly ACB amount fixed in a settlement, rejecting the insurer's argument that the Superintendent's Guideline hourly rates capped its liability on a per-invoice basis.
The decision in Nutley v. Definity Insurance Company, 2026 CanLII 48381 (ON LAT) was released on May 21, 2026 by Adjudicator Amar Mohammed.
Craig Nutley was involved in an automobile accident on December 9, 2022. After an earlier dispute, the parties signed Minutes of Settlement on July 11, 2024 approving attendant care at $1,200 per month as the current Form 1 amount. Definity formalized the approval through a s. 42(3) notice on July 22, 2024, confirming the $1,200 maximum.
Nutley then submitted three OCF-6 invoices. Definity partially approved each one but applied the January 2018 Attendant Care Hourly Rate Guideline rates to the invoices and refused to pay anything above what those hourly rates produced. The provider had billed at $38.50 per hour, above the Guideline rates. Definity relied on Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, arguing the Guideline rates set its statutory maximum liability and that the Tribunal lacked jurisdiction to order more.
The adjudicator disagreed. He noted Malitskiy interpreted the June 2010 Guideline, which contained explicit language stating insurers were not liable for attendant care expenses exceeding the maximum hourly rates. That limiting language is absent from the January 2018 Guideline. The 2018 version instead frames the hourly rates as a tool for calculating a Monthly ACB amount on the Form-1 and directs insurers, once a s. 42(3) notice has issued, to use the resulting monthly amount to pay the benefit.
Read together with the accompanying Bulletin A-03/18, the adjudicator found the 2018 Guideline had moved away from treating the hourly rates as a strict statutory cap on insurer liability. He said section 19(2)(a) of the Schedule is a calculation provision and does not operate as a per-invoice liability cap.
Once the Monthly ACB was fixed by the Settlement Agreement and confirmed by the s. 42(3) notice, the adjudicator held, Definity was required to use that monthly amount to pay reasonable and necessary incurred ACBs. The expenses were not otherwise contested as unreasonable, unnecessary, or unincurred.
Nutley was awarded $347.96, $647.64, and $91.74 for the three OCF-6 expenses, plus interest under s. 51 of the Schedule.
The adjudicator declined to grant an award under s. 10 of Reg. 664. He found that applying differing interpretations of the Guideline, even if incorrect, did not amount to conduct that was "excessive, imprudent, stubborn, inflexible, unyielding or immoderate."
Once the Monthly ACB amount is established by a s. 42 notice, the respondent was required to use that resulting monthly amount to pay for reasonable and necessary ACB expenses incurred.
