LAT Reconsideration Reinforces Malitskiy

LAT Reconsideration Reinforces Malitskiy

By Aimee Jessop, Articling Student, Schultz Law Group LLP

Overview

The Licence Appeal Tribunal's reconsideration decision inThompson v Definity Insurance Company, 2025 CanLII 132408 (ON LAT) provides important clarification on the calculation of attendant care benefits and confirms the continuing authority of the Divisional Court's decision in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 (CanLII). Most significantly, the Tribunal held that Malitskiy remains binding on the interpretation of section 19 of the Statutory Accident Benefits Schedule ("SABS"), regardless of a claimant's date of loss or subsequent changes to the Attendant Care Hourly Rate Guideline.

The Decision

In the original LAT decision, the applicant was awarded $3,028.54 per month in attendant care benefits based on a Form 1 assessment. The adjudicator relied on the 2018 Attendant Care Hourly Rate Guideline and concluded that the insurer was required to fund the full Form 1 amount. Definity sought reconsideration, arguing that this approach was inconsistent with Malitskiy and the calculation methodology mandated by section 19 of the SABS.

The Vice-Chair agreed and ordered the attendant care quantum issue returned for rehearing before a new adjudicator.

Why It Matters

The key issue on reconsideration was whether Malitskiy could be distinguished because it involved a 2014 date of loss, and the applicable Guideline was updated in 2018. The Tribunal rejected that argument, finding that Malitskiy is fundamentally about the interpretation of section 19 of the SABS, not about any particular version of a Guideline.

As a result, the Tribunal confirmed that attendant care benefits must continue to be calculated using the statutory framework set out in section 19(2). Adjudicators cannot simply rely on the total monthly amount identified in a Form 1 without applying the hourly rate methodology endorsed by the Divisional Court.

Implications for Insurers

The decision is a significant development for insurers defending attendant care claims. For years, claimants have argued that changes to the Guideline permit recovery beyond the hourly-rate framework recognized in Malitskiy. The Tribunal has now made clear that amendments to the Guideline do not displace the Divisional Court's interpretation of section 19.

Thompson therefore provides strong support for the position that the Form 1 rate structure remains relevant regardless of the claimant's date of loss and that attendant care calculations must remain grounded in the statutory methodology prescribed by the SABS.