Category: Catastrophic Impairment

Chevalier-Wara v. Economical (2026 ONSC 2982)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment based on the GOS-E test, and that he was not entitled to attendant care benefits. The claimant argued that the Tribunal’s reasons were inadequate. The Court agreed, concluding that the reasons were largely conclusory, rested on factual findings that there was no evidence to support, and the reasons failed to grapple with the opposing expert views on the claimant’s impairments. The Court granted the appeal, and ordered the Tribunal to conduct a new hearing on the claim.

Jones-Whyte v. Intact Insurance Company (2026 ONSC 1927)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment due to three Class 4 marked impairments. The claimant argued that the Tribunal acted unfairly in limiting the time for examination and cross-examination of witnesses, and by allowing the insurer’s expert to comment on the claimant’s expert’s report but not vice versa. The Court dismissed the appeal, finding that the Tribunal acted fairly. The adjudicator was entitled to control the process, and the time limits on examination and cross-examination were applied fairly and equally to all witnesses, and the parties were able to call all witnesses they wished to testify. The Court did not find unfairness in the adjudicator allowing the insurer’s expert to comment on the claimant’s expert’s report while disallowing the reverse because the insurer’s expert had a copy of the claimant’s expert’s report when generating his own report, whereas the claimant’s expert did not have the insurer’s expert’s report when generating his report. Further, the claimant could have requested an addendum report from her own expert to respond to the insurer’s expert, but chose not to.

Fernando v. Aviva Insurance Company of Canada (24-007755)

The claimant was involved in an automobile accident in 2015 and was deemed catastrophically impaired in 2024. At the LAT hearing, the insurer submitted that the claimant had violated the CCRO by submitting nine pages of separate submissions on the award when the CCRO limited total submissions to ten pages. The insurer maintained that it was prejudiced in only having 10 pages to respond and the claimant’s special award particulars should be rejected by the Tribunal. The Tribunal found that the claimant’s submissions did not comply with the Tribunal’s orders. The CCRO ordered that the claimant provide particulars of the award claim within 30 calendar days after receipt of the adjusters’ log notes. The CCRO also indicated the hearing adjudicator could choose to not consider submissions which exceeded page limits. The Tribunal chose to do so in this matter because it found that the claimant and the respondent agreed to the page limits at the CCRO, the claimant did not seek an order for additional pages prior to making her submissions, and it was prejudicial to the insurer. Therefore, the Tribunal did not consider the first four pages that included the introduction, overview, nature of disputed benefits, and legal framework. The Tribunal did however consider the claimant’s argument for a special award, conclusion and relief sought on pages 5 to 8. The Tribunal found that the insurer was not liable to pay an award. The claimant was found to be entitled to case management services, psychological therapy, and OT services.

Dorcil v. Wawanesa Insurance (2026 ONSC 1446)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The Tribunal found a 51 percent WPI. The claimant argued that the Tribunal’s refusal to rate her sleep impairment was unreasonable. The Court dismissed the appeal, concluding that the Tribunal did not err by not rating the sleep impairment. The Tribunal did not conclude that sleep disorder was not a rateable condition, but that the claimant and her experts did not give persuasive evidence that the claimant herself suffered a sleep impairment that warranted rating under the AMA Guides.

Mensah v Co-operators General Insurance Company (24-014094)

The claimant was involved in an automobile accident in February 2022. She applied to the LAT seeking CAT determination under Criterion 8 and entitlement to IRBs, ACBs, and numerous medical benefits. The claimant brought a motion to exclude the surveillance evidence because the respondent did not comply with the case conference order to disclose the investigator’s handwritten notes, the surveillance agreement between the respondent and the investigation company, all communications between the investigator and the respondent, invoices, and unredacted adjuster log notes that relate to surveillance. The LAT found that the surveillance evidence was admissible because of the probative nature of the evidence. The LAT found that the claimant was not CAT and not entitled to the majority of the issues in dispute.

Economical Insurance Co. v. Abou-Gabal (2026 ONSC 42)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment. The claimant was injured in a minor accident. She had pre-existing severe autism. The insurer’s primary argument was the that claimant’s functioning did not change after the accident, and that the claimant already suffered a catastrophic-like level of impairment. The adjudicator hearing the matter was a member of an autism interest group, had a sibling with autism, and wrote articles in support of greater funding for persons with autism. The Court held that there was a reasonable apprehension of bias, and sent the matter back to the Tribunal for a new hearing. The Court explained that while a decision maker does not have leave their personal life behind when they become an adjudicator, they are expected to publicly withdraw from advocacy on issues that may come before them, or alternatively, to identify the potential appearance of bias and recuse from the matter.

Nuroh v. TD General Insurance Co. (2025 ONSC 6997)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment, arguing that the Tribunal’s failure to summons the insurer’s IE witness resulted in procedural unfairness. The Court agreed and ordered a new hearing. The Court wrote that the Tribunal, despite having its own Rules, must afford parties procedural fairness. The insurer’s IE witness was central to the catastrophic impairment issue, and the refusal to provide a summons of the witness prevented the claimant from advancing her own case. The Court noted that the insurer did attempt to procure the IE witness’ attendance, but it was the Tribunal that failed to provide procedural fairness because it was the only entity with the power to summons the witness.

Wilson v. Intact Insurance Company (2025 ONSC 5305)

D'Arcy McGoey Presents at CDL Conference new

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The Court held that the Tribunal came to an unreasonable conclusion with respect to the WPI ratings for double vision, peripheral neuropathy, and medications. The adjudicator took a rigid view of the AMA Guides and refused to provide any WPI for double vision when there was ample evidence with objective testing to support as much as a 24 percent WPI rating. The adjudicator was also unreasonable in refusing to rate WPI for peripheral neuropathy based on his own error in referencing the wrong tables and pages in the Guides, and then refusing to adjust the error on reconsideration. Similarly, the adjudicator’s refusal to rate WPI for medications was unreasonable when he was directed to an error in his factual findings regarding the medical evidence. The Court dismissed the other grounds of appeal, and remitted the matter to the Tribunal for a new hearing.

Abboud v. Intact Insurance Co. (2025 ONSC 3416)

The applicant requested reconsideration of the Tribunal’s decision. The hearing adjudicator dismissed the request (2024 CanLII 102098). The adjudicator did not agree that s. 280(1) of the Insurance Act could be interpreted as providing jurisdiction to determine the rate to be paid for attendant care. The adjudicator also did not agree that it was an error of law to require a breakdown of what services were provided and for how long they were performed. Lastly, the adjudicator found that finding that Bulletin A-03/18 limited the Form 1 to calculating the amount of attendant care to be paid was not inconsistent with the principles in Malitskiy v. Unica Insurance, 2021 ONSC 4603 for the purpose of applying the ratio method for paying for attendant care.

Martin v. Certas Home and Auto Insurance Co. (2025 ONSC 665)

The claimant appealed the Tribunal’s decision that she did not sustain a catastrophic impairment. Her primary argument was that the LAT erred in rejecting the evidence of her chiropractor in the ratings for Criterion 6, 7, and 8. The Tribunal rejected the chiropractor’s evidence insofar as the chiropractor gave opinion and diagnosis of psychological injury, and preferred the evidence of the insurer’s experts who were qualified to diagnose psychological conditions. The Court dismissed the appeal, holding that the Tribunal correctly applied the law in restricting the scope of the chiropractor’s admissible evidence. The SABS and AMA Guides permit a chiropractor to give certain opinions on catastrophic impairment when it comes to physical impairment ratings, but does not allow a chiropractor to give evidence outside of their qualified areas of expertise.

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