Category: Divisional Court

Certas Home and Auto Insurance Company v. Okenge (2026 ONSC 1189)

The insurer appealed the Tribunal’s decision that the claimant was an insured person due to dependency for care on his sister. The claimant was 19 years old at the time of the accident, which occurred in Nebraska. The claimant moved to Canada from Uganda when he was 14 years old and lived with his sister for a few years, before moving to Oklahoma to high school and then Nebraska for university. He was living in a student residence when the accident occurred. The Tribunal concluded that the claimant was principally dependent for care on his sister because he maintained her address as his mailing address and returned to her home during holidays and summers; the sister acted like a parent to him, the sister Facetimed with the claimant frequently; the claimant’s mother was unable to provide support and was mostly absent; the claimant never lived independently in his own residence or supported himself financially. The Court dismissed the appeal, holding that the Tribunal applied the proper test and legal principles, and applied those principles to the evidence.

Marcelo v. The Personal Insurance Company (2026 ONSC 974)

The claimant appealed the Tribunal’s decision that her injuries fell within the “minor injury” definition. One of the injuries sustained in the accident was an intracranial brain contusion. The Tribunal held that the injury was a “minor injury” because it was a contusion. The Court allowed the appeal, holding that an intracranial brain contusion was not a “minor injury” and that the claimant was entitled to medical benefits above the $3,500 limit.

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.

Hasan v. Allstate Insurance Company (2025 ONSC 1562)

The claimant appealed the Tribunal’s decision that he was bound by a settlement. He argued that the allocation of $0 to certain benefits showed that those benefits were not settled. The Court rejected the claimant’s arguments and dismissed the appeal. The SDN and Release were clearly a settlement of all claims arising out of the accident. Additionally, the claimant had not repaid the settlement funds to the insurer, which barred him from advancing the claim to resile from the settlement.

Sorrentino v. Certas Home and Auto Insurance Company (2025 ONSC 5518)

The claimant appealed the Tribunal’s denial of a $365,257 home modification to the claimant’s daughter’s home. The Court granted the appeal with immediate effect, ordering the insurer to pay the home modifications, with written reasons to follow. The Court explained that the claimant’s age made it unfair for the matter to be remitted to the Tribunal for a new hearing, and that the claimant required the modifications to ensure she did not suffer another injurious fall.

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.

Gutierrez v. Security National Insurance Company (2025 ONSC 5174)

The claimant sought judicial review of the LAT’s decision that he was not entitled to IRBs, and the LAT’s refusal to add the claim for pain and suffering. The Divisional Court dismissed the judicial review, holding that the Tribunal considered the evidence before it when adjudicating the IRB claim, and that the Tribunal reasonably declined to add a claim for pain and suffering.

Wais v. Coachman Insurance Company (2025 ONSC 5595)

The claimant appealed the Tribunal’s decision that he was not insured under the Coachman policy due to the policy being cancelled, and that Coachman was not required to open a claim. The Court dismissed the appeal, holding that the Tribunal correctly found that the claimant was not an insured under the policy, and it was therefore not required to accept the claim. The Court held that the Supreme Court’s decision in Zurich v. Chubb was not applicable, because that case related to a dispute with two active policies.

Patton v. Aviva Insurance Co. of Canada (2025 ONSC 4234)

The claimant appealed the Tribunal’s decision that his IRB claim was barred by the limitation period. The claimant initially made an application for IRBs, but the returned to full time work. The claimant subsequently went off work more than three years later. He argued that his IRB claim was not discoverable until he went back off work. The Tribunal disagreed, holding that the insurer’s denial of IRBs when the claimant returned to work was sufficient to trigger the limitation clock, and that the claimant did not dispute entitlement within two years. The Court dismissed the appeal, holding that the Tribunal applied the law correctly. The Court held that the initial denial was clear and unequivocal. Subsequent communications by the insurer regarding calculation of the IRB for the period the claimant was initially off work did not re-start the limitation clock. Finally, the Court held that the claimant did not discover his claim for IRBs after going off work a second time, and that the claimant could not “re-apply” for post-104 week IRBs.

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles

Powered by Crow & Pitcher

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com