Ontario's Divisional Court has tossed a Licence Appeal Tribunal ruling that sided with Economical Mutual Insurance Co. in a catastrophic impairment dispute, ordering a fresh hearing.
In a decision released May 25, 2026, a three-judge panel of the Divisional Court quashed the LAT's September 21, 2023 ruling in Chevalier-Wara v. Economical, 2026 ONSC 2982. The Tribunal had denied Kyle Chevalier-Wara a catastrophic impairment designation under the Statutory Accident Benefits Schedule and rejected his claim for attendant care benefits of $1,671.62 per month from April 19, 2019 onward.
The case turned on the Glasgow Outcome Scale - Extended. Chevalier-Wara, a former carpenter and general construction labourer who suffered a traumatic brain injury, needed a level 5 rating (lower moderate disability) to qualify as catastrophically impaired. The Tribunal placed him at level 6 (upper moderate disability), finding he could work in a reduced capacity outside a sheltered or non-competitive setting.
Writing for the panel, Justice D.L. Corbett found the Tribunal's reasons "inadequate" and "largely conclusory," resting in places on factual findings with no supporting evidence. The Tribunal had leaned heavily on the appellant's post-accident activities - removing panelling at his aunt's house, helping friends with home projects, and volunteering with children at his jiu jitsu club - to conclude he was able to work in a reduced capacity and not only in a sheltered or non-competitive workplace.
The court found the Tribunal characterized the appellant as effectively running the children's jiu jitsu program. That was not his evidence, and no one from the school testified about what he actually did. The Tribunal also relied exclusively on the appellant's self-reporting despite expert evidence that brain injury patients tend to overstate their functioning.
Six witnesses testified for the appellant, including treating rehabilitation psychologist Dr Pelletier, occupational therapist Ms Wilson, and neuropsychologists Dr Mendella and Dr Sweet. Only the appellant's own testimony was discussed in the Tribunal's catastrophic impairment analysis. The court noted the Tribunal implicitly rejected Dr Mendella's GOS-E scoring without explanation and may have preferred the opinion of the insurer's occupational therapist, Ms Evans, who - the court observed - was not qualified to provide that opinion under the SABS.
Dr Pelletier, described in the decision as a neuropsychologist with 35 years of experience who had treated the appellant for five years, testified that jiu jitsu and running can be pursued by people with the highest level of traumatic brain injury and tell little about executive deficits. He told the hearing the appellant is "destroyed on the inside."
Justice Corbett wrote that the medical evidence "strongly supported a designation in category 6" and did not place the appellant close to the line between 5 and 6. The errors on the central issue, the court said, made the rest of the decision unsafe.
The Divisional Court set the LAT decision aside entirely and remitted the matter for a fresh hearing before a different Adjudicator, with scheduling priority given the length of the delay. Economical was ordered to pay $5,000 in agreed costs within 30 days.
For accident benefits insurers and claims professionals, the court held that the Tribunal's reasons were inadequate, rested in part on factual findings with no evidentiary basis, and failed to account for the extensive medical and expert evidence.
