Ontario's Licence Appeal Tribunal backed Intact in a catastrophic impairment case shaped by partial surveillance and unqualified treating experts. The ruling dismissed the applicant's bid for benefits, addressing how much surveillance footage had to be disclosed and whether treating providers could testify as experts without filing the required paperwork.
The applicant was involved in an automobile accident on September 15, 2021, and sought statutory accident benefits after Intact Insurance Company denied her claim. She argued she met the threshold for catastrophic impairment under Criterion 8 of the Statutory Accident Benefits Schedule, which requires three marked impairments, or one extreme impairment, across four domains of mental or behavioural function. Following a four-day videoconference hearing held over April 27 to 30, 2026, adjudicator John Mazzilli released his decision on August 7, 2026, dismissing the application.
Before reaching the merits, the tribunal dealt with a dispute over surveillance evidence. Intact's surveillance report indicated that surveillance had been conducted over 29.5 hours, but the insurer sought to rely on only a 21-minute video. The applicant argued this amounted to prejudicial, cherry-picked footage and asked the tribunal to exclude it, saying the full 29.5 hours would be needed to give a fair picture. Intact said the applicant had not requested surveillance disclosure at an earlier case conference, that it disclosed the material within the ordered timelines, and that it tried but failed to obtain the full 29.5 hours during the hearing itself. The adjudicator allowed Intact to rely on the shorter video, finding no prejudice to the applicant because the footage had already been put to her in cross-examination on the first day of the hearing without objection.
The tribunal also addressed whether two of the applicant's treating providers, an occupational therapist and a family physician, could give expert evidence despite neither having filed an acknowledgment of expert duty form. Intact objected to the occupational therapist's qualification as an expert, arguing she could not be considered independent given her treating relationship with the applicant. The adjudicator found that because no acknowledgment of expert duty had been filed, Intact could not properly have challenged her credentials under the tribunal's rules, and permitted both providers to testify as participant experts under the principles in Westerhof v. Gee Estate, with their opinions restricted to what they had personally observed or participated in.
On the impairment question itself, the adjudicator preferred the evidence of the insurer's psychiatrist, who conducted an in-person assessment lasting two and a half hours and was made available for cross-examination, over the applicant's psychiatrist, whose assessment was virtual and of undetermined length, and who did not appear for cross-examination. The tribunal found the applicant had sustained moderate, rather than marked, impairments in daily living, social functioning, and concentration, persistence and pace, falling short of the catastrophic threshold. As the non-catastrophic benefit limit of $65,000 had already been exhausted, the tribunal found it unnecessary to rule on the disputed treatment and assessment plans. Because no benefits were owing, the tribunal dismissed the applicant's remaining claims for interest and for a special award under the Insurance Act regulations.
