Ontario's Divisional Court has sided with Intact Insurance, upholding a tribunal ruling that a claimant had not met the bar for catastrophic impairment.
The decision, released April 13, 2026, closes the door on Jennifer Jones-Whyte's appeal and judicial review of a Licence Appeal Tribunal ruling that found she had not established catastrophic impairment under Criterion 8 of Ontario's Statutory Accident Benefits Schedule. A three-judge panel dismissed both challenges, with costs of $5,000, all inclusive.
For accident benefits insurers, the ruling is a quiet but useful win. It reaffirms that tribunal adjudicators have real room to run their own hearings, manage expert witnesses, and accept late surveillance when circumstances justify it.
The underlying dispute was narrower than it sounds. By the time the hearing rolled around in October 2024, most issues had fallen away. What remained was a single question in two parts: whether the claimant's impairment in her day-to-day activities and in her concentration, pace and persistence was marked, as her side argued, or merely moderate, as Intact's experts maintained. Both sides agreed some impairment existed. The fight was about degree.
A five-day hearing had been booked at a May 2024 case conference, back when the case was larger. Once the issues shrank, so did the witness list. The adjudicator trimmed the claimant's examination-in-chief from five hours to 90 minutes, allotted the same for cross-examination and 15 minutes for redirect, gave the claimant's sister a little over two hours, and set time limits for the experts, later extending them as the evidence unfolded. The claimant argued that was unfair. The Divisional Court disagreed, noting the adjudicator heard from every witness and distinguished an earlier case, Plante v. Economical Insurance Company, where a 20-day hearing had been cut to five without any change in the case itself.
The expert evidence ruling is the one claims professionals will want to note. Intact's psychiatrist, Dr. Eisen, had reviewed the claimant's psychiatrist Dr. Gnam's June 2022 report when preparing his own November 2023 reports, and was allowed to comment on it at the hearing. Dr. Gnam, who had not reviewed Dr. Eisen's reports and never filed an addendum, was not given the same latitude. The Divisional Court called that even-handed, grounded in the tribunal's rules around the production of expert reports.
Then there was the surveillance. Intact served a second surveillance report about a month before the hearing, past the usual 75-day deadline. The adjudicator let it in, noting the footage had not yet existed when that deadline passed. It could be put to the claimant, but not to experts on either side, and neither side's experts ended up commenting on it.
On he law itself, the court rejected the argument that the adjudicator had applied the wrong test for Criterion 8, pointing out that the reasons did compare the claimant's pre- and post-accident life, and that a formal pre-accident baseline is not legally required. Citing Wilson v. Intact Insurance Company, the court said the rest of the argument was really a plea to reweigh the evidence, which is not the appellate court's job.
For insurers, the message is practical. Disciplined hearings, careful handling of expert evidence, and properly explained late surveillance still carry the day.
