COURT OF APPEAL FOR ONTARIO

CITATION: Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONCA 835

DATE: 20251201

DOCKET: M56463 (COA-25-OM-0375)

Paciocco J.A. (Motion Judge)

BETWEEN

Ersilia Sorrentino

Responding Party

and

Certas Home and Auto Insurance Company

Moving Party

D’Arcy McGoey, for the moving party

Jane Conte and Peter Esfandiari, for the responding party[^1]

Heard: November 27, 2025

REASONS FOR DECISION

I. Overview

[1] The responding party, Ersilia Sorrentino, was 83 years of age on April 26, 2016, when she sustained catastrophic injuries in an automobile accident. Those injuries have impeded her independence. After the accident Ms. Sorrentino continued living in her apartment with attendant care services. She submitted a request to the moving party insurer, Certas Home and Auto Insurance Company, for benefits pursuant to the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”) to fund home modifications. Both parties agree that to accommodate Ms. Sorrentino’s injuries and provide her with a safe living environment, home modifications are required. Ms. Sorrentino requested $388,082.53 for modifications to her daughter’s home, with the intention that she would move in with her daughter and her daughter would provide care. Her request was denied. Certas agreed instead to pay $22,825.53 for changes to her existing condominium.

[2] Ms. Sorrentino disputed Certas’ denial of her SABS request before the Licence Appeal Tribunal (“LAT”). Her application was dismissed on December 9, 2024 (the “LAT Decision”), and the LAT adjudicator denied her application for reconsideration on April 2, 2025.

[3] On September 23, 2025, the Divisional Court overturned the LAT Decision and ordered the remaining amount of the claim, $365,257.00, to be paid “with immediate effect”. It also considered and denied a stay of its decision pending proceedings to seek leave to appeal to this court.

[4] On September 30, 2025, an oral endorsement was released. It indicated that reasons for decision would follow “in due course” but explained:

The Appellant is 92 years old. She requires the money to move forward with her life. If we were to remit the matter back, it is reasonably foreseeable that justice would come too late to do her any good at all. As it is, the Appellant has suffered another injurious fall and cannot return to her condominium.

[5] Beyond the short oral endorsement, the reasons for decision from the Divisional Court have not yet been released. Certas has brought a motion for leave to appeal the Divisional Court decision. That motion is still pending and is not the subject of this decision.

II. THE EXTENSION MOTION

[6] Certas asks for an extension of time to serve and file the materials for their motion for leave to appeal, for a period of 30 days subsequent to the release of the Divisional Court’s decision. Ms. Sorrentino does not oppose this request. I grant this motion, given that the reasons are required to identify the basis for leave to appeal.

III. THE STAY MOTION

[7] Certas has also brought a motion for a stay of the Divisional Court’s order pending appeal. The test for a discretionary stay under r. 63.02(1) (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is well-established and mirrors the test for an interlocutory injunction in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at pp. 676-77. The moving party bears the burden of proof in demonstrating that the stay pending appeal should be granted: Ducharme v. Hudson, 2021 ONCA 151, 155 O.R. (3d) 281, at para. 11. The factors to determine whether a stay is in the interests of justice include:

(a) Whether there is a serious issue to be tried;

(b) Whether the moving party would suffer irreparable harm if the stay were refused; and

(c) The balance of convenience, namely which of the parties would suffer greater harm from the granting or refusing of the stay.

[8] Since the overarching consideration is whether it is in the “interests of justice” to order a stay, relevant considerations beyond those three factors can be considered. For example, in Morguard Residential v. Mandel, 2017 ONCA 177, at paras. 18 and 27-28, Gillese J.A. considered the “clean hands” doctrine in denying a stay motion.

[9] I am dismissing the stay motion because I am not satisfied that this test has been met.

A. Serious Issue to be Tried

[10] The “serious issue to be tried” threshold is a low one, but where, as a practical matter, the rights of the parties would be determined by the outcome of the stay motion, then the court may give more weight to the strength of the appeal: RJR-MacDonald, at p. 338; Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10. Moreover, where a party is seeking a stay in parallel to a motion for leave to appeal, consideration of the principles governing leave motions must also be had: Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89, at para. 5. The test established in Sault Dock Co. Ltd. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.) governs leave to appeal applications from a final order of the Divisional Court rendered on appeal.

[11] Certas is hampered in demonstrating that there are serious issues to be tried in their leave to appeal motion because the Divisional Court decision has not yet been released. In Reynolds v. Alcohol and Gaming (Registrar), 2019 ONCA 788, at paras. 7-8, Nordheimer J.A. presumed this requirement to be satisfied under similar circumstances. I will do the same.

[12] I am satisfied that the serious issue criterion favours allowing the stay motion.

B. Irreparable Harm

[13] Certas argues that if a stay is not granted it will suffer irreparable harm because if the modifications are made to Ms. Sorrentino’s daughter’s house with the payment pending appeal, as intended, the money will likely be unrecoverable should Certas be granted leave and prevail in the appeal. Even if Certas is correct and strictly monetary loss can constitute irreparable harm, it has shown no more than a risk that if it makes the payments and ultimately prevails, those payments may not be recovered, in whole or in part.

[14] Although it has been made clear on Ms. Sorrentino’s behalf that she “needs” the disputed SABS benefits request to be fulfilled so she can receive the care she requires, no evidence was presented relating to her financial means or that of her estate, and Certas has not demonstrated that it would be without restitution remedies if it is left to attempt to recover the costs of the improvements made to the daughter’s home. I recognize that there is a risk of irreparable monetary loss, but the intensity of that risk is unclear, if not speculative. An applicant for a stay cannot rely on speculative evidence about irreparable harm; their evidence must establish a high degree of probability that permanent and non-compensable harm will in fact occur: Morguard, at para. 24; Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 11. In my view, Certas has not met its burden in establishing irreparable harm, which favours dismissing the stay request.

C. Balance of Convenience

[15] I am persuaded that the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusing of the stay, does not favour a stay. Quite the contrary. If Certas pays but later obtains leave, and prevails, there is a possibility, but not a certainty, that they may have paid money that cannot be recovered. In contrast, the harm in granting a stay pending the motion for leave to appeal is considerable. Ms. Sorrentino is now at least 92 years of age. It is not disputed she is in poor health. It is not disputed that she is in a long-term care facility and requires significant assistive care. There is a serious risk that if the Divisional Court order is stayed pending appeal, Ms. Sorrentino will never enjoy the SABS benefits that are in contention. There will be significant inherent delay in waiting for the Divisional Court’s reasons for decision; determining the leave application; perfecting, scheduling, and hearing the appeal; and issuing a decision on merits. The essence of the dispute is about modifications to Ms. Sorrentino’s proposed place of residence to accommodate her care for the remainder of her life. There is a real probability that this stay request will be the determining issue on whether Ms. Sorrentino will enjoy the benefits of the insurance contract that are in contention.

[16] The money should be paid without delay, as the Divisional Court concluded on the record before it.

D. Other Considerations

[17] I therefore dismiss the motion considering only the conventional factors above.

[18] I would add that this is a SABS dispute. It is an important feature of that regime that claims made by individuals for SABS benefits are not delayed by payment dispute litigation. In my view, granting the stay would be contrary to this important policy principle.

IV. CONCLUSION

[19] Certas’ motion for an extension of time to serve and file its motion record, factum, and transcripts (if any) for the leave to appeal motion is therefore granted. The new deadline will be 30 days after the Divisional Court releases its written reasons for decision.

[20] Certas’ motion for a stay pending appeal is dismissed. Immediate compliance with the Divisional Court order is required.

[21] Costs are payable by Certas to Ms. Sorrentino in the amount of $5,000 inclusive of applicable taxes and disbursements.

“David M. Paciocco J.A.”

[^1]: Peter Esfandiari appeared but made no written or oral submission on behalf of the responding party.