2026 ONSC 1687
DIVISIONAL COURT FILE NO.: 50/22 and 50/22-JR
DATE: 20260324
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Firestone R.S.J., Lococo and Shore JJ.
BETWEEN:
Kevin Goovaerts, party under disability, by his Litigation Guardian, Cindy Malik
Appellant/Applicant
– and –
Motor Vehicle Accident Claims Fund and Licence Appeal Tribunal
Respondents
Brian Smith and Douglas A. Wallace, for the Appellant/Applicant
Jennifer Chapman and Jennifer. Mitchell, for the Respondent, Motor Vehicle Accident Claims Fund
Sabrina Fiacco, for the Respondent, Licence Appeal Tribunal
HEARD in London: November 26, 2025
REASONS FOR JUDGMENT
Firestone R.S.J.
I. Introduction
[1] This is both a statutory appeal from and application for judicial review of the Licence Appeal Tribunal (“LAT”) decision dated August 2, 2022 (the “LAT decision”). The LAT decision concerns the determination of attendant care benefits (“ACBs”) payable to Kevin Goovaerts following a motor vehicle accident on June 12, 1999.
[2] Kevin requests that the LAT decision be set aside and that this court order the Motor Vehicle Accident Claims Fund (the “Fund”) to pay ACBs in the amount of $3,815 per month retroactive from March 7, 2000, to date and ongoing. Kevin further requests that the Fund be ordered to pay a penalty per Automobile Insurance, R.R.O. 1990, O. Reg. 664, s. 10, and interest in accordance with the Statutory Accident Benefits Schedule - Accidents On or After November 1, 1996, O. Reg. 403/96, s. 46(2) (the “1996 SABS”).
[3] In the alternative, Kevin requests that the matter be referred back to the LAT for a new hearing before a different adjudicator to determine the amount of ACBs payable from March 7, 2000.
[4] For the reasons that follow, I find that the adjudicator erred by failing to correctly apply the test from the 1996 SABS. I further find that the decision as a whole is unreasonable.
[5] I would therefore set aside the LAT decision and order a new hearing before a different adjudicator.
II. Background and Procedural History
[6] Kevin sustained a permanent brain injury on June 12, 1999, when he fell out of the back of a moving pickup truck. He was 27 years old. The injury to his orbital frontal lobe caused ongoing executive-function impairments. Kevin is easily flustered and confused. Although he can live independently and manage daily tasks, he needs routine and structure. He has only a limited ability to respond to unexpected events.
[7] After the accident, Kevin’s mother applied to the Fund for statutory accident benefits pursuant to the 1996 SABS. The Fund accepted that Kevin had sustained catastrophic impairment, which entitled him to an enhanced level of statutory accident benefits including, if reasonable and necessary, a payment of up to $6,000 per month for attendant care.
[8] Kevin spent four months in the hospital and in-patient rehabilitation. Kevin was discharged on October 8, 1999, and returned home. Before his discharge, on September 30, 1999, Parkwood Hospital completed a Form 1 recommending that 24-hour attendant care be paid in the amount of $5,575.31 per month. The Fund initially paid this amount in accordance with the 1996 SABS.
[9] As Kevin’s condition improved, he underwent three subsequent insurer examinations. Lorrinda Maybee, an occupational therapist, completed three new Form 1s to reassess Kevin’s attendant care needs. No cognitive, physical, or functional assessments took place during these reviews. The Form 1 dated December 7, 1999, reduced Kevin’s monthly ACBs to $3,815.30. A further Form 1 dated March 7, 2000, reduced it to $1,374.20. A final Form 1 dated August 15, 2000, reduced it again to $120.40 per month.
[10] Kevin moved from his parents’ home to his own apartment a block away in March 2001. He later moved with them to Orillia in December 2023. In December 2024, Kevin moved into his own home, where he continues to live alone.
[11] On November 15, 2000, the Fund stopped paying Kevin’s ACBs without any notice or warning. No Designated Assessment Centre evaluation occurred prior to the stoppage. The Fund later indicated that it intended only to place the payments on hold pending reassessment, not to terminate them altogether. However, it never communicated that intention to Kevin or his counsel in writing or otherwise. After suspending the payments, the Fund neither arranged a reassessment nor resumed payment. The issue remained dormant until Kevin retained new counsel in or around 2018.
[12] Kevin’s new counsel disputed both the reduced ACBs and the suspension on November 15, 2000. A retroactive Form 1 was filed in February 2019, seeking payment of $5,575.31 per month plus interest from November 15, 2000, onward. Kevin’s new counsel subsequently applied to the LAT for retroactive payment of the ACBs in the amount of $3,815 per month from March 7, 2000.
[13] The Fund acknowledged that suspending the ACBs in 2000 was an error only after the retroactive Form 1 was filed. The Fund agreed to pay $120.40 per month, with interest, from November 2000 onward. ACB payments continue at that rate.
[14] In the LAT decision, the adjudicator held that the correct amount of ACBs were paid before the November 2000 suspension. For the period after the suspension, the adjudicator concluded that $120.40 per month from November 2000 and ongoing is the correct ACB. The adjudicator found that there were two exceptions to these monthly payments, in which Kevin was entitled to an increased ACB of $451.50 per month (i.e., a “top up” of $331.10 per month in addition to the $120.40 monthly base). This consisted of two six-month periods following Kevin’s moves to Orillia in December 2023, and to his own house in December 2024. The LAT also awarded Kevin interest at 2 percent pursuant to s. 46(2) of the 1996 SABS.
III. Governing Principles
(a) The LAT Process
[15] Section 280 of the Insurance Act, R.S.O. 1990, c. I.8, grants the LAT exclusive jurisdiction over disputes in respect of an insured person’s entitlement to statutory accident benefits or the amount of statutory accident benefits to which an insured person is entitled. To that extent, s. 280(3) deprives the Superior Court of jurisdiction. An insured person is precluded from commencing an action for statutory accident benefits in the Superior Court: Yang v. Co-operators General Insurance Co., 2022 ONCA 178, 21 C.C.L.I. (6th) 1, at para. 4, leave to appeal refused, [2022] S.C.C.A. No. 40176.
(b) Concurrent Judicial Review and Statutory Appeal
[16] The statutory right of appeal on questions of law does not preclude the availability of a parallel judicial review application on questions of fact or mixed fact and law not dealt with in the statutory appeal. Judicial review applications in this context are not restricted to “exceptional circumstances” or only available in “rare cases”. Such parallel methods of review allow a reviewing court to consider the legal and factual aspects of the decision under review. The reviewing court retains discretion regarding whether to grant the relief requested by way of judicial review: Yator v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 4.
(c) Jurisdiction and Standard of Review
Statutory Appeal
[17] This Court has appellate jurisdiction pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G, which provides that an appeal from the LAT relating to a matter under the Insurance Act may be made to the Divisional Court on a question of law only.
[18] Questions of law are questions about what the correct legal test is; questions of fact are questions about what took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[19] The appellate standard of review applies: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The appeal is statutorily restricted to questions of law, which are reviewable on a correctness standard: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 53.
[20] A court engaged in reviewing the standard of correctness may substitute its own view for that of the administrative decision maker: Vavilov, at para. 54.
Application for Judicial Review
[21] The applicable standard of review is reasonableness: Vavilov, at para. 23. The onus is on the applicant to demonstrate that the decision is unreasonable. Any shortcoming must be more than merely superficial or peripheral to the merits of the decision: Vavilov, at para. 100. Deference is to be afforded to the decision maker: Vavilov, at para. 85. A reasonable decision is one that is transparent, intelligible and justified in light of the evidentiary record: Vavilov, at paras. 15, 126. It is not the role of the reviewing court to re-weigh or reassess the evidence considered by the decision maker: Vavilov, at para. 125.
[22] A reasonableness review is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review: Vavilov, at para. 13. When engaging in a reasonableness review, the reviewing court is to consider whether the decision made, including the rationale for the decision and outcome, are reasonable: Vavilov, at paras. 83-84. Two fundamental flaws can render a decision unreasonable. The first is where the decision is not based on internally coherent reasoning. The second is where the decision is not justified or is untenable in light of the legal and factual constraints that bear on the decision: Vavilov, at para. 101.
[23] The general constraints will differ depending on the context. Generally, a reviewing court will consider the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision maker and facts of which it may take reasonable notice, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies: Vavilov, at para. 106.
[24] The decision maker’s reasons must account for the central issues and concerns raised by the parties. The failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was alive or sensitive to the matters at issue: Vavilov, at paras. 127-128.
[25] While administrative decision makers are not bound by stare decisis, those affected by administrative decisions are entitled to expect that like cases will generally be treated alike. Where a decision maker departs from longstanding practices or established internal authority, it bears the justificatory burden of explaining such departure in its reasons. If such a departure is not justified, the decision is unreasonable: Vavilov, at paras. 129, 131.
IV. Issues Raised by the Parties
Did the LAT err in law by failing to interpret the purpose of ACBs under s. 16 of the 1996 SABS?
Did the LAT err in law by equating Kevin’s attendant care needs with the actual care he received?
Did the LAT err in law by ignoring the evidence of key witnesses?
Is the LAT’s decision rational and logical or is it untenable, in some respect, given the factual and legal constraints bearing on it such that it warrants judicial review?
Is Kevin entitled to raise new issues or seek new relief not requested at the original hearing?
Are issues 3, 4 and 5 questions of law?
[26] Given that the issues are interrelated, I will address them together.
V. Positions of the Parties
[27] Kevin submits that the LAT approached the assessment of attendant care needs as a binary exercise between 24/7 care and $120.40 per month. The LAT ignored relevant case law and evidence that returning Kevin to his pre-accident standard of daily living as best as possible is the goal facilitated by ACBs in the 1996 SABS.
[28] The Fund submits that the LAT decision properly considered the purpose of ACBs and refused to find Kevin’s evidence persuasive. The adjudicator focused on Kevin’s needs and considered the testimony of his family members, family doctor, occupational therapists, and the relevant contemporaneous medical documents.
VI. Analysis
[29] The starting point for determining the purpose and nature of ACBs under the 1996 SABS is the Court of Appeal for Ontario’s pronouncement in Tomec v. Economical Mutual Insurance Co., 2019 ONCA 882, 148 O.R. (3d) 438, leave to appeal refused, [2020] S.C.C.A. No. 39017. Hourigan J.A. confirms the principle that the Statutory Accident Benefit Schedule is consumer protection legislation and “is supposed to maximize benefits”: Tomec, at paras. 42-43. At para. 42, the Court of Appeal adopts the purpose of no-fault benefits for catastrophically injured persons as described in Arts (Litigation Guardian of) v. State Farm Insurance Co. (2008), 2008 25055 (ON SC), 91 O.R. (3d) 394, at paras. 14, 16:
The legislature’s definition of “catastrophic impairment” is intended to foster fairness for victims of motor vehicle collisions by ensuring that accident victims with most health needs have access to expanded medical and rehabilitation benefits. That definition is intended to be remedial and inclusive, not restrictive.
The SABS are remedial and constitute consumer protection legislation. As such, it is to be read in its entire context and in their ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. The goal of the legislation is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial.
[30] I must interpret and apply the applicable attendant care provisions in the 1996 SABS in this context.
[31] Because Kevin’s accident occurred on June 12, 1999, the 1996 SABS govern the benefits available to him. In 2010, O. Reg. 34/10 (the “2010 SABS”) replaced the 1996 SABS. The 2010 SABS apply to accidents occurring after August 31, 2010. However, s. 68.1 of the 2010 SABS provides that the 1996 SABS, in the form it read immediately before its revocation on July 3, 2010, continues to apply to accidents that occurred between November 1, 1996, and September 1, 2010.
[32] Section 16(2) of the 1996 SABS defines the purpose of ACBs. It provides as follows:
16(2) The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,
(a) services provided by an aide or attendant; or
(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital.
[33] Section 16(4) provides that the monthly amount payable as an ACB shall be determined in accordance with Form 1.
[34] Under the 1996 SABS, an insured does not need to receive or pay for attendant care to satisfy the “incurred” requirement in s. 16(2). It is sufficient that the services are reasonably necessary and that their amount can be determined with certainty: Morrissey v. Wawanesa Insurance Co., 2024 ONCA 602, 500 D.L.R. (4th) 143, at paras. 73-74; Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689, at paras. 46-52; and Pucci v. Wawanesa Mutual Insurance Co., 2020 ONCA 265, 2 C.C.L.I. (6th) 165 at paras. 35-36.
[35] In Morrissey, the Court of Appeal confirmed that the subsequent definition of “incurred” in s. 3(7)(e) of the 2010 SABS, which requires that goods or services be received or paid for, does not apply to accidents occurring before September 1, 2010. As a result, the fact that Kevin did not receive or pay for the level of attendant care he claims does not mean he did not need the services. It is not a basis to deny the ACBs if the services are reasonable and necessary.
[36] The Court of Appeal further held that an insurer cannot reject a retroactive claim for ACBs solely because the insured did not explain the delay in submitting a Form 1. An insured may submit successive Form 1s: Morrissey, at para. 44.
[37] To determine the appropriate level of ACBs, the LAT adjudicator was required to consider the nature and full extent of Kevin’s impairments, and the evidence of attendant care needs arising from those impairments and limitations, applying the governing legal principles. The adjudicator erred in law by not conducting this analysis and instead focusing on the care Kevin’s family was actually able to provide him. Respectfully, the adjudicator also failed to meaningfully grapple with a key issue: Kevin’s need for supervisory attendant care in light of the factual matrix and the uncontroverted evidence that he cannot respond appropriately in an emergency because of his cognitive deficits.
[38] Kevin’s ability to live independently and his goal of maximizing independence do not reasonably support the conclusion that he has no need for supervisory attendant care. Nor does the fact that he has lived without appropriate attendant care services to date negate his entitlement. His specific deficits, vulnerabilities and impairments drive the analysis.
[39] The Form 1 explanatory note under the “severe brain injury” category requires consideration of the insured’s ability to respond to an emergency. The evidentiary record confirms that Kevin lacks the insight to appropriately respond to an emergency. This, itself, establishes an attendant care need. The record before the adjudicator also confirmed that Kevin experienced a significant fall, which he did not remember, and consequently suffered a brain bleed. His family doctor confirmed this could have been catastrophic. Kevin’s mother also testified to three incidents where he did not get the help he needed. These incidents are far more serious than the minor safety incidents the LAT adjudicator characterized them as in his reasons.
[40] Dr. Harnadek, a neuropsychologist, assessed Kevin at the request of the Fund. In his report dated June 25, 2000, Dr. Harnadek confirmed that the motor vehicle accident caused Kevin to suffer diffuse anterior brain dysfunction and frontal lobe damage, resulting in a significant degree of neuropsychological impairment. He concluded that Kevin can be expected to fail to see appropriate alternatives when faced with problem situations. In his follow-up report dated August 10, 2001, Dr. Harnadek concluded that Kevin will have substantial difficulty managing alone in new situations. When faced with a problem that he has not encountered before, Kevin is likely to have difficulty determining how to solve it and will continue to need assistance with his living arrangements and finances into the future.
[41] Dr. Harnadek’s report dated June 25, 2000, was not provided to Ms. Maybee prior to her completion of the Form 1 dated August 15, 2000, which contributed to the reduction of ACBs to $120.40 per month. At the LAT hearing, Ms. Maybee testified that she did not know the severity of Kevin’s neurological impairments when she assessed his attendant care needs on August 15, 2000. She agreed that her information was incomplete. The Form 1 she completed allocated no amount for severe brain injuries.
[42] At the LAT hearing, Kevin’s family doctor, Dr. Italiano, testified that Kevin experienced several incidents where he sustained significant injury that he could not recall. Dr. Italiano testified that, during one fall, Kevin sustained an intracranial hemorrhage (brain bleed) that could have been catastrophic. He further testified that Kevin doesn’t have the insight to recognize the seriousness of hitting his head, appreciate the need for medical attention, or seek help in a case of injury.
[43] Kevin’s treating rehabilitation therapist, Linda Veldhuis, also raised safety concerns. She testified that Kevin is distractable around the stove and, because of his impaired sense of smell, may forget items left cooking. She described an incident that occurred while cooking with Kevin that caused her concern. She believes that Kevin would panic if there were a grease fire. In her view, if Kevin is going to use the stove, he requires some form of support.
[44] Dr. Fogarty, a neuropsychologist, completed a Clinical Neuropsychology Assessment Report dated March 10, 2018, following her assessment of Kevin. At the LAT hearing, she testified that Kevin was not functioning any differently from the time of her 2018 assessment. She confirmed that Kevin continues to have significant short-term memory difficulties and struggles in unpredictable, novel situations.
[45] Ms. Herzstein, an occupational therapist, gave evidence that Kevin requires 24/7 attendant care because of safety concerns that can suddenly arise given the unpredictable nature of his behavior and coping abilities. These concerns extend beyond potential falls. They include, for example, cooking and generally participating in the community. She testified that, according to the relevant guidelines, 24/7 care does not require someone to always be physically present with Kevin. Instead, someone must be available on-call so that, if Kevin needs assistance or decides to do something, someone can assist and mitigate safety risks.
[46] This is consistent with the evidence given by Ms. Yegendorf, another occupational therapist. She testified that the purpose of attendant care is to enable a person to lead a full and meaningful life and participate as independently as possible consistent, to the extent possible, with their pre-accident functioning. She confirmed that Kevin may not be able to manage unpredictable situations. Because of his diminished sense of smell, if he forgets to turn off the stove or if there is a fire, he may not detect it.
[47] She further testified that, under the Ontario Society of Occupational Therapists attendant care guidelines, when on-call check-ins cannot be scheduled because attendant care needs arise unpredictably, 24-hour care is necessary. The attendant does not need to be physically present as long as they are available and in close vicinity.
[48] Approving 24-hour attendance ensures that care is available if and when required. The insurer pays only for the actual services provided.
[49] The evidence before the LAT adjudicator clearly established that, given the ongoing effects of his brain injury, Kevin is at risk of significant injury if an emergency arises.
[50] Kevin lives on his own and strives to lead as full and meaningful a life as possible. The adjudicator did not appropriately consider the level of attendant care reasonably necessary to enable Kevin to achieve this goal, given the unpredictability of his ability to cope with and react to emergency situations, considering the applicable legal principles and relevant constraints. The rationale for the decision, that he copes on his own most of the time with a minimal level of attendant care, is not justified and untenable in light of the legal and factual constraints. This error led to an unreasonable outcome resulting in a low level of ACBs, namely the amount of $120.40 per month.
[51] Prior LAT decisions hold that an ACB is available where accident-related injuries render a person unable to appropriately respond to an emergency, making supervisory care necessary. This principle informs the assessment of the appropriate level of ACBs. The adjudicator departed from these authorities and did not justify his departure based on the evidence in this case, which renders the decision unreasonable: Vavilov, at paras. 129, 131.
[52] In N. (T.) v. Personal Insurance Co. of Canada, 2012 CarswellOnt 10008 (F.S.C.O.), at para. 96, the arbitrator held that a person who is alone during the day or evening may nonetheless require care and supervision. A person with a significant brain injury may respond to some emergencies on some occasions, but their unpredictability may render them unsafe and unable to respond appropriately to others.
[53] At paras. 95-96 and 106 of N. (T.), the arbitrator stated that 24-hour supervision does not require consistent one-on-one supervision. Instead, having a person available or on-call day and night constitutes a need for 24-hour per day supervision, regardless of whether someone is physically present at all times. Further, assistive devices such as smoke detectors, a lifeline button and cooking devices with automatic shutoffs did not address the fundamental problem of the applicant’s “unpredictability, impulsivity and impaired judgment”: N. (T.), at para. 106. Moreover, they do not replace the need for constant monitoring and assistance to ensure the applicant did not harm himself or be harmed by others.
[54] The same principles were applied in M. (S.) v. Intact Insurance Co., 2013 CarswellOnt 15845 (F.S.C.O.), at para. 57, where the arbitrator states:
Once it has been established that, due to cognitive or behavioural impairments (caused by an accident), an applicant can no longer appropriately respond to an emergency or otherwise needs custodial care due to changes in behaviour, it seems reasonable to me to start with the assumption that round-the-clock care will be required unless there is evidence to the contrary. By definition, one cannot predict when an emergency will arise. Fortunately, emergencies tend to occur relatively rarely but, if they could be predicted with precision, they would not be emergencies at all.
[55] In Vaillancourt v. The Guarantee Company of North America, 2023 9261 (ON LAT), the adjudicator confirmed that, in assessing the level of attendant care benefits, it is important that occupational therapists consider the person’s ability to respond to emergency situations.
[56] While the adjudicator raised the possibility of 24-hour attendant care, he did not meaningfully grapple with Kevin’s need for supervisory care arising from his inability to react to emergencies, or the reasonable and necessary attendant care required under s. 16(2) of the 1996 SABS.
VII. Conclusion
[57] I find that the LAT adjudicator erred in law by failing to apply the correct legal test under s. 16(2) of the 1996 SABS when determining the amount of reasonable and necessary ACBs. I would allow the appeal on that basis.
[58] In the alternative, I find the decision as a whole unreasonable because the adjudicator failed to consider the relevant factual circumstances, the evidence and the guidance provided by prior tribunal and legal authorities. Specifically, this failure relates to Kevin’s ability to respond to emergency situations and the resulting need for attendant care, particularly supervisory care, in determining the level of benefits owing under s. 16 of the 1996 SABS.
[59] For the above reasons I would set aside the LAT decision dated August 22, 2022, and order a new hearing before a different adjudicator. The Fund is to pay costs to Kevin in the agreed amount of $7,500.
___________________________ Firestone R.S.J.
I agree.
Lococo J.
I agree.
Shore J.
Date: March 24, 2026
2026 ONSC 1687
DIVISIONAL COURT FILE NO.: 50/22 and 50/22-JR
DATE: 20260324
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Lococo and Shore JJ.
BETWEEN:
Kevin Goovaerts, party under disability, by his Litigation Guardian, Cindy Malik
Appellant/Applicant
AND
Motor Vehicle Accident Claims Fund and Licence Appeal Tribunal
Respondents
REASONS FOR JUDGMENT
Firestone R.S.J.
Date: March 24, 2026