CITATION: Sorrentino v. Certas Home and Auto Insurance Company, 2026 ONSC 1578
DIVISIONAL COURT FILE NO.: 343/25
DATE: 20260316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L.Corbett, Emery and Faieta JJ.
BETWEEN:
ERSILIA SORRENTINO
Peter Esfandiari and Jane Conte, for the
Appellant
Appellant
- and -
CERTAS HOME AND AUTO
Bruce Chambers, for the Respondent
INSURANCE COMPANY
Respondent
HEARD: September 23, 2025 in Toronto
reasons for decision
D.L. Corbett J. (Concurring)
[1] I agree with my colleague that the LAT’s decision was incorrect in law and unreasonable and that Certas should be ordered to pay the claimed benefit immediately so that Ms Sorrentino might yet obtain some small measure of justice.
[2] Ms Sorrentino sought to move to her daughter’s house because she felt she could no longer live alone. This conclusion was more than reasonable – it was sensible and, on the record, overdue. A person in Ms Sorrentino’s position should not wait until after she has suffered numerous injuries or is forced to move to a care facility on very short notice by deterioration in her situation. Late-life planning is to be encouraged and not forestalled by the process before the LAT or this court.
[3] The LAT’s legal analysis on this issue was a bit muddy, a consequence, it appears, of the way in which the issue was argued before the LAT. The correct legal analysis is somewhat opaque, in light of the applicable terms of the SABS and the apparently thin jurisprudence[^1] in this area, but the bottom-line result, in this case, was clear, whichever analysis was adopted.
[4] Subsections 16(1) and 16(3)(i) of the SABS provide that Ms Sorrentino was entitled to “(1) … rehabilitation benefits … for all reasonable and necessary expenses incurred [for]…
(3)(i) Home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home….
[5] These provisions create two categories of “home” for a claimant: an “existing home” and a “new home”. Where a claimant is seeking “the purchase of a new home” then the claimant must show that it is “more reasonable” to purchase that home than to “renovate… her existing home.”
[6] The first analytical task for the LAT was to determine whether the claims were in respect to an “existing home” or a “new home”. The condominium was, clearly, an “existing home”. Was the daughter’s home also an “existing home” or was it a “new home”? The LAT did not answer this question.
[7] In my view, the better argument is that the daughter’s home was an “existing home” within the meaning of s. 16(3)(i) of the SABS. It already existed, and Ms Sorrentino was not seeking to “purchase” it. The jurisprudence on this question is thin, as I have said, but it indicates that an “existing home” may be the home a claimant currently occupies or a home into which they intend to move, and in particular, an existing home owned by a relative, into which a claimant intends to move, may be an “existing home” within the meaning of the SABS, so long as the claimant is not seeking benefits to “purchase” the home.
[8] If this is the correct analysis, then Ms Sorrentino was seeking benefits to renovate an “existing home”. There is no hierarchy of “existing homes” in the SABS: Ms Sorrentino should have been entitled to decide to move in with her family, and the “more reasonable” test in s. 16(3)(i) did not apply, though, of course, Ms Sorrentino did bear the onus of showing that her proposed renovations to her daughter’s home were “reasonable and necessary” to enable her to live there. She did not, however, have to show that her decision to move there was “reasonable and necessary”.
[9] If it was concluded that the daughter’s home was not an “existing home” within the meaning of the SABS, then it was a “new home”. Those are the only two categories of home described in s. 16(3)(i). If it was a “new home”, then the onus lay on Ms Sorentino to establish that it was “more reasonable” for her to move into her daughter’s home than to stay living alone in her condominium. If that is the applicable test, then the “more reasonable” analysis – in respect to the decision to move – is not a financial test. It is an assessment of the personal decision about where to live – and a claimant does not need to show that the move is “necessary”. To hold otherwise would have the effect of forcing claimants to wait until they are in extremis in their living arrangements: nothing in the SABS points to such a harsh result.
[10] And even if this analysis were thought to be incorrect – even if it was concluded that Ms Sorrentino had to show that the move to her daughter’s home was “reasonable and necessary” and “more reasonable” than staying alone in her condominium, on the record below, Ms Sorrentino obviously met this test. She had had multiple falls living at home on her own. The attendant support available to her was insufficient to keep her safe in her condominium.
[11] Ms Sorrentino’s daughter’s decision, to welcome her mother into her home where her mother could live out her days surrounded by family, who could provide her with 24-hour care, love and support, was generous and loving. I defy any sensible person to explain why it was not “more reasonable” for Ms Sorrentino to accept this generous, loving offer from her daughter, than to continue to live alone, in peril and in fear for her own safety, and ultimately, as events turned out, to her great personal cost.
[12] Hindsight is, of course, an inappropriate tool to assess an adjudicative decision. But what happened in the aftermath of the LAT’s decision was surely foreseeable. Ms Sorrentino stayed in her condominium, with insufficient support, she fell yet again and suffered serious injury. The hospital at which she was treated would not release Ms Sorrentino to return to her home, and so Ms Sorrentino was forced to move to a care facility, on no notice, where she was residing at the time of the hearing before us.
[13] These conclusions were obvious to this panel. Of more concern to us, after having heard oral argument, was the question of remedy. What could be done for Ms Sorrentino now?
[14] Subsection 134(1) of the Courts of Justice Act, RSO 1990, c. C.23 (the “CJA”) provides:
Unless otherwise provided, a court to which an appeal is taken may,
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;
(b) order a new trial;
(c) make any other order or decision that is considered just.
[15] Thus, on appeal to this court from the LAT, this court may make any order that could have been made by the LAT, and in addition, may make “any other order… that is considered just.” A new trial should not be ordered unless some substantial wrong or miscarriage of justice has occurred (CJA, ss. 134(6) and (7)). The goal, as reflected in these provisions, is that there be but one trial or hearing and one appeal from that decision, after which the matter will be concluded. As is illustrated in this case, justice delayed can be justice denied: remitting matters for a second trial or hearing undercuts this principle and is to be avoided unless a new trial or hearing is necessary to avoid “substantial wrong or miscarriage of justice”.[^2]
[16] By the time this matter came to this court, Ms Sorrentino was 92 years old and in a care facility. In our view, it appeared that the insurer would avoid paying for the costs of renovations to accommodate Ms Sorrentino in her daughter’s home by the effluxion of time. If payment were not made immediately, the insurer might succeed in its position not because it was meritorious in law or in fact, but because Ms Sorrentino passed away before the slowly grinding wheels of justice completed their course.
[17] The SABS are consumer protection legislation. As a result of the LAT decision – wrong on the law and unreasonable on the facts – Ms Sorrentino’s interests were not protected. We ordered immediate payment to reduce the risk that payment of benefits would reach Ms Sorrentino too late to be of any use to her. The order for immediate payment was an “order that is just” within the meaning of CJA, s. 134(1)(c).
[18] I appreciate the large gulf between the amount proposed by the insurer to renovate the condominium (about $22,000) and the amount proposed by Ms Sorrentino to renovate her daughter’s home (about $388,000). This seemed to prey on the mind of the LAT. It should not have.
[19] Ms Sorrentino had previously proposed renovations to her condominium to a projected cost of $364,000, but ultimately chose not to contest renovation costs to her condominium because she had concluded that suitable renovations could not be made (because of condominium regulations) and because she had chosen to move in with her daughter (as was her right to do). The insurer, for its part, put “all its eggs” in the “condominium basket” and did not challenge the proposed renovation costs to the daughter’s home. Live by the sword; die by the sword: not having put any evidence before the LAT that the renovation costs for the daughter’s home were, in and of themselves, unreasonable or unnecessary, the insurer is not hard done by having to pay them.
[20] Finally, I would not find it necessary to address the procedural fairness issues in light of my conclusion on other issues. However, if it was felt that an analysis was required as to whether moving to the daughter’s home was “more reasonable” than staying in the condominium, I would not be persuaded by the LAT’s reasons for refusing to permit Ms Sorrentino to call her caregiver to give evidence.
“D.L. Corbett J.”
Emery J.
[21] The appellant Ersilia Sorrentino appeals the Orders of the License Appeal Tribunal (the “LAT”) made by adjudicator Thorn on December 9, 2024 (the “Decision”) and her reconsideration of the Decision on April 2, 2025. Those Orders considered the legal obligation of the respondent insurer, Certas Home and Auto Insurance (“Certas”), to pay for home modifications to accommodate her needs after a motor vehicle accident.
[22] Ms. Sorrentino appeals the Order denying her an increase from the $22,825.53 approved by Certas for modifications to her condominium style home to $388,082.53 claimed under s. 16 of the Statutory Accident Benefits Schedule (the “SABS”) to modify her daughter’s home where she would receive 24-hour care. Ms. Sorrentino seeks an Order setting aside that dismissal and substituting an award for the difference of $365,257, or alternatively an Order remitting the matter back to the LAT for a new hearing before a different adjudicator.
[23] On the day of the hearing, we allowed the appeal for reasons to follow. We ordered the respondent insurer to pay Ms. Sorrentino $365,257 forthwith as we found the LAT had erred at law when it denied Ms. Sorrentino the costs of her life plan in evidence at the hearing. We made this payment Order with immediate effect in view of the needs and circumstances of Ms. Sorrentino. These are those reasons.
Background to appeal
[24] A large part of the context on this appeal is the fact that Ms. Sorrentino, born on August 11, 1933 is currently 92 years of age.
[25] On April 26, 2016, Ms. Sorrentino suffered a catastrophic injury in an automobile accident. Her injuries included several fractures requiring multiple orthopaedic surgeries. She suffers from headaches, leg pain, hip pain, neck pain, anxiety, depression, cognitive issues and a high degree of kinesiophobia as a result. She was 83 years old and was living independently in her condominium apartment at the time of the accident. Certas was the insurer responsible for paying Ms. Sorrentino accident benefits under the relevant motor vehicle insurance policy.
[26] Certas deemed Ms. Sorrentino’s injuries from this accident to be catastrophic. The catastrophic designation is not in dispute and entitles Ms. Sorrentino to claim enhanced funding for medical and rehabilitation expenses under the SABS up to $1 million.
[27] Ms. Sorrentino filed an OCF-18 claim for Certas to pay for home modifications to accommodate her injuries at her condominium. John Groe, a Canadian Specialist in Accessible Home Design, conducted an in-home assessment on November 12, 2021, for modifications to make to the condominium for Ms. Sorrentino to live there. He issued a Home Accessibility Report dated March 12, 2022, in which he made recommendations that the cost to make those modifications to Ms. Sorrentino’s condominium would be $316,393.18 including HST. These recommendations were supported by Emilia Radovini in an Occupational Therapy Assessment. The OCF-18 was submitted on June 3, 2022 in the amount of $316,393.18 based on Mr. Groe’s Report, plus $200 for preparing the form.
[28] Ms. Sorrentino withdrew the OCF-18 for the funding to make modifications to the condominium in October 2022 after discussions with Certas. By that time, Ms. Sorrentino had determined the necessary modifications recommended by Mr. Groe could not be made because of structural issues with the condominium, and because they would require the approval of the property manager or the board of the condominium corporation.
[29] On October 12, 2022, Mr. Groe conducted an Alternate Living Assessment for Ms. Sorrentino to reside at her daughter’s home so that the daughter could provide her with 24/7 care. In his Report dated February 11, 2023 (the “Disputed Plan”), Mr. Groe made recommendations to modify the daughter’s home to accommodate Ms. Sorrentino at a cost of $388,082.53 including HST.
[30] These recommendations were again supported by Emilia Radovini.
[31] On July 4, 2023, Ronny P. Wiskin conducted an In-Home Assessment on behalf of Certas. This assessment was conducted on proposed modifications to Ms. Sorrentino’s condominium as the home in which she would live, and in relation to the OCF-18 filed in 2021. Mr. Wiskin issued his Report from the In-Home Assessment on August 1, 2023 in which he recommended modifications totaling $22,825.53 to the condominium. This assessment was completed in consultation with Ms. Kim Teggelove, an occupational therapist.
[32] The modifications to the condominium recommended by Mr. Wiskin were approved by Certas at that cost. Certas has never arranged for a home assessment of the daughter’s home in response to the Disputed Plan. No reports were ever submitted to contradict the alternate living modifications to the daughter’s home proposed by Mr. Groe.
[33] Ms. Sorrentino submitted an application to the LAT on August 29, 2023, in which she disputed several matters approved by Certas. One of those matters was their denial of her entitlement of the additional $365,257 to fund the modifications to her daughter’s home under the Disputed Plan.
[34] On February 4, 2024, Mr. Groe filed a Response Report to the In-Home Assessment prepared by Mr. Wiskin with the input of Ms. Teggelove. In his Response Report, Mr. Groe submitted that continuing to reside at the condominium was not a viable option for Ms. Sorrentino. He repeated his opinion that the modifications to her daughter’s home to accommodate Ms. Sorrentino would be appropriate.
[35] The LAT heard the matter over four days in September 2024. During that hearing, Mr. Wiskin acknowledged that many of the proposed modifications to the condominium would require the approval of the property management firm. He also acknowledged that the initial OCF-18 for the condominium had been withdrawn and replaced with a home accessibility plan for Ms. Sorrentino at her daughter’s home.
[36] Mr. Wiskin’s report dated August 1, 2023 was the only report filed by Certas that addressed the first OCF-18 relating to the condominium. It did not respond to the Disputed Plan that related to proposed modifications to the daughter’s home. The respondent did not tender any assessment that specifically addressed the reasonableness, feasibility or cost-effectiveness of the modifications proposed in the Disputed Plan. Furthermore, Certas did not file evidence from either an occupational therapist or a home modification expert about accommodating Ms. Sorrentino’s ability to live alone at the condominium.
[37] Ms. Sorrentino attempted to call her personal support worker, Valentyna Akopian, as a witness at the hearing. Adjudicator Thorn denied that request, explaining that Ms. Akopian was not listed on the final witness list or in the case conference report. She ruled that her evidence would have been redundant in any event since Ms. Sorrentino’s daughter had already testified and expert evidence had been called.
[38] The LAT released the Decision on December 9, 2024, that denied the application to Order Certas pay the accident benefits to Ms. Sorrentino in the amount recommended in the Disputed Plan to make modifications to her daughter’s home under s. 16(1) of the SABS. Ms. Sorrentino requested the LAT reconsider the Decision. On April 2, 2025, Adjudicator Thorn dismissed the request, stating that she was “satisfied that [she] did not err in law or fact, such that [she] would have reached a different outcome.” The Adjudicator also dismissed Ms. Sorrentino’s claim for Certas to pay any amount over the guideline award for the in-home assessment by Mr. Groe.
The decisions below
The Decision
[39] In the Decision, Adjudicator Thorn held that Ms. Sorrentino was not entitled to home modifications to her daughter’s home, any amount over the guideline amount for the in-home assessment, an award or interest.
[40] Prior to considering whether it was reasonable and necessary for Ms. Sorrentino to relocate to her daughter’s home, Adjudicator Thorn determined that she must first decide whether Ms. Sorrentino’s current residence was unsafe because of her injuries. She found that Ms. Sorrentino had failed to demonstrate that her current residence cannot be modified to ensure her safety, because she did not provide a list of approved or disapproved modifications by someone in authority at her building. This list could have come from the owner/landlord or property management company. Since Ms. Sorrentino failed to establish that her current residence could not be modified, Adjudicator Thorn determined that she did not need to consider whether it was reasonable or necessary for Ms. Sorrentino to move in with her daughter.
[41] Adjudicator Thorn also considered whether Ms. Sorrentino was entitled to claim the balance of the home modification assessment of her daughter’s home conducted by Mr. Groe on September 13, 2021. The Adjudicator determined that Ms. Sorrentino was not entitled to any payment past the $2,000 maximum payment for assessments pursuant to s. 25(5)(a) of the Schedule, since she did not provide any submissions about the increased cost of the treatment plan.
Reconsideration Decision:
[42] Ms. Sorrentino made a request that the LAT reconsider the Decision. Adjudicator Thorn upheld the merits decision and denied the request. On reconsideration, Ms. Sorrentino raised the issue regarding the Adjudicator’s decision to deny Ms. Sorrentino the ability to call Ms. Akopian as a witness. As her personal support worker, Ms. Akopian had relevant and probative evidence to give. Adjudicator Thorn reviewed the reasons why she originally denied Ms. Akopian from testifying at the hearing and affirmed those reasons. Adjudicator Thorn’s reasons included the fact that Ms. Akopian was not listed on the appellant’s witness list. She also stated that Ms. Akopian did not assist in the preparation of the Alternative Living Assessment of the daughter’s home. Given a review of the experts who were scheduled to testify and counsel’s submission that Ms. Sorentino’s daughter was better suited to speak about her mother’s mobility, the Adjudicator declined to allow Ms. Akopian to testify.
[43] The Adjudicator also addressed the issue of the s. 44 in-home living assessment of the daughter’s home that the LAT did not consider. In the reasons on reconsideration, the Adjudicator held that Ms. Sorrentino had failed to establish that she had committed a material breach of procedural fairness.
[44] In the final analysis, the Adjudicator concluded that she did not commit an error of law. While Mr. Groe spoke with someone from the management company about making modifications to a condominium, Adjudicator Thorn was not convinced that he spoke to a person in authority, and she maintained the view that Ms. Sorrentino failed to provide a breakdown from management as to which modifications were approved and which were disregarded at that site.
Analysis
Standard of Review
[45] The right to appeal an Order of this nature is limited by statute. Under s. 11(6) of the Licence Appeal Tribunal Act, an appeal from a decision of the LAT relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 is to the Divisional Court, but only on a question of law.
[46] The standard of review on an appeal limited to a question of law is one of correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37, and Madore v. Intact Insurance Co., 2023 ONSC 11 (Div. Ct.), at para. 23.
[47] Questions of law are generally questions about whether the correct legal test was applied, or an approach prescribed by statute was followed. In contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 43; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[48] This court had an opportunity to further expand on what constitutes a question of law on a statutory appeal in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), aff’d 2022 ONCA 446, reversed on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. In that case, Kristjanson J. of this court explained that is an error of law for the tribunal to disregard evidence when making findings of fact in the following way, at para. 28:
[28] On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).
[49] The appeal turns on whether the LAT applied the correct law in respect of each issue, or otherwise made an error of law when applying the relevant test. This would include ensuring that the LAT provided the parties with procedural fairness when the application was heard.
Issues for determination
[50] In this appeal, the issues for determination are:
(a) Did Adjudicator Thorn make an error of law when she failed to consider the s. 44 assessment on the daughter’s home for Ms. Sorrentino to live there, or to deny Ms. Sorrentino the ability to call her personal support worker as a witness as a breach of procedural fairness?
(b) Did the LAT make an error of law in its interpretation of the term “existing home” in s. 16 of the SABS?
Procedural Fairness
[51] The Supreme Court established in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para. 27 that procedural fairness in a proceeding is a question of law. The characteristics of procedural fairness are non-exhaustive. Those characteristics that serve as the hallmarks of procedural fairness were identified by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27 as follows:
(a) The nature of the decision being made, and the process followed in making it;
(b) The nature of the statutory scheme and the terms of the statute pursuant to which that body operates;
(c) The importance of the decision to the individual affected;
(d) The legitimate expectations of the person challenging the decision; and
(e) The choices of procedure made by the deciding body itself.
[52] The procedural fairness provided during a hearing has also been held to be a question of law. In Plante v. Economical, Insurance Company, 2024 ONSC 7171, the Divisional Court allowed an appeal of a decision of the LAT where the LAT did not provide the applicant with a meaningful opportunity to present her case. The shortcomings found by the court included the refusal to allow key witnesses to testify, curtailing the length of the hearing and relying on untested expert evidence.
1. Was the denial of a witness a breach of procedural fairness at the LAT hearing?
[53] Ms. Sorrentino raised the Adjudicator’s denial of her ability to call Ms. Akopian as a question of law in her request for reconsideration. She intended to call Ms. Akopian to testify about her limitations and care needs at the hearing. She submits that this denial was a breach of procedural fairness that amounted to an error of law.
[54] The Adjudicator held in the reconsideration decision that she exercised her discretion properly under the LAT Rules and section 25.0.1 of the Statutory Powers Procedures Act, RSO 1990, c. S.22 (the “SPPA”). Rule 9.3 of the Licence Appeal Tribunal Rules of Practice (the “LAT Rules”) states that “If a party fails to comply with any Rule, direction or order with respect to the exchange or production of witness lists, the party may not call a witness who is not included on a witness list filed in compliance with the Rules, direction or order to give evidence without the permission of the Tribunal.” This rule operates in conjunction with s. 25.0.1 of the SPPA that provides a tribunal with the power to determine its own procedures and practices, and to establish rules for that purpose.
[55] Rule 9.3 is one of those rules. Under Rule 9.3, the Adjudicator Thorn denied Ms. Sorrentino the right to call her personal care worker as a witness because of her non-compliance with listing Ms. Akopian as a witness. The Adjudicator held that allowing this witness to testify in addition to Ms. Sorrentino, her daughter, Mr. Groe and Ms. Radovini would be redundant. Adjudicator Thorn explained that the witnesses she had permitted Ms. Sorrentino to call to give evidence were sufficient to give an efficient, proportionate and timely resolution of the case on the merits.
[56] The Adjudicator was exercising her authority as the officer of the tribunal hearing the evidence on the application. She was within her jurisdiction to exercise her discretion within the boundaries of s. 25.0.1 of the SPPA and s. 3.1 of the LAT Rules to require strict compliance with the rule regarding witnesses. We find there was no breach of procedural fairness when she made her ruling about Ms. Akopian.
2. Did the refusal of the LAT to consider a s. 44 assessment for the daughter’s home?
[57] The Adjudicator ruled that Ms. Sorrentino must first prove that it was not possible to modify the condominium as her existing home before she would consider the Disputed Plan to modify the daughters home at the recommended cost. Until that was proven, Certas was not bound to consider the daughter’s home as an “existing home”, and therefore not bound to consider that Certas had not conducted a s. 44 assessment of the daughter’s home. On making these findings, the Adjudicator held that Certas did not fail to consider the Disputed Plan for modifications to the daughter’s house reasonable and necessary.
[58] The approach taken by the Adjudicator that turns on a question of law that is prescribed by s. 16(1) and the operation of s. 16(3)(i) of the SABS. Sections 16(1) and (3)(i) read as follows:
Rehabilitation benefits
- (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. O. Reg. 34/10, s. 16 (1).
(3) The activities and measures referred to in subsection (1) are,
(i) Home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home
[59] At para. 18 of the Decision, Adjudicator Thorn made this statement:
“Before considering the proposition that it is reasonable and necessary for the applicant to move to the daughter’s house, I must determine that due to the injuries sustained in the accident, her current residence cannot be modified enough to ensure her safety and that it is reasonable to review an alternative location.”
[60] The SABS contains no such two-step threshold, and no authority was referenced by Certas in support of it. The authorities hold that “existing home” has been given a broad and flexible interpretation, often encompassing a residence the insured intends to occupy. See Vanden Berg-Rosentha v. Motor Vehicle Accident Claims Fund, FSCO A07-000417. This determination is fact-specific and purposeful. Arbitrator Rogers expressly rejected any “threshold” approach, holding that an “existing home… is not [a] threshold for entitlement to home modifications”. The two-step approach taken by Adjudicator Thorn was not prescribed in the statutory scheme. Under the Baker principles, it amounted to a breach of procedural fairness.
[61] The decision of the Adjudicator to require that Ms. Sorrentino prove what modifications to her condominium home could be made and those that could not for structural or management approval reasons confuses the intent behind s. 16(1) of the SABS. The objective is to provide accident benefits for home modifications to neutralize the effects of the accident. It was an error of law to require Ms. Sorrentino to prove that the modifications under the OCF-18 could not be made to the condominium before considering the new substantive modifications under the Disputed Plan.
[62] Certas ultimately conceded at the appeal that Ms. Sorrentino required 24 hour care after the accident. Its position on the application before the LAT was somewhat different as the Adjudicator found that Ms. Sorrentino did not prove she could not live independently as a threshold issue, and that Ms. Sorrentino was required to show that moving to the daughter’s home was necessary. The Adjudicator ruled that this was a threshold for Ms. Sorrentino to cross before the SABS required the LAT to consider evidence that the modifications to the daughter’s house were reasonable and necessary to accommodate Ms. Sorrentino. Holding Ms. Sorrentino to this threshold requirement was a bridge too far and constituted an error on a question of law.
Living with daughter in an existing home
[63] Counsel for Ms. Sorrentino submits that the Adjudicator committed an error of law when it treated the condominium as her “existing home” by default and required an “infeasibility threshold” before considering the daughter’s home as an alternate existing home for modifications.
[64] In Vanden Berg-Rosentha, Arbitrator Rogers emphasized the flexibility the law provides for finding what constitutes an “existing home” in the following way:
“Arbitrator Blackman's approach recognizes that, without specific restriction"existing home" may be given a broad and liberal interpretation that allows an insured the flexibility to [choose] where to live. His approach also recognizes that specific restrictions cannot be ignored. I adopt that approach.”
[65] Director David Evans held in J.S. v Guarantee Company of North America, 2012 ONFSCDRS 14 that:
“The Arbitrator accepted the proposition in Cole that “existing home” could mean an insured’s home or homes at any point in time, its meaning depending on the particular facts of the case.”
[66] These cases illustrate that the term “existing home” is not limited in law to the insured’s residence at the time of the accident, nor contingent on proving the infeasibility of another residential location that fits the circumstances of the injured party. The interpretation of the term “existing home” by the LAT in this case was unduly narrow and inconsistent with prevailing authority from specialized tribunals in previous cases. The adjudicator treated the condominium as the “existing home” based solely on Ms. Sorrentino’s residence at the time of the accident and ignored the practical realities facing her after the accident. These included structural barriers, the need for 24-hour care, and her settled intention to live with her daughter to receive that care.
[67] The purpose behind s.16(1) is to accommodate an applicant to a level that reduces or eliminates the effects of any disability caused by the accident. They are also intended to be sufficient to reintegrate the person into her family. The objective of these provisions is to require the insurer to provide payment for home modifications and devices to accommodate the needs of the insured person in an existing home. This obligation is not tied to any residence or property, but only subject to the qualitative conditions that the expenses for home modifications be reasonable and necessary.
[68] It has been held consistently that the SABS must be interpreted generously as legislation that is remedial in nature. This broad view is reinforced by the observation of the Supreme Court as early as the case of Smith v. Co-operators, 2002 SCC 30 that one of the main objectives of the SABS is to provide consumer protection. The view that the SABS should be considered as consumer legislation and applicable generally for the benefit of the consumer is as prevalent now as it was when Smith v. Cooperators was decided in 2002. In keeping with the direction from the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, the definition of terms under the SABS must be interpreted in a manner consistent with the substantive objective of reducing economic distress and hardship to a victim of a motor vehicle accident.
[69] The Adjudicator’s definition of “existing home” under s. 16 of the SABS was an error of law as the Adjudicator applied the wrong principles to make the Decision.
Conclusion
[70] For these reasons, the appeal is allowed. In view of Ms. Sorrentino’s age and circumstances, as well as the absence of any reasons of the LAT about the amount claimed, we made the Order under s. 134(1)(a) of the Courts of Justice Act RSO 1990, c C.43 that the LAT ought to have made instead of sending it back for a new hearing. Accordingly, Certas was ordered to pay $365,257 to Ms. Sorrentino forthwith after the appeal. Costs were also awarded to Ms. Sorrentino as the successful appellant in the amount of $10,000, all inclusive.
“Emery J.”
I agree: “Faieta J.”
Released: March 16, 2026
CITATION: Sorrentino v. Certas Home and Auto Insurance Company, 2026 ONSC 1578
DIVISIONAL COURT FILE NO.: 343/25
DATE: 20260316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L.Corbett, Emery, and Faieta JJ.
BETWEEN:
ERSILIA SORRENTINO
Appellant
- and -
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
REASONS FOR DECISION
[^1]: Ms Sorrentino cited two cases to us in her factum on this issue, neither of which were binding on the LAT: J.S. v. Guarantee Company of North America, 2012 ONFSCDRS 14; Vanden Berg-Rosentha and MVACF (FSCO 000417). Certas did not cite any authority to us in its factum on these issues.
[^2]: The situation is different when this court is hearing an application for judicial review: : as the Supreme Court of Canada has stated, where a matter is in the exclusive jurisdiction of an administrative tribunal, with no appeal, review courts should presumptively remit matters to the administrative tribunal for a fresh hearing, rather than substituting the court’s views on how the matter should be decided: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paras. 82, 139-142.