Executive Summary: Key Legal and Evidentiary Issues

• Interpretation and application of the “incurred expense” requirement under s. 3(7)(e) of the Statutory Accident Benefits Schedule (SABS).

• Whether non-professional family-provided attendant care qualifies for benefits without proof of economic loss.

• LAT’s jurisdiction to depart from clear statutory language based on fairness or public policy arguments.

• The scope of judicial review when no legal misinterpretation is alleged.

• Attempt to invoke consumer protection principles where no legislative ambiguity exists.

Facts and procedural background

Khalaf Hamad was injured in a motor vehicle accident on April 27, 2021, at the age of 67. He claimed significant physical, social, and psychological impairments that limited his ability to perform daily tasks. As a result, he applied to his insurer, Cooperators General Insurance Company, for monthly attendant care benefits of $2,992.55 under Ontario’s Statutory Accident Benefits Schedule (SABS), O. Reg. 34/10.

The Licence Appeal Tribunal (LAT) dismissed his claim on October 31, 2023, because his family members, who were providing attendant care, had not sustained “economic loss” as required by the SABS. Specifically, section 3(7)(e)(iii) limits reimbursement for attendant care provided by non-professionals to situations where the caregiver either works in the field or has suffered a financial loss in providing the care. Mr. Hamad brought an application before the Divisional Court seeking to quash that LAT decision, arguing that the requirement was unreasonable and contrary to the consumer protection purpose of the SABS. He also sought, in the alternative, a declaration that the incurred expense requirement should not apply.

Legal analysis and court findings

The Divisional Court held that there was no legal error in the LAT's decision. The LAT had applied the SABS as written, which unambiguously requires proof of economic loss for non-professional care to be reimbursed. The applicant explicitly admitted that he was not challenging the LAT’s interpretation of the law, but rather the legislative framework itself, claiming it resulted in an absurd and unfair outcome.

The Court emphasized that judicial review or appeal is not the proper forum for rewriting legislation. It rejected the applicant’s argument that the regulation conflicted with the consumer protection objectives of the SABS, finding that no ambiguity in the law existed and that the LAT had applied the correct legal test. The applicant's reliance on precedent, including Tomec v. Economical Mutual Insurance Company, was misplaced, as that case concerned statutory interpretation, while this case presented no such ambiguity.

Ruling and outcome

The Divisional Court unanimously dismissed the application for judicial review. It found that LAT had correctly and reasonably applied s. 3(7)(e) of the SABS, and the applicant's dissatisfaction with the law did not warrant court intervention. No constitutional challenge was brought, and the Court affirmed that it could not override clear legislative intent on the grounds of fairness.

As the successful party, Cooperators General Insurance Company was awarded $6,000 in costs. The LAT did not seek costs, and none were granted to it.