Executive Summary: Key Legal and Evidentiary Issues

• Applicant challenged a Licence Appeal Tribunal decision denying multiple statutory accident benefits.

• Tribunal found the claim for income replacement benefits barred due to missed statutory deadline.

• Catastrophic impairment claim was rejected due to insufficient medical evidence and expert credibility issues.

• Tribunal declined to accept high attendant care costs, citing inconsistencies in evidence and claimant's capabilities.

• Allegations of procedural unfairness were dismissed, with tribunal rules properly applied to late witnesses and disclosures.

• Judicial review was dismissed as the tribunal's findings were reasonable, justified, and procedurally fair.

Background and procedural history

Neila Paesano sought judicial review of a decision by the Licence Appeal Tribunal (LAT) dismissing her claim for accident benefits under Ontario’s Statutory Accident Benefits Schedule (SABS). The claim arose from a motor vehicle accident on September 1, 2018. After being denied several benefits by Coseco Insurance Company, Ms. Paesano brought her dispute to the LAT. Following an eight-day hearing, the tribunal rejected her claims for income replacement benefits, catastrophic impairment designation, medical and rehabilitation expenses, and awarded only limited attendant care benefits. A reconsideration request was dismissed as untimely. Rather than filing an appeal on questions of law, Ms. Paesano initiated an application for judicial review.

Legal issues raised on review

The application raised five principal issues: whether the LAT erred in barring the claim for income replacement benefits; whether it wrongly assessed catastrophic impairment under criteria 6, 7, and 8; whether it under-assessed her entitlement to attendant care benefits; whether it denied her rehabilitation benefits; and whether procedural fairness was violated during the hearing process.

Coseco and the LAT raised preliminary objections, arguing that many issues should have been brought by appeal—not judicial review—and that the applicant had missed applicable deadlines. While the court acknowledged the procedural missteps, it exercised discretion to hear the application due to minimal delay and lack of prejudice.

Tribunal’s findings and judicial review outcome

On the key issue of income replacement benefits (IRBs), the LAT found Ms. Paesano ineligible because she failed to apply within the statutory 104-week period. The court agreed, emphasizing that the SABS requires a claimant to demonstrate a substantial inability to work within that period to qualify for extended benefits. The court also found the doctrine of discoverability inapplicable and rejected arguments that the insurer had misled the applicant.

Regarding the catastrophic impairment claim, the tribunal rejected expert assessments that assigned her over 55% whole person impairment, citing methodological flaws, lack of supporting evidence, and inconsistencies. It also declined to find marked psychological impairments under criteria 7 and 8, noting conflicting testimony and that the applicant remained functional at work for several years post-accident. The court upheld these findings as reasonable, given the detailed and coherent reasoning provided by the tribunal.

On attendant care benefits, the tribunal awarded $905.34 per month, rejecting claims for $6,000 based on exaggerated supervisory care needs and inconsistencies in the applicant’s reported functionality. The court deferred to the tribunal’s expertise in weighing medical evidence and found its approach justified.

The applicant also alleged procedural unfairness due to being denied the ability to call a late witness and file a late disclosure request. The court held that the tribunal acted within its rules and discretion, balancing fairness with efficiency. It ruled there was no breach of natural justice.

Conclusion

The Divisional Court dismissed the judicial review application, finding the LAT’s decision reasonable and procedurally fair. It awarded $7,500 in costs to Coseco Insurance Company. The case underscores the high deference courts give to specialized administrative tribunals and the importance of timely procedural compliance by claimants.