Executive Summary: Key Legal and Evidentiary Issues

• Jurisdictional competence of the Ontario Superior Court to approve Statutory Accident Benefits Schedule (SABS) settlements in light of the Licence Appeal Tribunal’s (LAT) exclusive authority under s. 280 of the Insurance Act.
• Interpretation of rule 7.08 of the Rules of Civil Procedure and whether it applies to settlements of SABS claims that, by statute, fall outside the court’s original jurisdiction.
• Tension between rule 7.08(4)(b)’s requirement for an affidavit from “the lawyer acting for the litigation guardian” and the reality that a licensed paralegal negotiated the settlement on behalf of a person under disability.
• Scope of paralegal authority under the Insurance Act and Law Society regime to negotiate SABS settlements, including for claimants under disability, and whether their involvement affects a settlement’s binding force.
• Practical need for finality of SABS settlements (especially for injured, vulnerable claimants) versus strict procedural safeguards mandated by the Rules for persons under disability.
• Effect of rule 1.02(1)(3), which excludes the operation of the Rules where another statute (here, the Insurance Act and LAT regime) provides a different procedure for resolving the claim.

Facts of the case

Abraham Borok was injured in a 2017 motor vehicle accident and pursued benefits under Ontario’s Statutory Accident Benefits Schedule (SABS), the no-fault automobile accident benefits scheme created under the Insurance Act. He suffers from a neurocognitive disability and therefore acts through his son, Tuvia Borok, who serves as litigation guardian and attorney under a power of attorney. A SABS settlement was negotiated on Mr. Borok’s behalf with his insurer, Primmum Insurance Company, not by a lawyer but by a licensed paralegal. The settlement, from all outward appearances, was reasonable and intended to bring closure to a claim that had been ongoing for eight years. Seeking to ensure that the settlement would be binding on a person under disability and to secure the finality desired by the insurer in exchange for a lump-sum payment, the parties turned to the Superior Court of Justice. They proceeded by way of an application under rule 7.08 of the Rules of Civil Procedure, which governs the approval of settlements involving minors and persons under disability. The application was initially brought in writing, as is common practice for such approvals. The motion record included an affidavit from a lawyer. However, that lawyer was retained only for the limited purpose of bringing the court-approval application and giving an opinion that the settlement was fair, reasonable, and in Mr. Borok’s best interests. The lawyer was not the professional who had actually acted for the litigation guardian in negotiating the underlying SABS settlement. The settlement negotiations themselves had been handled by a licensed paralegal, in accordance with the expanded paralegal scope of practice for SABS matters that has been in place since 2008. The record also included an affidavit from the paralegal.

Procedural posture and the affidavit problem

The procedural flashpoint arose from the wording of rule 7.08(4)(b), which requires, as part of the material filed on an approval motion or application, "an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement." The judge declined to read this requirement as satisfied by a lawyer who did not, in fact, act for the litigation guardian in negotiating the settlement but was only retained after the fact to support its approval. Because subrule 7.08(4) uses the mandatory term "shall," the court considered that it could not simply dispense with the requirement or treat the lawyer’s affidavit as a mere formality. In the judge’s view, the rule, unless amended, embodies a policy choice that the negotiation of legal claims by and for persons under disability in Superior Court proceedings is to be entrusted to lawyers, not other representatives. This policy aligns with subrule 15.01(1), which requires that parties under disability in court proceedings be represented by a lawyer. On a strict reading, the court could not approve the settlement under rule 7.08 without effectively directing the parties to re-negotiate the SABS settlement through a lawyer representing the litigation guardian, a process that could produce different terms and delay closure further.

Role and status of paralegals in SABS claims

The judge then stepped back from this immediate procedural difficulty to consider the broader legal framework governing SABS claims and paralegal practice. Since 2008, the interplay of s. 398(3) of the Insurance Act and s. 18 of Regulation 664 (as amended by O. Reg. 62/08) has exempted Law Society–licensed paralegals from the general prohibition on public adjusters acting for insureds in SABS matters. That change is what opened the door for paralegals to practice in the no-fault accident benefits sphere. Neither the Insurance Act regulations nor the Law Society’s by-laws impose a bar on paralegals representing claimants who require a substitute decision-maker because of disability, such as minors or adults who are mentally incapable. As a result, there would ordinarily be no reason, in the SABS context, to question the validity or binding nature of a settlement negotiated by a paralegal and executed by a litigation guardian acting under a proper power of attorney. The only reason this case intersected with rule 7.08 at all was because the parties sought court approval under that rule to bolster finality with respect to a person under disability and encountered a technical mismatch: the rule speaks in terms of a "lawyer acting for the litigation guardian," whereas the statutory and regulatory scheme for SABS expressly permits paralegals to carry out that role.

Jurisdictional analysis: rules of court versus LAT regime

The judge’s analysis ultimately turned not on paralegal competence but on the jurisdiction of the Superior Court and the scope of the Rules of Civil Procedure. Rule 7.08(1) states that no settlement of a claim by or against a person under disability—whether or not a proceeding has been commenced—is binding without a judge’s approval. Rule 7.08(2) similarly bars consent judgments involving a party under disability without judicial approval. However, these provisions must be read together with rule 1.02(1), which defines where the Rules apply. Under rule 1.02(1)(3), the Rules do not apply "if a statute provides for a different procedure" for the resolution of a claim. In the SABS context, s. 280 of the Insurance Act is decisive. It confers exclusive jurisdiction for SABS disputes on the Licence Appeal Tribunal (LAT), a statutory tribunal created under the Licence Appeal Tribunal Act, 1999 and subject to the Statutory Powers Procedure Act, with its own rules of practice. Section 280(3) expressly precludes court jurisdiction except on appeal or judicial review from the LAT. Appellate authority, including the Court of Appeal’s decision in Yang v. Co-operators General Insurance Company, has confirmed that the Superior Court has no original jurisdiction to hear SABS disputes. Any dispute over the validity or enforceability of a SABS settlement would likewise fall within the LAT’s exclusive remit. Against this statutory backdrop, the judge reasoned that the Superior Court cannot have jurisdiction to approve the settlement of a SABS claim as a way of binding a person under disability when it has no jurisdiction to adjudicate the SABS claim itself and render a judgment on it. Put differently, if the underlying dispute could not be brought to the Superior Court in the first place, the court lacks subject-matter competence to approve an agreement compromising that dispute.

Effect on rule 7.08 and SABS settlements

Applying rule 1.02(1)(3), the court concluded that the Insurance Act and the LAT regime amount to "a different procedure" that ousts the operation of the Rules with respect to SABS claims. As a result, rule 7.08 simply does not apply to the settlement of SABS disputes, whether or not the claimant is under disability. The apparent conundrum—paralegals being authorized to represent disabled SABS claimants while rule 7.08 demands a lawyer’s affidavit for court approval—was resolved by recognizing that the court should not be purporting to approve SABS settlements at all. That approval function belongs, if at all, within the statutory framework that governs SABS claims, not within the Superior Court’s civil procedure rules. The judge emphasized that this conclusion does not invalidate SABS settlements for want of court approval. To the contrary, in the SABS sphere, it is for the parties themselves to structure their releases and minutes of settlement under the Insurance Act framework and, where necessary, seek recourse through the LAT. The insurer’s stated concern in this case—obtaining finality in exchange for a lump-sum payment—is addressed by the court’s declaration that court approval under rule 7.08 is not a condition of validity or binding effect for SABS settlements involving persons under disability.

Outcome and successful party

On that jurisdictional footing, the application for approval of the settlement brought in the name of Abraham Borok by his litigation guardian was dismissed. The court held that it lacked subject-matter jurisdiction to entertain the application or to approve or disapprove the SABS settlement. The dismissal is expressly not to be read as a criticism or rejection of the settlement terms themselves; the judge noted that “all appearances point to a reasonable settlement” and that the parties, eight years after the accident, plainly needed closure. In procedural terms, however, the respondent insurer, Primmum Insurance Company, emerges as the successful party on the application, because the relief sought—judicial approval under rule 7.08—was denied. The decision establishes that SABS settlements, including those involving persons under disability and negotiated by paralegals, do not require Superior Court approval under rule 7.08 and that the validity and finality of such agreements are governed instead by the Insurance Act and the LAT regime. The reasons do not disclose any specific figure for the settlement amount, any quantified award of damages, or any order for costs, so the total monetary sum in favour of the successful party, whether by way of benefits, damages, or costs, cannot be determined from this decision.