Executive Summary: Key Legal and Evidentiary Issues

• Divisional Court applied the Vavilov reasonableness standard in reviewing the LAT’s catastrophic impairment and reconsideration decisions in favour of the insurer.
• Tribunal’s refusal to assign a WPI percentage to sleep impairment was upheld as a reasonable assessment of the evidentiary record and causation.
• Alleged confusion over which expert (psychiatrist vs neurologist) provided the 9% WPI sleep rating was resolved by the Tribunal’s reconsideration reasons and found not to affect the outcome.
• Court accepted the Tribunal’s treatment of conflicting and late-emerging sleep complaints, finding no reviewable error in rejecting accident-related sleep impairment.
• Argument that unrebutted neurology evidence (no opposing neurology report from insurer) should be accepted was rejected; the onus remained on the applicant to prove catastrophic impairment.
• Delay of a little over three months in releasing the Tribunal’s written decisions did not, on its own, render the decisions unreasonable or procedurally unfair.

Background and accident

The case arises from a motor vehicle collision on May 24, 2018 involving the applicant, Sandra (also referred to as Sonia) Dorcil. After the accident, she claimed statutory accident benefits from her automobile insurer, Wawanesa Insurance, under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, made under Ontario’s Insurance Act. Her central claim was that she had sustained a catastrophic impairment, which would entitle her to enhanced benefits under the policy and the SABS framework. Wawanesa determined that she did not meet the catastrophic impairment threshold and therefore was not entitled to access the increased level of benefits.

Policy framework and catastrophic impairment criteria

The dispute turned on the definition of “catastrophic impairment” under the SABS, in particular Criterion 7, which applies where an insured has impairments, or a combination of impairments, resulting in a whole person impairment (WPI) of 55% or more. The WPI assessment is conducted in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition (1993). The parties proceeded on the basis that if Ms. Dorcil’s overall WPI reached 55% or higher, she would be deemed catastrophically impaired under s. 3.1(1)7 of the SABS and could access the higher benefit limits available to catastrophically impaired claimants. The insurer accepted certain impairment ratings but disputed others, particularly those related to sleep disturbance, which became the focal point in the later Tribunal and court proceedings.

Proceedings before the Licence Appeal Tribunal

Ms. Dorcil applied to the Licence Appeal Tribunal (LAT) to resolve her dispute with Wawanesa. A seven-day hearing was held in January 2024 before two Tribunal adjudicators, Amar Mohammed and Jeremy Roberts. The hearing addressed numerous medical and functional issues, and the Tribunal was presented with extensive documentary and viva voce evidence, including expert reports from multiple disciplines. Two separate sets of catastrophic impairment reports were tendered on behalf of Ms. Dorcil. Each set included multiple assessors from various health care specialties and each had an “executive summary” by a physician (Dr. Getahun) summarizing the individual assessors’ findings, including the suggested WPI ratings for different impairments.

Tribunal’s merits decision on whole person impairment

On May 29, 2024, the LAT released its merits decision. It concluded that Ms. Dorcil’s accident-related impairments resulted in a 51% WPI, below the 55% threshold, and therefore she had not sustained a catastrophic impairment under Criterion 7. A central controversy was whether she had an accident-related sleep impairment that should be assigned a WPI rating. The applicant’s position at the hearing was that her sleep impairment warranted a 9% WPI rating, based on a neurology report from Dr. Gomez-Vargas. The Tribunal used language suggesting that the sleep impairment was “not rateable,” and on that basis no WPI percentage was attributed to that impairment. Because the sleep impairment was assigned no value, the overall WPI remained at 51%. Had the Tribunal accepted the proposed 9% rating, the combined WPI would have exceeded 55%, and she would have qualified as catastrophically impaired.

Reconsideration decision and clarification of sleep evidence

Ms. Dorcil sought reconsideration of the merits decision, arguing that the adjudicators had misunderstood or misapplied the evidence on sleep impairment, misidentified the source of the 9% WPI rating, and failed to properly engage with corroborative evidence from her family physician and daughter. On November 15, 2024, Adjudicator Mohammed released the reconsideration decision, dismissing her request. In that decision, the Tribunal clarified that when it had used the term “not rateable” in the merits decision, it did not mean that sleep impairment was incapable of being rated under the AMA Guides. Rather, it meant that the evidence advanced to support a sleep-related WPI in this particular case was “not persuasive” and was not accepted because of inconsistent reporting of sleep problems and a lack of clear causal evidence tying any sleep disorder to the accident. The reconsideration decision also addressed confusion over which expert provided the 9% WPI sleep rating. While the merits decision had referred to an executive summary by Dr. Getahun, the Tribunal confirmed that the 9% rating in fact originated from neurologist Dr. Gomez-Vargas. The adjudicator acknowledged that it would have been better practice to directly reference the originating assessor’s report rather than the executive summary, but emphasized that the Tribunal understood that a neurologist had provided the 9% rating and that this did not change the analysis of the weight and reliability of that evidence.

Tribunal’s treatment of the sleep impairment evidence

On reconsideration, the Tribunal explained in more detail why it rejected the 9% WPI rating attributed to sleep impairment. First, the applicant had not made any sleep complaints to Dr. Gomez-Vargas, which undermined the reliability of the rating. Second, his initial report did not provide any rating for sleep impairment at all. Only in a subsequent report did he assign a 9% WPI for sleep, and he did so without offering reasons or analysis to justify that figure. These features led the Tribunal to give little weight to the rating despite the fact that there was no competing neurology report filed by Wawanesa. The Tribunal stressed that the applicant bore the onus of establishing a catastrophic impairment and could not rely on perceived gaps in the insurer’s expert evidence to meet that burden. The Tribunal also addressed the family physician’s chart and the daughter’s lay testimony. It noted that the first sleep-related complaint in the family doctor’s records appeared two years after the accident, which conflicted with reports to another physician, Dr. Parekh, that sleep issues began immediately after the collision. As for the daughter’s statements, the Tribunal acknowledged that it had not referred to them in the merits decision but observed that a tribunal is not required to address every piece of evidence, and that adding more discussion of these sources would not have changed the outcome.

Judicial review to the Divisional Court

Unsatisfied with the LAT’s merits and reconsideration decisions, Ms. Dorcil applied to the Ontario Divisional Court for judicial review. She asked the Court to quash both decisions and remit the matter for a new hearing before different adjudicators. Her counsel argued both procedural and substantive unfairness, focusing particularly on delay and the Tribunal’s treatment of the sleep-impairment evidence. A preliminary point raised was the delay in releasing the Tribunal’s written reasons. Each decision—the merits decision and the reconsideration decision—was released more than three months after the respective hearings had concluded. The applicant submitted that this delay, by itself, increased the likelihood that the decisions were unreasonable or procedurally unfair. The Court held there was no authority supporting the proposition that a delay of that length in releasing written reasons, standing alone, rendered a decision unreasonable or procedurally unfair, and declined to find any legal defect on that basis.

Standard of review and scope of the Court’s role

The Divisional Court confirmed that the applicable standard of review on judicial review of LAT decisions is reasonableness, following the Supreme Court of Canada’s framework in Canada (Minister of Citizenship and Immigration) v. Vavilov. Under that standard, the applicant bore the burden of showing that the decisions lacked an internally coherent and rational chain of analysis or were not justified in light of the facts and the governing legal constraints. While some of the applicant’s submissions were framed as legal errors, the Court characterized most issues as questions of mixed fact and law tied to the Tribunal’s evaluation of medical and lay evidence. The Court reiterated that judicial review is not an opportunity for a party to re-argue the merits of the case but a limited supervisory remedy focused on whether the administrative decision maker’s reasons are transparent, intelligible and justified.

Court’s analysis of the sleep impairment and WPI dispute

The applicant advanced several arguments about the sleep-impairment evidence. She claimed the Tribunal erred in treating her sleep impairment as “not rateable”; misidentified the source of the 9% WPI rating by attributing it to the wrong expert; should have assigned some lower WPI percentage (for example, 4–5%) even if it rejected the full 9%; should have accepted the 9% rating because it was unrebutted by any neurology expert from Wawanesa; and failed to properly consider corroborative testimony from her physician and daughter. The Divisional Court systematically rejected each of these arguments. On the “not rateable” wording, the Court accepted the explanation in the reconsideration decision that the Tribunal did recognize that sleep impairments can be rated under the AMA Guides but found that, on the facts of this case, the evidence did not justify assigning any WPI percentage. The reconsideration reasons were found to have cured any ambiguity created by the original language. On the alleged misattribution of the 9% rating, the Court noted that the Tribunal had clarified that the rating came from neurologist Dr. Gomez-Vargas and that the earlier reference to the executive summary author did not suggest a misunderstanding of the true source or nature of the neurological opinion.

Causation, burden of proof, and treatment of corroborative evidence

The Court also rejected the applicant’s new argument that, if 9% was too high, the Tribunal should have nonetheless assigned a smaller WPI percentage for sleep impairment, such as 4–5%, which would have pushed her overall WPI past the 55% threshold. That theory had not been advanced at the original hearing and, in any event, minimized the applicant’s obligation to prove that any sleep problems were actually caused by the accident. The Tribunal had expressly based its refusal to assign any sleep-related WPI on the lack of clear causal evidence and inconsistencies in the reporting of sleep complaints over time. The Court held it was permissible and reasonable for the Tribunal, faced with such evidentiary gaps, to decline to assign any percentage at all. Regarding the absence of a rebuttal neurology report from Wawanesa, the Court endorsed the Tribunal’s position that the applicant still bore the onus of proof. The mere fact that the insurer did not call its own neurologist did not compel the Tribunal to accept the applicant’s expert where his opinion lacked documented complaints and reasoned analysis. As for the family physician’s notes and the daughter’s testimony, the Court accepted that an administrative decision maker is not obliged to canvass every piece of evidence in its reasons, particularly after a lengthy hearing with numerous issues and witnesses. The omissions identified by the applicant did not relate to central issues or arguments in a way that would undermine the overall reasonableness of the outcome.

Outcome and costs

After reviewing the record and the LAT’s reasons, the Divisional Court concluded that the Tribunal had identified the correct legal principles under the SABS and Vavilov and applied those principles to the evidence in a manner that resulted in reasons that were justified, transparent and intelligible. It held that the applicant had not met her burden of demonstrating that either the merits decision or the reconsideration decision was unreasonable. The application for judicial review was therefore dismissed. In terms of monetary consequences, the parties had agreed in advance on a fixed amount of costs if the application failed. Consistent with that agreement, the Court ordered Ms. Dorcil to pay costs to Wawanesa Insurance in the amount of $11,000, inclusive of HST and disbursements. As a result, the successful party in the proceeding was Wawanesa Insurance, which not only preserved the Tribunal’s finding that no catastrophic impairment existed and no enhanced benefits were payable, but also obtained a costs award of $11,000 in its favour.