Executive Summary: Key Legal and Evidentiary Issues

• Kyle Chevalier-Wara appealed a License Appeal Tribunal decision denying his application for catastrophic impairment designation under the Statutory Accident Benefits Schedule.
• Central to the dispute was whether the appellant's traumatic brain injury rendered him unable to work, or only able to work in a sheltered or non-competitive environment under the GOS-E scale.
• Attendant care benefits of $1,671.62 per month from April 19, 2019 were also at issue, having been denied by the Tribunal.
• The Divisional Court found the Tribunal's reasons to be inadequate, largely conclusory, and unsupported by the evidentiary record in several critical respects.
• Factual findings made by the Tribunal — particularly regarding the appellant's volunteer jiu jitsu activity — were found to have no evidentiary basis whatsoever.
• Expert neuropsychological evidence, including the completed GOS-E scoring by Dr. Mendella, was implicitly rejected without explanation or adequate analysis.

Facts of the case

Kyle Chevalier-Wara sustained a traumatic brain injury (TBI) in an accident. Prior to the accident, he had been working as a carpenter and general construction labourer. Following the accident, he performed limited odd jobs for friends and family — including removing panelling at his aunt's house and assisting friends with minor work around their homes — and took up jiu jitsu as a hobby. On a volunteer basis, he reported helping out with white belt members at his local club, where he himself was training. He applied to the License Appeal Tribunal ("LAT") for a catastrophic impairment designation under the Statutory Accident Benefits Schedule ("SABS"), as well as for attendant care benefits ("ACBs") of $1,671.62 per month from April 19, 2019, and interest on any overdue payments. Adjudicator Fogarty of the LAT denied all claims in a decision dated September 21, 2023.

Policy terms and classification criteria at issue

The key classification issue turned on the Glasgow Outcome Scale – Extended ("GOS-E"). Under the SABS, a rating of level 5 (lower moderate disability) would entitle the appellant to a catastrophic impairment designation, while a rating of level 6 (upper moderate disability) would not. The narrow factual question before the Tribunal was whether the appellant's TBI left him unable to work, or only able to work in a reduced capacity — specifically, in a sheltered or non-competitive workplace. The Tribunal set out the GOS-E guideline descriptions of "work," "reduced work capacity," and "non-competitive work" at length, spanning several pages of its decision, before making its findings.

Court's reasoning and analysis

The Divisional Court found the Tribunal's reasons to be plainly inadequate. The Tribunal's entire analysis of four days of testimony and extensive documentary evidence — including multiple expert reports — was contained in a single paragraph. That paragraph made several factual findings without any evidentiary support or explanation, including that the appellant had been engaging in periodic work similar to his pre-accident employment since approximately February 2018, that at least one such role was paid a "very good" wage and was open to the public, and that the appellant's testimony was unreliable because it ran contrary to unspecified "documented evidence."

The Court noted that the Tribunal called six witnesses on behalf of the appellant: the appellant himself, his mother, his treating rehabilitation psychologist Dr. Pelletier, expert occupational therapist Ms. Wilson, neuropsychologist Dr. Mendella, and a second neuropsychologist Dr. Sweet. Of these, only the appellant's own evidence was referenced in the Tribunal's reasons on catastrophic impairment, and solely to discount its reliability based on unparticularized inconsistencies. The Tribunal implicitly rejected Dr. Mendella's expert GOS-E scoring without explanation and appeared to accept the GOS-E scoring of the respondent's witness, Ms. Evans — an occupational therapist — despite her not being qualified to provide that opinion under the SABS.

The Court further found that the Tribunal's treatment of the appellant's volunteer jiu jitsu activity, in its reasons for denying ACBs, was unsupported by any evidence. The Tribunal concluded that the appellant's role showed high-performing executive functioning — including planning lessons, managing time, paying attention to detail, and being entrusted with children's safety — none of which had any evidentiary basis. Dr. Pelletier, a neuropsychologist with 35 years of experience who had treated the appellant for five years, testified that jiu jitsu was an activity that could be pursued even by individuals with the highest level of TBI, and that it revealed nothing meaningful about the presence or absence of executive deficits. Dr. Pelletier also testified that, to his knowledge, the appellant was not teaching in any strictly literal sense, and that within the club's structure, blue belts work with white belts under the supervision of higher-ranked members. The Tribunal failed to engage with this evidence entirely. The Court found that the Tribunal appeared to have come to its own opinion based on the appellant's self-reported account — the very account the expert evidence identified as likely to be unreliable due to the nature of TBI.

Ruling and overall outcome

The Ontario Divisional Court allowed the appeal, set aside the LAT decision in its entirety, and remitted the matter for a fresh hearing before a different Adjudicator. Given how long the matter had been outstanding and its importance to the appellant, the Court directed the LAT to give the fresh hearing scheduling priority. Kyle Chevalier-Wara was the successful party on appeal. The Court ordered the respondent, Economical Mutual Insurance Co., to pay costs of the appeal to the appellant in the agreed amount of $5,000.00, inclusive, payable within 30 days, with no costs ordered for or against the LAT.