The Divisional Court’s recent decision in Sorrentino v. Certas Home and Auto Insurance Company marks a significant development in the interpretation of the availability of home modification benefits under Ontario’s Statutory Accident Benefits Schedule (“SABS”). In allowing the appeal and ordering Certas to pay substantial renovation funds to a family member’s home, the Court adopted a broad and flexible approach to the meaning of “existing home” under s. 16 of the SABS. In doing so, the Court signalled a shift toward a more Applicant-focused analysis grounded in the remedial purpose of the SABS. The decision is particularly notable given the Applicant’s circumstances as a 92-year-old catastrophically impaired individual living alone in increasingly unsafe conditions.
Facts
Ms. Sorrentino was catastrophically injured in a motor vehicle accident on April 26, 2016. At the time, she was 83 years old , and had been living by herself in her condominium. By the time of the hearing, she was 92, and her ability to live safely on her own had significantly deteriorated. She experienced multiple falls and lacked sufficient attendant care, leaving her in a hazardous and unsafe living situation. She initially explored modifying her condominium, with expert evidence estimating costs in excess of $300,000. However, she quickly abandoned the plan due to structural limitations and uncertainty surrounding condominium corporation approval. Instead, Ms. Sorrentino proposed moving into her daughter’s home, where she could receive 24-hour care. She submitted a treatment plan seeking approximately $388,000 for renovations, supported by expert assessments confirming the suitability of the home. In response, Certas approved only $22,825.53 for limited modifications to the condominium . Certas did not obtain any assessment , or present any evidence addressing the proposed renovations to the daughter’s home.
LAT Decision
The dispute proceeded before the LAT , where the adjudicator focused the analysis on whether Ms. Sorrentino had established that her condominium could not be modified to accommodate her needs. Emphasizing the absence of definitive evidence from the condominium corporation regarding which renovations could be permitted, the adjudicator concluded that Ms. Sorrentino had failed to meet this threshold. As a result, the LAT declined to consider the proposed move to the daughter’s home , and denied the claim for funding the alternate living arrangement.
Divisional Court
The Divisional Court allowed Ms. Sorrentino’s appeal and found that the LAT had committed errors of law in its interpretation and application of the SABS. While the Court confirmed that the applicable standard of review was correctness on questions of law, its analysis focused primarily on whether the LAT applied the proper legal framework. At the core of the Court’s reasoning was its rejection of the LAT’s “threshold” approach: the LAT had required Ms. Sorrentino to first establish that her condominium could not be modified before considering whether the proposed move to her daughter’s home was reasonable and necessary. The Divisional Court held that no such requirement exists under s. 16 of the SABS and by imposing this additional step, the LAT had effectively created a barrier to entitlement that is not grounded in the SABS.
The Court further held that the LAT adopted a narrow interpretation of the term “existing home.” Rather than limiting the analysis to the claimant’s residence at the time of the accident, the Court emphasized that the term should be interpreted broadly and flexibly, consistent with the remedial and consumer protection purpose of the SABS as well as prior decisions from FSCO including Vanden Berg-Rosentha and MVACF (FSCO 000417) and J.S. v. Guarantee Company of North America 2012 ONFSCDRS 14. As such, the Court confirmed that an “existing home” can include a residence the claimant intends to move into, including the home of a family member, provided that the claimant is not looking to purchase that home.
The Court also rejected the idea that there is any hierarchy between potential living arrangements. In their view, Ms. Sorrentino was entitled to decide where she would live, including moving into her daughter’s home to receive 24-hour family-based care. The only remaining question was whether the proposed modifications to the daughter’s home were “reasonable and necessary” to accommodate her needs, not whether she had to show that her decision to relocate itself was necessary. The court held that to “hold otherwise would have the effect of forcing claimants to wait until they are in extremis in their living arrangements: nothing in the SABS points to such a harsh result.”
Even if the LAT’s approach had been correct, the Court noted that the evidence overwhelmingly supported Ms. Sorrentino’s position. She had experienced multiple falls, required 24-hour care, and faced significant safety risks while living alone. Due to these circumstances, the Court found it difficult to see how continuing to live in the condominium could be considered a more reasonable option than moving into her daughter’s home. The Court also addressed the evidentiary record, noting that Certas had not presented any evidence challenging the cost or reasonableness of the proposed modifications to the daughter’s home. Having chosen to focus its position on the condominium, Certas could not then rely on the absence of competing evidence to undermine the claimant’s plan.
Interestingly, the Divisional Court ordered Certas to pay the outstanding amount of $365,257 forthwith, rather than remitting the matter back to the LAT. Given Ms. Sorrentino’s age and circumstances, the Court emphasized that further delay risked rendering any award meaningless. Relying on its authority under subsection 134(1) of the Courts of Justice Act to make any order that is “just,” the Court concluded that immediate payment was the only appropriate remedy.
Conclusion
While the Divisional Court’s decision reflects a compassionate and purposive application of the SABS, it leaves unresolved questions for insurers. Requiring Certas to immediately pay over $365,000 without clear guidance on how those funds are to be used or what happens if the claimant’s circumstances change, raises concerns about payments being used for purposes other than their intended use. It remains to be seen how future cases will address the practical realities of these types of awards, particularly where the purpose of payment of the benefit – to modify a living space to accommodate the needs of a catastrophically impaired insured – may never be carried out.
Noah Waisglass is the author of this blog and an articling student at the firm. If you have a question about this decision or a similar file, please contact Noah at [email protected].
