In Goovaerts (Litigation Guardian of) v. Motor Vehicle Accident Claims Fund, 2026 ONSC 1687 (CanLII), the Ontario Divisional Court overturned the LAT’s decision awarding Attendant Care Benefits of $120.40 per month to a catastrophically impaired person. The Court concluded that the Adjudicator erred at law by failing to consider the need for supervisory services when determining how much monthly attendant care was reasonably required. The Court further found the Tribunal’s decision was unreasonable, because it failed to consider evidence that the catastrophically injured person lacked the ability to respond in emergency situations, necessitating 24-hour supervisory care.
K.G. was injured on June 12, 1999 when he fell out of the back of a pick up truck and struck his head. He was 27 years old at the time. He sustained a permanent brain injury to his orbital frontal lobe that impaired his executive functioning. After the accident, he recovered to the point where he could manage most of his daily tasks independently. He lived on his own for periods of time. However, his brain injury left him with short-term memory deficits. He struggled to establish a daily routine and structure, and he lacked the ability to respond in unpredictable or potentially dangerous situations. His mother applied to the Motor Vehicle Accident Claims Fund (the Fund) for ACBs under the 1996 version of the SABS. At that time, the SABS legislation did not require the insured to receive or pay for the services in order to satisfy the “incurred” requirement under section 16(2). The proposed services only needed to be found reasonably necessary. Fund accepted that K.G. was catastrophically impaired, and initially accepted and paid him $5,575.31 per month for 24-hour attendant care services. From December 1999 to August 2020, the Fund conducted insurer examinations. The Fund’s occupational therapist completed the Form 1’s that assessed the monthly care needs initially at $3,815.30, then at $1,374.20 and finally at $120.40. In 2001, K.G. moved into his own apartment near his parents’ home. He later moved in with his parents in Orillia, and in 2024 he moved into his own home, where he continued to live alone.
On November 15, 2000, the Fund suspended the ACBs without notice to K.G., apparently intending to reassess the benefit at a later date. K.G.’s counsel filed a Form 1 of $5,575.31 retroactive to November 15, 2000. The Fund then agreed that it had erred in suspending the benefit, and funded $120.40 per month from November 2000 onward. K.G’s counsel filed a LAT application disputing the Fund’s ACB determination.
In the LAT proceeding, Vice-Chair Jeffrey Shapiro found the $120.40 monthly benefit was reasonable because “the evidence points to K.G. having generally received guidance from his family roughly corresponding to that rate.” The LAT awarded $120.40 per month in ACBs, plus two 6 month top-up amounts and interest. K.G.’s counsel filed a Notice of Appeal and Application for Judicial Review disputing the Adjudicator’s decision.
Writing for the Divisional Court panel, Regional Senior Justice Stephen Firestone found that the Tribunal was incorrect at law. To start, he noted that the attendant care provisions in the 1996 SABS legislation must be interpreted in context of the Ontario Court of Appeal’s 2019 decision in Tomec v. Economical Mutual Insurance Co. by recognizing the remedial and consumer protection purposes of the law. He found that the LAT had erred by focusing only on the care K.G.’s family had actually provided to him, instead of considering the full extent and nature of his impairments, and the corresponding supervisory care that he required.
The Court noted evidence before the LAT of K.G. falling after the accident, losing consciousness, and sustaining a brain bleed. There were three other incidents that the Court found were mischaracterized by the LAT as “relatively minor safety incidents.” There was also expert evidence before the LAT from two neuropsychologists, a rehabilitation therapist, and an occupational therapist demonstrating that K.G.’s inability to adapt in new situations raised significant safety concerns. The Court also noted prior FSCO and LAT decisions supporting the principle that persons with significant brain injuries living on their own may lack appropriate judgment to respond in unsafe situations, which requires 24 hour daily supervisory care that could be provided on an on-call basis. Finding both errors of law and fact, the Court set aside the decision and remanded the matter to a different adjudicator.
The Court’s decision rightly focuses on the LAT adjudicator’s error in preferring the insurer’s Form 1 that did not recommend 24-hour supervisory care. There was a multitude of evidence adduced by K.G. that supported the conclusion that such care was both reasonable and necessary, and ought to have been considered. The Court’s decision is also a cautionary one to insurers. Any decision by the insurer to suspend a benefit must be both in writing, and timely. As well, IE assessors must be provided with all relevant documentation in order to properly assess the full nature of an insured’s injuries and impairments. In this case, the Court noted that the Fund had failed to provide its own occupational therapist with a neuropsychological report obtained by the Fund; at the LAT hearing, the occupational therapist testified that she did not know of the severity of K.G’s neurological impairment when completing her own Form 1, which allocated no amount for severe brain injury.
Jonathan White is a member of the LAT practice group and the author of this blog. If you have a question about this decision or a similar file, please contact Jonathan at [email protected].
