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Insurance (Auto) - LAT Appeals (2). Borok v. Primmum Insurance Company [IMPORTANT]
In Borok v. Primmum Insurance Company (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of an application to approve "a proposed settlement for a party under disability pursuant to Rule 7.08 of the Rules of Civil Procedure" - here, where the settlement was wrt a SABS auto insurance claim.
Here the court reverses the application court's holding "that the Superior Court of Justice did not have jurisdiction to approve the proposed settlement because it involved the resolution of claims under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABS”), which was the exclusive jurisdiction of the Licence Appeal Tribunal (“LAT”)":a. The Superior Court has jurisdiction on the settlement of claims arising from SABS
[11] Rule 7.08(1) of the Rules provides that no settlement of a claim involving a person under disability is binding without the approval of a judge. The rule requires that a motion or application for approval must contain certain materials: an affidavit from the litigation guardian setting out their position in respect of the settlement; an affidavit from a lawyer setting out the lawyer’s position with respect to the proposed settlement; and the minutes of settlement. After reviewing the materials, the judge must determine, based on the evidence, whether the proposed settlement is in the best interests of the party under disability and ought to be approved.
[12] Here, the application judge misunderstood s. 280 [SS: 'Resolution of disputes'] of the Insurance Act. He found that the LAT had “exclusive jurisdiction” over all things related to SABS, including a proposed settlement. That is not what the section says:Resolution of disputes
280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
Application to Tribunal
(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).
Limit on court proceedings
(3) No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review. [13] Section 280 of the Insurance Act deals with the procedure to be followed when there is a dispute concerning an insured person’s entitlement to a benefit or the quantum of a benefit. When it was enacted in 2016, s. 280 removed the right to sue in the Superior Court for disputed entitlement to SABS and conferred on the LAT exclusive jurisdiction to determine these disputes: Insurance Act, s. 280(3); Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, 147 O.R. (3d) 65, at para. 36. Entitlement and quantum of a benefit are determined by the LAT following a specific procedure: Insurance Act, s. 280(2). An appeal from a decision from the LAT may be heard by the Divisional Court: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, s. 11.
[14] The application judge erred in law by concluding that s. 280 granted the LAT exclusive jurisdiction over all matters relating to SABS, including the approval of proposed settlements. Section 280 grants exclusive jurisdiction to the LAT over disputes arising from ongoing claims related to SABS, not to settlements: Yang v. Co-operators General Insurance Company, 2022 ONCA 178, 21 C.C.L.I (6th) 1, leave to appeal refused, [2022] S.C.C.A. No. 141; Stegenga, at paras. 21-22.
[15] Section 280 of the Insurance Act does not address proposed settlements of SABS claims for parties under disability. As this court has noted, if the jurisdiction of the Superior Court is to be taken away, the statute must do so in clear and unequivocal language: R.W. Tomlinson Limited v. Labourers' International Union of North America, Local 527, 2025 ONCA 861, 515 D.L.R. (4th) 680, at para. 45, leave to appeal granted, [2026] S.C.C.A. No. 30. It has not done so with respect to approval of settlements under r. 7.08.
[16] Furthermore, s. 9.1 of Automobile Insurance, R.R.O. 1990, Reg. 664 (the “Automobile Insurance regulation”) of the Insurance Act addresses specifically proposed settlements of SABS claims and sets out a highly regulated procedure when a settlement is entered into that requires the exchange of certain documents, the establishment of cooling-off periods, and what occurs if the claimant wishes to rescind a settlement. Section 9.1(6) states specifically that certain aspects of the procedure set out in the Automobile Insurance regulation do not apply to settlements that have been approved by a court pursuant to r. 7 of the Rules. This makes it clear that for the proposed settlement of a SABS claim that involves a party under disability the procedure is to file materials pursuant to r. 7 and seek approval from the Superior Court, in the same way that all proposed settlements involving parties under disability are done.
[17] Obtaining court approval of proposed settlements for parties under disability is mandatory in every civil case, no matter what type of case it is and that has always been the procedure. This court confirmed the necessity of securing court approval of any settlement that involves a party under disability in Wu Estate v. Zurich Insurance Co. (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 289, where it noted at para. 10:The requirement for court approval of settlements made on behalf of parties under disability is derived from the court’s parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves…to be exercised in the ‘best interest’ of the protected person…for his or her ‘benefit or welfare’.” [Citation omitted.] [18] This court recently reaffirmed the protective purpose of court approval under r. 7.08 in D.V. v. Cordocedo, 2026 ONCA 705, at para. 29.
[19] In the context of addressing the issue of sealing orders in r. 7.08 settlement approval motions, this court has specifically commented on the parens patriae jurisdiction of the court in r. 7.08 matters. As noted in S.E.C. v. M.P., 2023 ONCA 821, 97 R.F.L. (8th) 54, leave to appeal refused, [2024] S.C.C.A. No. 39, at para. 39:The common law rules mean that, as put by Salhany J.: “For centuries, judges of the Superior Court have exercised the parens patriae guardianship of the sovereign to ensure that the rights of infants and others legally disabled are protected”: Ruetz v. Morscher & Morscher (1996), 1996 CanLII 7985 (ON CTGD), 28 O.R. (3d) 545, (S.C.), at p. 549.
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The protective purpose of settlement approval for parties under disability has been repeatedly affirmed in this court’s jurisprudence.” [Citations partially omitted.] [20] The application judge misunderstood the purpose of r. 7 and the parens patriae jurisdiction of the court. This court has confirmed on numerous occasions that r. 7.08 provides that no proposed settlements on behalf of parties under disability are binding without a judge’s approval: see e.g. S.E.C., at para. 2. Furthermore, judges of the Superior Court have been and continue to approve proposed resolutions of the SABS claims of parties under disability pursuant to r. 7: see e.g. Kwok (Litigation guardian of) v. State Farm Mutual Automobile Insurance Co., 2016 ONSC 7339; Bellama v. Trafalgar Insurance, 2023 ONSC 172; Wang v. Safety Insurance Company, 2026 ONSC 3237; and Gidda v. Intact Insurance Company, 2023 ONSC 2799. Following the release of the decision under appeal, Firestone R.S.J. released a decision confirming that all settlements proposed on behalf of any party under disability, including the resolution of SABS claims, are subject to court approval: see Gomez v. The Personal Insurance Co., 2025 ONSC 7049, 52 C.C.L.I. (6th) 247. . Wilson v. Intact Insurance Company
In Wilson v. Intact Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court allowed an insured's joint appeal/JR, this from a LAT SABS ruling that denied them catastrophic impairments benefit.
The court considered LAT reconsiderations, here in a SABS context:[16] In this context it is useful to consider Rule 18.2 of the Licence Appeal Tribunal Rules (“LAT Rules”), which sets out the criteria that must be met before a decision can be set aside on reconsideration. They are: (a) the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness; (b) the Tribunal made an error of law or fact that would likely have changed the result; or (c) new evidence not previously available that would likely have affected the result. If any of the criteria are met, the Tribunal can confirm, vary, or cancel the decision or order, or order a rehearing on all or part of the matter.[7] . Plante v. Economical Insurance Company
In Plante v. Economical Insurance Company (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed a LAT SABS appeal, here reviewing some history of the recent LAT 'takeover' from the Superior Court:[45] In 2016, the LAT was delegated the exclusive jurisdiction to resolve Accident Benefits disputes between insurers and claimants. The statutory jurisdiction of the LAT to resolve disputes involving statutory accident benefits arises pursuant to s. 280 of the Insurance Act, which provides as follows:280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). [46] Section 280(4) of the Act makes clear that disputes under the SABS Schedule must be decided by the LAT. The Courts have no jurisdiction over these disputes except by way of an appeal on a question of law or by way of judicial review.
[47] The Court of Appeal in Stegenga v. Economical Mutual Insurance Company 2019 ONCA 615 (CanLII) noted that the purpose of assigning Accident Benefits disputes to the LAT was to, “[speed] up dispute resolution, in large part by providing an efficient, fair and accessible mechanism for resolving disputes” (para. 38).
[48] The LAT has broad remedial powers to address Accident Benefit disputes. As the court in Stegenga noted:Taken together, the words of s. 280(1) cover a wide array of disagreements connected in some way to the SABs to which an insured person was or is entitled. Viewed in the context of the purpose and history of the dispute resolution provisions, those words include disagreements about when the insurer’s obligation to provide SABs should be or should have been performed, and how the obligation to provide them should be or should have been performed. (Para. 45) [49] In executing its dispute resolution functions, the LAT “has all the powers that are necessary or expedient for carrying out its duties” (Licence Appeal Tribunal Act, 1999, s. 3(2)).
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