Simon's Megalomaniacal Legal Resources

Insurance - Treatment and Assessment Plan [OCF-18]

. Sorrentino v. Certas Home and Auto Insurance Company

In Sorrentino v. Certas Home and Auto Insurance Company (Ont Div Ct, 2026) the Ontario Divisional Court allowed an insured's LAT SABS appeal, this involving "the legal obligation of the respondent insurer, Certas Home and Auto Insurance (“Certas”), to pay for home modifications to accommodate her needs after a motor vehicle accident" [OCF-18 'Treatment and Assessment Plan'].

Here the court considers this OCF-18 ['Treatment and Assessment Plan'] issue and corrects the tribunal's treatment of it:

[22] Ms. Sorrentino appeals the Order denying her an increase from the $22,825.53 approved by Certas for modifications to her condominium style home to $388,082.53 claimed under s. 16 of the Statutory Accident Benefits Schedule (the “SABS”) to modify her daughter’s home where she would receive 24-hour care. Ms. Sorrentino seeks an Order setting aside that dismissal and substituting an award for the difference of $365,257, or alternatively an Order remitting the matter back to the LAT for a new hearing before a different adjudicator.

[23] On the day of the hearing, we allowed the appeal for reasons to follow. We ordered the respondent insurer to pay Ms. Sorrentino $365,257 forthwith as we found the LAT had erred at law when it denied Ms. Sorrentino the costs of her life plan in evidence at the hearing. We made this payment Order with immediate effect in view of the needs and circumstances of Ms. Sorrentino. These are those reasons.

....


2. Did the refusal of the LAT to consider a s. 44 assessment for the daughter’s home?

[57] The Adjudicator ruled that Ms. Sorrentino must first prove that it was not possible to modify the condominium as her existing home before she would consider the Disputed Plan to modify the daughters home at the recommended cost. Until that was proven, Certas was not bound to consider the daughter’s home as an “existing home”, and therefore not bound to consider that Certas had not conducted a s. 44 assessment of the daughter’s home. On making these findings, the Adjudicator held that Certas did not fail to consider the Disputed Plan for modifications to the daughter’s house reasonable and necessary.

[58] The approach taken by the Adjudicator that turns on a question of law that is prescribed by s. 16(1) and the operation of s. 16(3)(i) of the SABS. Sections 16(1) and (3)(i) read as follows:

Rehabilitation benefits

16. (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. O. Reg. 34/10, s. 16 (1).

(3) The activities and measures referred to in subsection (1) are,

...

(i) Home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home

[59] At para. 18 of the Decision, Adjudicator Thorn made this statement:

“Before considering the proposition that it is reasonable and necessary for the applicant to move to the daughter’s house, I must determine that due to the injuries sustained in the accident, her current residence cannot be modified enough to ensure her safety and that it is reasonable to review an alternative location.”

[60] The SABS contains no such two-step threshold, and no authority was referenced by Certas in support of it. The authorities hold that “existing home” has been given a broad and flexible interpretation, often encompassing a residence the insured intends to occupy. See Vanden Berg-Rosentha v. Motor Vehicle Accident Claims Fund, FSCO A07-000417. This determination is fact-specific and purposeful. Arbitrator Rogers expressly rejected any “threshold” approach, holding that an “existing home… is not [a] threshold for entitlement to home modifications”. The two-step approach taken by Adjudicator Thorn was not prescribed in the statutory scheme. Under the Baker principles, it amounted to a breach of procedural fairness.

[61] The decision of the Adjudicator to require that Ms. Sorrentino prove what modifications to her condominium home could be made and those that could not for structural or management approval reasons confuses the intent behind s. 16(1) of the SABS. The objective is to provide accident benefits for home modifications to neutralize the effects of the accident. It was an error of law to require Ms. Sorrentino to prove that the modifications under the OCF-18 could not be made to the condominium before considering the new substantive modifications under the Disputed Plan.

[62] Certas ultimately conceded at the appeal that Ms. Sorrentino required 24 hour care after the accident. Its position on the application before the LAT was somewhat different as the Adjudicator found that Ms. Sorrentino did not prove she could not live independently as a threshold issue, and that Ms. Sorrentino was required to show that moving to the daughter’s home was necessary. The Adjudicator ruled that this was a threshold for Ms. Sorrentino to cross before the SABS required the LAT to consider evidence that the modifications to the daughter’s house were reasonable and necessary to accommodate Ms. Sorrentino. Holding Ms. Sorrentino to this threshold requirement was a bridge too far and constituted an error on a question of law.

Living with daughter in an existing home

[63] Counsel for Ms. Sorrentino submits that the Adjudicator committed an error of law when it treated the condominium as her “existing home” by default and required an “infeasibility threshold” before considering the daughter’s home as an alternate existing home for modifications.

[64] In Vanden Berg-Rosentha, Arbitrator Rogers emphasized the flexibility the law provides for finding what constitutes an “existing home” in the following way:

“Arbitrator Blackman's approach recognizes that, without specific restriction, "existing home" may be given a broad and liberal interpretation that allows an insured the flexibility to [choose] where to live. His approach also recognizes that specific restrictions cannot be ignored. I adopt that approach.”

[65] Director David Evans held in J.S. v Guarantee Company of North America, 2012 ONFSCDRS 14 that:

“The Arbitrator accepted the proposition in Cole that “existing home” could mean an insured’s home or homes at any point in time, its meaning depending on the particular facts of the case.”

[66] These cases illustrate that the term “existing home” is not limited in law to the insured’s residence at the time of the accident, nor contingent on proving the infeasibility of another residential location that fits the circumstances of the injured party. The interpretation of the term “existing home” by the LAT in this case was unduly narrow and inconsistent with prevailing authority from specialized tribunals in previous cases. The adjudicator treated the condominium as the “existing home” based solely on Ms. Sorrentino’s residence at the time of the accident and ignored the practical realities facing her after the accident. These included structural barriers, the need for 24-hour care, and her settled intention to live with her daughter to receive that care.

[67] The purpose behind s.16(1) is to accommodate an applicant to a level that reduces or eliminates the effects of any disability caused by the accident. They are also intended to be sufficient to reintegrate the person into her family. The objective of these provisions is to require the insurer to provide payment for home modifications and devices to accommodate the needs of the insured person in an existing home. This obligation is not tied to any residence or property, but only subject to the qualitative conditions that the expenses for home modifications be reasonable and necessary.

[68] It has been held consistently that the SABS must be interpreted generously as legislation that is remedial in nature. This broad view is reinforced by the observation of the Supreme Court as early as the case of Smith v. Co-operators, 2002 SCC 30 that one of the main objectives of the SABS is to provide consumer protection. The view that the SABS should be considered as consumer legislation and applicable generally for the benefit of the consumer is as prevalent now as it was when Smith v. Cooperators was decided in 2002. In keeping with the direction from the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, the definition of terms under the SABS must be interpreted in a manner consistent with the substantive objective of reducing economic distress and hardship to a victim of a motor vehicle accident.

[69] The Adjudicator’s definition of “existing home” under s. 16 of the SABS was an error of law as the Adjudicator applied the wrong principles to make the Decision.