Jones-Whyte v. Intact Insurance Company
This page is a summary and commentary on a publicly available court decision, written for general informational and educational purposes only. It is not legal advice and does not create a lawyer-client relationship with Azimi Law, regardless of how specific or applicable it may seem to your situation.
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Do not rely on this page to make decisions about your own situation. Consult a licensed lawyer, or contact Azimi Law to discuss your situation directly.
The Facts
Jennifer Jones-Whyte claimed catastrophic impairment from Intact under Criterion 8 of the Schedule. By the end of the hearing, only two areas of function were in dispute, activities of daily living and concentration, persistence and pace, and the experts agreed she had some impairment in both. The question was whether it was moderate or marked. The Tribunal found she had not established a catastrophic impairment in January 2025 and refused reconsideration in May 2025. She appealed and applied for judicial review on three grounds: that the Tribunal's time limits on her witnesses were unfair; that the Tribunal let the insurer's psychiatrist comment on her psychiatrist's report but did not let her own psychiatrist respond to the insurer's reports, and admitted a late surveillance report; and that the Tribunal failed to compare her functioning before and after the accident.
What the Court Decided
A three-judge panel dismissed the appeal and the application in a short endorsement, with agreed costs of $5,000. On time limits, the court said tribunals have considerable room to manage hearings. The adjudicator had considered the case conference directions, the narrowing of the issues, the reduced witness list and counsel's submissions, applied the limits strictly but extended time for the experts as the hearing went on, and heard from everyone. The court contrasted another Divisional Court case in which a long hearing was cut drastically without a change in the case. On the experts, the court noted the insurer's psychiatrist had read and relied on the claimant's psychiatrist's report, while the claimant's psychiatrist had not reviewed the later reports and no response report had been filed even though there was time. The ruling was therefore consistent with the Tribunal's rules on exchanging reports. The surveillance, delivered roughly four weeks ahead rather than at the 75-day mark, was handled fairly, since it could be put to the claimant but not to either side's experts. On the legal test, the court found no authority that a pre-accident versus post-accident comparison is mandatory, pointing to its own earlier decision in Wilson v. Intact, where the absence of a baseline did not make the ruling unreasonable, and found the remaining arguments amounted to a request to reweigh the evidence.
Most catastrophic impairment hearings turn on expert evidence and on how much time each side gets. This decision shows how far the Divisional Court will defer to the Tribunal's case management and how important it is to deliver reply expert reports on time. It also confirms that arguments about how evidence was weighed rarely succeed on appeal.
“It is not necessary for reasons for decision to mention every piece of evidence and how it was addressed.”— Jones-Whyte v. Intact Insurance Company, 2026 ONSC 1927, para. 16
Does This Affect You?
- ✓You have a Licence Appeal Tribunal hearing coming up on catastrophic impairment under the mental and behavioural criterion.
- ✓The Tribunal has cut the time you asked for to call witnesses or examine experts.
- ✓The insurer has served surveillance, or an expert has responded to your expert's report, close to the hearing date.
Key Takeaways
- If your expert may need to respond to the insurer's reports, deliver an addendum report in time, because the Tribunal's rules on reports can be enforced against you.
- The Tribunal is entitled to set strict time limits, and a challenge is more likely to succeed only where the limits prevent you from calling or testing key evidence.
- Courts will not reweigh the evidence on a moderate versus marked finding, so the hearing is usually the main opportunity to win that point.