Court criticizes LAT denial of injured man’s application based on volunteer jiu jitsu work

The Ontario Divisional Court has allowed an injured party’s appeal against a Licence Appeal Tribunal decision that denied his application seeking attendant care benefits, related relief, and a designation as catastrophically impaired under the Statutory Accident Benefits Schedule (SABS). 

The appellant in Chevalier-Wara v. Economical, 2026 ONSC 2982, previously worked as a carpenter and general construction labourer. He sustained a serious brain injury in an accident. 

Since then, the appellant has done a few odd jobs for his aunt and his friends. He took up jiu jitsu as a hobby and eventually became somewhat proficient. He began volunteering to teach jiu jitsu to children at the local club where he himself trained. 

For his application for benefits, the appellant called six witnesses: himself, his mother, his treating rehabilitation psychologist, an expert occupational therapist, a neuropsychologist, and a second neuropsychologist. 

In a decision dated Sept. 21, 2023, the tribunal’s adjudicator addressed the factual questions of: 

• whether the appellant’s traumatic brain injury rendered him unable to work or only able to work in a sheltered environment or a non-competitive workplace 
• whether he should be rated a level five on the GOS-E scale with lower moderate disability or a level six with upper moderate disability 

The tribunal ultimately denied the appellant’s application, which prompted this appeal. 

Tribunal ruling quashed

The Divisional Court of the Ontario Superior Court of Justice wholly set aside the tribunal’s decision and remitted the matter to another adjudicator for a fresh hearing on all issues. 

Given that this matter has long been outstanding and important to the appellant, the court directed the tribunal to prioritize the fresh hearing when scheduling. 

The court ordered the respondent insurance company to pay the appellant’s inclusive appeal costs of $5,000, as agreed. 

The court ruled that the tribunal’s decision and reasons: 

• were insufficient and largely conclusory 
• partly relied on factual findings that lacked an evidentiary basis or that required considerable explanation 
• made factual findings based on assumptions about the appellant’s abilities 
• failed to consider extensive expert evidence 
• failed to explain why it rejected the applicant’s claims and why it went against the overwhelming weight of medical evidence, which strongly supported a designation in category six, not close to the line between five and six 

Upon reviewing the evidence before the tribunal, the court found that the tribunal: 

• mentioned only the appellant’s evidence in its reasons regarding catastrophic impairment 
• found his evidence unreliable based on its unspecified inconsistencies with unparticularized “documented evidence” 
• accepted the opinion and completed GOS-E scoring of the respondent’s witness, an occupational therapist 
• failed to explain why it rejected the expert opinion and completed GOS-E scoring of the first neuropsychologist called by the appellant 
• failed to explain why it preferred the evidence of an occupational therapist, who was unqualified to give the opinion under the SABS, over the opinion of the first neuropsychologist, who was qualified to provide the opinion 
• failed to address the first neuropsychologist’s important evidence that the appellant’s brain injury affected his subjective understanding of what he could do and how well he was doing

Regarding the appellant’s activities involving jiu jitsu, the appellant’s experts explained why this evidence did not contradict their view that he could not work at a reduced capacity except in a sheltered or non-competitive workplace. 

However, the adjudicator found: “The role as a jiu jitsu instructor really shows how well the applicant is doing. Teaching children requires a great deal of patience, planning, attention to detail and oversight. In my view it shows someone with a great deal of control over their executive functions to be able to accomplish this.” 

The court said the tribunal did not explain why it found the medical evidence unpersuasive and apparently formed its own opinion on the extent of the appellant’s condition based on his testimony. 

The court pointed out that the appellant was helping out the jiu jitsu school on a voluntary basis, not running the children’s program by himself.