OCA says judge erred by finding that lawyer needed to negotiate for client under disability
In vehicular injury proceedings, the Ontario Court of Appeal saw no prohibition against a licensed paralegal negotiating the settlement of claims under the Statutory Accident Benefits Schedule, O Reg 34/10 (SABS), on behalf of a party under a disability.
On Feb. 17, 2017, the respondent in Borok v. Primmum Insurance Company, 2026 ONCA 748, sustained injury in a motor vehicle accident.
As the respondent was a person under disability under the Rules of Civil Procedure, RRO 1990, Reg 194, his son acted as his litigation guardian under a continuing power of attorney for property.
A licensed paralegal negotiated the resolution of the respondent’s SABS claims. The appellant insurance company agreed to the suggested settlement of $70,000. The parties signed the minutes of settlement on Sept. 19, 2022.
On Jan. 30, 2023, a notice of application to approve the proposed settlement was issued in the Ontario Superior Court of Justice. The initial application record included the paralegal’s affidavit.
In a supporting affidavit filed in June 2025, a solicitor said he considered the proposal fair and reasonable upon reviewing the medical evidence. The material filed for approval included proposed legal fees and the net amount payable to the respondent.
Justice R. Lee Akazaki rejected the application to approve the proposed settlement.
Without hearing submissions and on his own initiative, the application judge decided that the Superior Court lacked jurisdiction to approve the proposal as it involved the resolution of claims under the SABS, which fell within the Licence Appeal Tribunal’s exclusive jurisdiction.
On appeal, the insurer alleged that the application judge committed a legal error when analyzing the Superior Court’s jurisdiction. The respondent and the interveners agreed that the appeal court should set aside the decision and approve the proposal.
The Court of Appeal for Ontario allowed the appeal. The appeal court set aside the application judge’s decision, which it described as fundamentally flawed.
Under its authority under s. 134(1)(a) of Ontario’s Courts of Justice Act, 1990, the appeal court approved the proposed settlement of $70,000.
The Ontario Court of Appeal ruled that the Superior Court had jurisdiction over the settlement of SABS claims.
According to the appeal court, the application judge:
The Ontario Court of Appeal acknowledged that paralegals could not negotiate SABS settlements on behalf of catastrophically impaired clients. However, the appeal court pointed out that this prohibition did not apply here.
The appeal court held that paralegals licensed by the Law Society of Ontario could handle SABS claims for persons under disability.
The appeal court determined that the application judge erred in finding that r. 7 required a lawyer to negotiate a proposed settlement for a party under disability and to file an affidavit confirming this.
The appeal court explained that r. 7 required the filing of an affidavit of a solicitor representing the litigation guardian as a part of the material supporting an approval application.
According to the appeal court, this affidavit should include the lawyer’s opinion on whether the proposal served the best interests of a party under disability and the reasons for the opinion, which would help the court meaningfully assess the settlement’s reasonableness.
The Ontario Court of Appeal concluded that the application judge failed to inform the parties and the Public Guardian and Trustee that he was thinking about denying the approval application based on the Superior Court’s lack of jurisdiction.
“Instead, he convened an oral hearing because of concerns he had about a paralegal negotiating a proposed settlement of a claim for SABS on behalf of a party under disability, and with the lawyer swearing the affidavit being retained after the settlement negotiations,” stated the appeal court ruling.
According to the appeal court’s ruling dated Sept. 17, s. 32(1) of the SABS did not oblige the insurer to ask questions to determine whether the insured suffered injuries and intended to pursue benefits.
In a proceeding for damages based on personal injury and Charter claims, the appeal court issued a Sept. 9 decision finding no reasonable apprehension of bias or unfairness in the trial.
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