Ontario Court of Appeal: Paralegal SABS Disability Settlement Jurisdiction Clarified

• The Ontario Court of Appeal confirmed that licensed paralegals can negotiate Statutory Accident Benefits Schedule (SABS) claims for persons under disability.
• The Superior Court of Justice has jurisdiction to approve SABS settlements, contrary to a lower court's previous ruling.
• In Borok v. Primmum Insurance Company, 2026 ONCA 748, a $70,000 SABS settlement negotiated by a paralegal was approved by the appellate court.
• The court clarified that while paralegals cannot negotiate for catastrophically impaired clients, this restriction did not apply to the case at hand.
• A solicitor's affidavit, attesting to the settlement's fairness and the client's best interests, is a crucial requirement for court approval under Rule 7.

On February 17, 2017, an individual sustained injuries in a motor vehicle accident, subsequently becoming the respondent in the case of Borok v. Primmum Insurance Company, 2026 ONCA 748. As this individual was classified as a person under disability according to the Rules of Civil Procedure, RRO 1990, Reg 194, his son assumed the role of his litigation guardian, acting under a continuing power of attorney for property. A licensed paralegal undertook the negotiation of the respondent's claims under the Statutory Accident Benefits Schedule (SABS), O Reg 34/10, ultimately reaching a proposed settlement of $70,000 with the appellant insurer, Primmum Insurance Company.

The minutes of settlement were formally signed on September 19, 2022. Subsequently, on January 30, 2023, an application was filed in the Ontario Superior Court of Justice seeking approval for this proposed settlement. The initial application materials included an affidavit from the paralegal involved in the negotiations. A supporting affidavit, submitted in June 2025 by a solicitor, affirmed that, following a review of the medical evidence, the proposed resolution was considered both fair and reasonable. This submission also detailed the proposed legal fees and the net amount designated for the respondent.

However, Justice R. Lee Akazaki, the application judge, rejected the request for approval. Critically, this decision was made without soliciting submissions from the parties and was initiated by the judge himself. Justice Akazaki concluded that the Superior Court lacked the authority to approve the settlement, asserting that the resolution of SABS claims fell exclusively within the jurisdiction of the Licence Appeal Tribunal. This jurisdictional finding became the central point of contention in the subsequent appeal.

The insurer subsequently launched an appeal, contending that the application judge had committed a legal error in his assessment of the Superior Court's jurisdiction. Both the respondent and the interveners concurred with this position, advocating for the lower court's decision to be overturned and the proposed settlement to be approved. The Ontario Court of Appeal ultimately allowed the appeal, characterizing the application judge's initial decision as "fundamentally flawed." Exercising its authority under section 134(1)(a) of Ontario's Courts of Justice Act, 1990, the appellate court proceeded to approve the $70,000 settlement.

In its definitive ruling, the Ontario Court of Appeal unequivocally stated that the Superior Court of Justice possesses the necessary jurisdiction to approve settlements for Statutory Accident Benefits Schedule claims, directly overturning a lower court's erroneous finding. Furthermore, the appeal court confirmed that paralegals licensed by the Law Society of Ontario are indeed permitted to negotiate SABS claims on behalf of individuals classified as persons under disability. While acknowledging a specific prohibition against paralegals negotiating SABS settlements for catastrophically impaired clients, the court clarified that this particular restriction was not applicable in the circumstances of this case.

The appellate court also identified an additional error in the application judge's interpretation of Rule 7 of the Rules of Civil Procedure. The lower court had incorrectly determined that Rule 7 mandated a lawyer to both negotiate the proposed settlement for a party under disability and to file an affidavit confirming this negotiation. The Court of Appeal clarified that Rule 7 instead requires the submission of an affidavit from a solicitor representing the litigation guardian. This affidavit must contain the lawyer's professional opinion on whether the proposed settlement serves the best interests of the party under disability, along with the rationale supporting that opinion, thereby enabling the court to properly evaluate the settlement's reasonableness. The appeal court further noted a procedural misstep by the application judge, who failed to inform the parties and the Public Guardian and Trustee of his concerns regarding the Superior Court's jurisdiction before contemplating the denial of the approval application.

This landmark decision from the Ontario Court of Appeal provides crucial clarity for legal professionals across the province, particularly those engaged in personal injury and Statutory Accident Benefits Schedule (SABS) matters. It definitively affirms the scope of practice for licensed paralegals in Ontario, establishing their authority to negotiate SABS claims when representing individuals who are legally recognized as persons under disability. This ruling ensures that such vulnerable clients can continue to access representation from paralegals in these specific types of claims, streamlining the resolution process.

Moreover, the appellate court's pronouncement on jurisdiction is equally significant. By confirming that the Superior Court of Justice is the appropriate forum for approving SABS settlements, it resolves a key ambiguity that had been raised by the application judge. This clarification is vital for ensuring consistency and predictability in the legal process for securing court approval of settlements involving disabled parties.

The decision also reinforces the procedural requirements under Rule 7, emphasizing the indispensable role of a solicitor's affidavit in the settlement approval process. This affidavit, which must articulate the solicitor's opinion on the settlement's alignment with the best interests of the person under disability and provide supporting reasons, remains a cornerstone for judicial oversight. This ensures that the courts can thoroughly assess the fairness and reasonableness of such settlements, safeguarding the welfare of vulnerable individuals.

Lawyers and paralegals in Ontario should note that paralegals licensed by the Law Society of Ontario can negotiate SABS claims for persons under disability, and the Superior Court of Justice has jurisdiction to approve such settlements. This clarifies the scope of practice for paralegals in personal injury matters and confirms the proper forum for settlement approvals, provided a solicitor's affidavit on the client's best interests is included.

Source: Original reporting via Law Times Canada