In Brewer v. Definity Insurance Company, the Licence Appeal Tribunal (LAT) awarded several denied treatment plans and pre-104 and post-104 income replacement benefits (IRBs) to the applicant, a 60-year-old construction site supervisor. The decision is a useful reminder that strong lay witness evidence from employers and family physicians are likely to be weighted heavily in the LAT’s assessment of credibility, function and employability. In contrast, surveillance evidence showing isolated activity may carry limited weight when assessing sustainable employability.
Background
The applicant was involved in a collision on April 28, 2023 and sought accident benefits pursuant to the Statutory Accident Benefits Schedule.
Prior to the collision, the applicant worked as a construction site supervisor. His role involved managing trades, coordinating multiple construction sites, ensuring workplace safety and performing physically demanding tasks including climbing ladders and lifting heavy materials.
The respondent argued that the collision was relatively minor and that the applicant’s impairments were attributable primarily to significant pre-existing medical conditions, including obesity, diabetes, hypertension, sleep apnea, carpal tunnel symptoms and prior shoulder issues.
The applicant acknowledged his medical history but the evidence supported that these conditions did not interfere with his ability to work prior to the collision. It was accepted that before the collision, he worked long hours without extended absences.
The LAT’s Findings
The LAT accepted that the collision was a necessary cause of the impairments underlying the applicant’s IRB claim. Importantly, the LAT emphasized that the existence of pre-existing medical conditions does not negate entitlement where the evidence demonstrates meaningful pre-collision function. The LAT carefully compared the applicant’s pre- and post-collision functioning and found that, despite prior health issues, he had been fully functional and employable before the collision.
The decision also highlights the importance of strong lay evidence. The applicant’s testimony was corroborated by both his employer and family physician, whose testimony confirmed that his pre-collision medical conditions had not interfered with his employment.
Surveillance Evidence and Sustainable Employability
The respondent relied heavily on surveillance conducted during the post-104 period, which showed the applicant carrying materials, shopping at a hardware store and briefly shovelling snow. There was a dispute about the admissibility of the surveillance, as it was conducted more than three months after the LAT’s deadline to serve any surveillance to be relied upon in the hearing. However, the LAT decided to admit the surveillance because it was served 41 days prior to the hearing and, as such, there was minimal prejudice to the applicant. Ultimately, the LAT assigned the surveillance limited probative value because it was not sufficient to support that the applicant could complete the recorded activities on a prolonged or consistent basis.
In a particularly helpful passage for applicants, the LAT characterized the surveillance as merely “a brief snapshot in time” and accepted that isolated activity did not establish an ability to sustain competitive employment on a prolonged or consistent basis. The LAT accepted the evidence of both the applicant’s family physician and employer that the applicant could not repeatedly perform the physical and cognitive demands of construction supervision over full workdays.
The decision reinforces an important principle in IRB litigation: the ability to perform sporadic physical tasks is not equivalent to the ability to sustain meaningful employment in a real-world setting.
Medical and Vocational Evidence
The LAT preferred the opinions of the applicant’s family physician and vocational assessor over the insurer examination (IE) evidence.
Of note, the LAT expressly criticized one IE assessor’s testimony for lacking neutrality after he attributed the applicant’s reported pain symptoms to obesity and for providing testimony on collision mechanics outside of his expertise.
The LAT accepted that the applicant suffered from chronic pain, persistent headaches and psychological impairments that prevented him from returning not only to his pre-collision occupation, but to any reasonably suitable employment.
In addressing post-104 IRB entitlement, the LAT relied on the Court of Appeal for Ontario’s decision in Traders General Insurance Company v. Rumball, 2025 ONCA 656 (CanLII) recognizing that “reasonably suited employment” requires consideration of real-world employability, including retraining practicality, remuneration, status, age and competitive disadvantage.
Although alternative occupations such as construction estimator or building inspector were identified, the LAT accepted that retraining was unrealistic given the applicant’s age, chronic pain, psychological limitations and proximity to retirement.
Practice Takeaways
- Family physicians who can clearly compare pre- and post-collision functioning remain powerful witnesses at the LAT;
- Employer evidence can be highly persuasive in establishing both an applicant’s pre-collision physical and cognitive employment demands;
- Challenges to the neutrality and scope of IE evidence can meaningfully affect the weight assigned by the LAT;
- Surveillance showing isolated activity may be given limited weight where it does not demonstrate sustainable work capacity over time; and
- Late service or disclosure is unlikely to result in exclusion of surveillance.
