Plante (Litigation Guardian) v. Dynamic Functional Solutions Inc. et al, 2026 ONSC 4502
This important decision came as the result of a motion to strike the Statement of Claim brought by the Defendants Dynamic Functional Solutions Inc. (DFS) and Dr. Aladetoyinbo.
Background
The plaintiff, who has been under a disability since birth, was injured in a motor vehicle collision on May 30, 2019. She applied for various accident benefits from her insurer, Economical Insurance, including an application for a determination of catastrophic impairment (CAT). Economical then retained DFS to arrange assessments pursuant to s. 44 of the Statutory Accident Benefits Schedule (SABS), who in turn retained Dr. Aladetoyinbo, among others to perform the assessments.
The plaintiff eventually filed a Licence Appeal Tribunal (LAT) application following the denial of her CAT application. After the application failed, and reconsideration was denied, the matter made its way to the Divisional Court, culminating in the decision of Plante v. Economical Insurance Company, 2024 ONSC 7171. Prior to the Divisional Court hearing, the plaintiff sought and obtained a complete copy of the DFS file, which was in turn filed in the Divisional Court. These files contained evidence that DFS was involved in the formulation of the opinions contained in the medical reports and formed the foundation of an allegation that they actively modified and altered expert findings and opinions. In ordering a new hearing, the Divisional Court noted that a company like DFS has no role to play with respect to the substance of an expert’s report, and that based on the evidence before it, “DFS failed to understand its role.”
Following receipt of the DFS file, the plaintiff sued DFS, Dr. Aladetoyinbo and Janelle MacKinnon, Occupational Therapist, for fraud, negligent misrepresentation, negligence, inducing breach of contract and unlawful means. Shortly following service of the statement of claim, DFS and Dr. Aladetoyinbo brought a motion to strike the statement of claim on the grounds that:
(1) The court did not have jurisdiction over the subject-matter as a result of s. 280 of the Insurance Act based on two Court of Appeal decisions, namely Stegenga v. Economical, 2019 ONCA 615 and Yang. v. Co-operators, 2022 ONCA 178;
(2) The statement of claim did not disclose a reasonable cause of action; and
(3) That the claim was an abuse of process as a collateral attack on ongoing LAT proceedings.
The Superior Court of Ontario Has Jurisdiction
With respect to the jurisdictional issue, the Honourable Justice Muszynski engaged in statutory analysis of s. 280 of the Insurance Act, and distinguished both Stegenga and Yang on their facts. Unlike Stegenga and Yang, cases in which the plaintiffs had sued their own insurers and sought to litigate their entitlement to SABS, the plaintiff in this case has not alleged any wrongdoing by her own insurer and is not seeking the payment of any SABS. Rather, her damages are focused primarily on general damages, legal costs for attending at the LAT and, most importantly, punitive damages for the defendants’ egregious conduct.
In rejecting the moving parties’ arguments, Her Honour also cited the decision Grewal v. Dynamic Functional Solutions Inc. et al., 2025 ONSC 4391, where the very same DFS had successfully argued before the Divisional Court that the LAT did not have jurisdiction to adjudicate tort claims against non-insurer parties. Striking this claim for lack of jurisdiction would effectively create a lacuna where non-insurer tortfeasors would have immunity for wrongs arising in the SABS context. Her Honour concluded that: “There must be a mechanism for pursuing relief against non-insurer tortfeasors regardless of whether the wrong arises in the SABS context.”
Reasonable Causes of Action
As set out above, the statement of claim advanced five causes of action: unlawful means, inducing breach of contract, negligence, fraud and negligent misrepresentation, all of which were challenged in the within motion.
After reviewing the claim, Justice Muszynski found that the plaintiff had plead sufficient facts so as to ground reasonable causes of action in both unlawful means and inducing breach of contract.Her Honour found that the allegations of false and/or negligent misrepresentations by the defendants to Economical, could have caused damages to the plaintiff, a third party. Her Honour also accepted that the statement of claim had sufficiently plead facts to ground her claim in inducing breach of contract, although she later noted that her claim in this regard may be affected by any success stemming from the result of the ongoing hearings before the LAT.
The moving parties also argued that the negligence claim should also be struck as a result of the lack of proximity between them and the plaintiff to create a duty of care, and that even if there was, it would be quashed by witness immunity. Interestingly, Her Honour referred to a decision from the Divisional Court in Worthman v. Assessmed Inc., 2006 CanLII 7038 (ON SCDC), where a motion for summary judgment had been brought by defendants in regard to similar allegations, and on the same grounds. Her Honour adopted the ratio from Worthman, deciding that the question of whether a duty of care could be established, or whether witness immunity applied within the context of the SABS, is best decided by the trial judge with the benefit of a full evidentiary record.
Her Honour did, however, agree with the moving parties that there were no reasonable causes of action in either fraud or negligent misrepresentation, as the reports were made by the moving parties to Economical Insurance, and the plaintiff had not relied on the representations of the defendants in this case. As a result, she concluded that the relationship between the defendants and the plaintiff was too remote to ground an action in these two torts. While striking these two claims, Her Honour did grant leave to the plaintiff to amend the pleadings to address the application of fraud and negligent misrepresentation in the context of the plaintiff’s allegations of unlawful means.
Not an Abuse of Process
Finally, Her Honour also rejected the moving parties’ arguments that this lawsuit was an abuse of process as a collateral attack on the LAT. In this regard, Justice Muszynski adopted a similar analysis as set out above with respect to the jurisdictional issue. Simply put, the plaintiff was not seeking to re-litigate her entitlement to SABS by suing her own insurer. She was seeking general and punitive damages for the harm caused to her by third parties as a result of their conduct during the SABS process.
It is highly anticipated that this decision will be appealed.