Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONCA 835
Insurer ordered to pay home modifications for catastrophically insured claimant – motion for stay pending appeal denied.
The respondent was 83 years when she sustained catastrophic injuries in a motor vehicle accident in April 2016. Following the accident, she continued to live in her apartment with attendant care services. She requested home modifications to her daughter’s home under the Statutory Accident Benefits Schedule (SABS) in the amount of $388,082.53. Certas Home and Auto Insurance Company denied this and instead paid $22,825.53 for changes to her existing condo.
The respondent disputed the denial to the Licence Appeal Tribunal (LAT). The application and reconsideration were both dismissed. In September 2025, the Divisional Court overturned the LAT decision and ordered the remaining amount ($365,257) to be paid with immediate effect. It further denied a stay of its decision pending the appeal to Court of Appeal.
In its oral endorsement, the Divisional Court stated that if the matter were remitted back, it was reasonably foreseeable that justice would come too late to the now 92-year-old insured.
Certas asked for an extension of time to serve and file materials for their motion for leave to appeal to the Court of Appeal which the respondent did not oppose. The Court of Appeal granted this motion.
Certas also brought a motion to stay the Divisional Court’s order pending appeal. The test for a discretionary stay is under Rule 63.02(1)(b) of the Rules of Civil Procedure. The moving party bears the burden of proof in demonstrating that the stay pending appeal should be granted. Ducharme v. Hudson, 2021 ONCA 151 at para. 11. The factors to determine whether a stay is in the interest of justice include:
- Whether there is a serious issue to be tried;
- Whether the moving party would suffer irreparable harm if the stay were refused; and
- The balance of convenience, namely which of the parties would suffer greater harm from the granting or refusing of the stay.
The Court of Appeal found the factors in this case had not been met and denied Certas’ stay motion. With respect to the first factor, “serious issue to be tried” – while the threshold is low, the court also considers reasons for applications for leave to appeal. Since the Divisional Court has not yet released its reasons, the serious issue criterion favoured allowing the stay motion.
With respect the “irreparable harm” factor, Certas argued that if the modifications to the daughter’s home were made, it would lose money and be unable to recover if it eventually won the appeal. Other than that point, the court found no further evidence of irreparable harm. Speculative evidence about irreparable harm is not sufficient. Certas was required to establish to a high degree of probability that permanent and non-compensable harm would occur.
With respect to the “balance of convenience”, the court found it did not favour granting a stay. If Certas paid but later obtained leave to appeal and was successful, then they may have paid money which cannot be recovered. In contrast though, the harm in granting a stay pending motion for leave to appeal favoured the 92-year-old respondent who is in poor health, long-term care facility and requires significant assistive care services. If a stay were granted to Certas, the respondent would be the one who would suffer greater prejudice.
In dismissing the stay motion, the Court of Appeal made a sound statement at paragraph 18:
“I would add that this is a SABS dispute. It is an important feature of that regime that claims made by individuals for SABS benefits are not delayed by payment dispute litigation. In my view, granting the stay would be contrary to this important policy principle.”