LAT-titude For Success: Criterion 8 Update

The Licence Appeal Tribunal ("LAT") released a steady stream of decisions addressing catastrophic impairment claims under Criterion 8, which concerns mental or behavioural disorders under the Statutory Accident Benefits Schedule¹. A review of decisions for the period of 2023 through 2025 reveals evolving patterns in claimant success rates and recurring themes in how adjudicators assess evidence and apply the AMA Guides, Fourth Edition ("the Guides")².

To be deemed catastrophically impaired under Criterion 8, an applicant must be found to have three Class 4 marked impairments or one Class 5 extreme impairment in the four spheres of function, namely, (1) activities of daily living, (2) social functioning, (3) concentration, persistence and pace, and (4) adaptation to work or work-like settings.

2023

In 2023, the LAT released 40 decisions in which applicants sought a catastrophic designation under Criterion 8. Of these, 10 applicants were successful, representing a 25% success rate.

The predominant issues in unsuccessful applications revolved around credibility, inconsistent self-reporting, and weak causation. Many of the applicants' s.25 assessments were rejected because they relied heavily on self-reporting without sufficient objective testing or corroboration. Surveillance evidence often contradicted applicants' descriptions of daily limitations. Adjudicators repeatedly found that applicants remained independent in self-care, household tasks, and social activities. For instance, in Lanzon v Economical³ and Veljko v Intact⁴, the Tribunal noted that the applicant reports lacked proper functional analysis and failed to apply the AMA Guides accurately.

Where applicants succeeded, the cases were characterized by consistent, comprehensive, and credible evidence of post-accident decline. Successful applicants, such as in Boni v. CAA⁵, Nguyen v. TD Insurance⁶, MacMillan v. TTC⁷, S.B. v. Certas⁸, and Tokan v. Co-operators⁹, provided cohesive medical and occupational evidence showing deterioration in daily and social functioning that could not be explained by pre-existing factors. These decisions gave substantial weight to well-documented s.25 reports that aligned with collateral testimony and medical records.

Overall, 2023 demonstrated a strong emphasis on objective consistency, functional evidence, and proper methodological application of the Guides. The Tribunal frequently criticized assessments that blurred the line between diagnosis and impairment. The trend showed that applicants could succeed only when they presented clear, accident-related functional losses corroborated by multiple disciplines.

2024

In 2024, the LAT released 38 Criterion 8 decisions, but only seven applicants were successful, representing an overall win rate of 18%.

The Tribunal continued to take a strict, evidence-based approach. Decisions such as Mai v Wawanesa¹⁰, Ganopolsky v. Security National¹¹, and Jamali v Economical¹² reflected a recurring skepticism toward self-reported symptoms, particularly when contradicted by surveillance, social media, or testimony indicating preserved function. Many applicants were found capable of performing daily activities, maintaining relationships, or working part-time, leading to findings of only moderate impairments rather than marked or extreme impairments.

A significant number of denials also turned on causation, where pre-existing psychiatric, physical, or social problems (such as substance use, ODSP status, or family stressors) were determined to be the primary drivers of impairment, rather than the motor vehicle accident. For example, in McMillan v. Intact¹³, the Tribunal found that pre-existing impairments explained the applicant's ongoing limitations. Similarly, in Armstrong v. Intact¹⁴, the s.25 psychiatrist's conclusions were found to be in "direct conflict with the medical evidence." Insurers also benefited from decisions such as Barnes v. Security National¹⁵ and where surveillance and social media activity showed the applicant functioning at higher levels than alleged.

The few successful cases included Delorme v. Primmum¹⁶, Dyer v. Economical¹⁷, Harbin v. Echelon¹⁸, Ouderkirk v. Belair Direct¹⁹, Christensen v. Primmum²⁰, and Rattan v. TD General²¹. The common thread amongst these decisions was the robust, multidisciplinary s.25 evidence. These reports included collateral interviews, psychometric testing, and clear explanations of how impairments translated to real-world functional deficits. Adjudicators tended to prefer the applicant's evidence when s.44 assessors had methodological flaws, failed to attend hearings, or produced formulaic reports that did not address the Guides' criteria in sufficient detail. Credible witness testimony and documented failed return-to-work attempts also played an important role in confirming impairment severity.

By the end of 2024, the LAT's reasoning showed increasing methodological sophistication. Adjudicators distinguished between marked and moderate impairments, reinforced that Criterion 8 is a functional, not diagnostic test, and penalized both sides when evidence lacked substance. Applicants succeeded only when the connection between the accident, the diagnosed disorders, and the resultant loss of function was explicit, detailed, and corroborated.

2025

As of October 2025, the LAT has released 31 Criterion 8 decisions, with 12 applicants being successful, a 39% success rate.

The decisions continue the pattern of careful scrutiny but show a modest rise in successful applicant outcomes compared to previous years.The year's successful cases include: Yousafzai v. TD²², Fleming-Dorie v. Certas²³, Sergeant v. Wawanesa²⁴, and Cattermole v. RSA²⁵. These successful decisions emphasized real-world examples of dependence, social withdrawal, inability to adapt, and failed work reintegration. Many adjudicators explicitly relied on collateral interviews, family testimony, and functional testing that showed impairments in activities of daily living, concentration/persistence/pace, and adaptation. A few cases, such as T.C. v Gore Mutual²⁶, found extreme impairments (Class 5) where accident-related neurocognitive or psychiatric decline was unequivocally demonstrated.

Conversely, the unsuccessful cases continued to be dominated by themes of pre-existing conditions, inconsistent testimony, moderate functionality, and weak methodology. Adjudicators consistently discounted s.25 reports that lacked methodological transparency, failed to differentiate pre- and post-accident function, or were inconsistent with daily evidence such as driving, travel, or social activity. For instance, in Shafi v. Intact²⁷ and Sinclair v. The Personal²⁸,the LAT concluded that the applicants' impairments were moderate rather than marked, citing ongoing social engagement and self-sufficiency.

In several cases, adjudicators highlighted the need for objective, contemporaneous medical support, rejecting reports conducted years after the accident that relied mainly on WHODAS or subjective data.

Overall, the 2025 decisions rejected speculative, self-reported, or causally unclear claims. The Criterion 8 success depended less on diagnosis and more on demonstrated, corroborated, functional incapacity that could be convincingly attributed to the accident.

Key Takeaways for Insurers

Across the three-year span, several themes remain constant. Successful applicants generally present comprehensive, methodologically sound, evidence with psychological, occupational, and collateral information. The Tribunal rewards assessments that directly link observed functional limitations to the accident and that clearly apply the Guides' definitional thresholds for "marked" and "extreme" impairments.

Ensuring s.44 reports are focused on functional ability, and aligned with the Guides,is a necessity.Where causation issues exist, particularly pre-existing psychiatric or social issues that may explain ongoing limitations, this must be spelled out in the s.44 assessments. Surveillance and collateral sources can be useful in challenging self-reporting and demonstrate retained functional capacity.

Looking Ahead

While the partial 2025 data show an uptick in claimant success, Criterion 8 remains a high evidentiary threshold. The LAT continues to require detailed, credible, and causally grounded evidence before finding a catastrophic impairment on mental behavioural grounds.

As the year concludes, we can expect adjudicators to maintain a close focus on credibility, consistency, and functional analysis, all of which remain decisive in determining the outcome of Criterion 8 claims.

Footnotes

1.. O. Reg. 34/10: STATUTORY ACCIDENT BENEFITS SCHEDULE – EFFECTIVE SEPTEMBER 1, 2010

2.. American Medical Association. AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. American Medical Association, 1993.

3.. 2023 CanLII 42578 (ON LAT), <https://canlii.ca/t/jx8px>

4.. 2023 CanLII 7295 (ON LAT), <https://canlii.ca/t/jvbg4>

5.. 2023 CanLII 15055 (ON LAT), <https://canlii.ca/t/jvwdl>

6.. 2023 CanLII 96314 (ON LAT), <https://canlii.ca/t/k0q1f>

7.. 2023 CanLII 91460 (ON LAT), <https://canlii.ca/t/k0hz7>

8.. 2023 CanLII 91471 (ON LAT), <https://canlii.ca/t/k0hzr>

9.. 2023 CanLII 81865 (ON LAT), <https://canlii.ca/t/k01ls>

10.  2024 CanLII 77425 (ON LAT), <https://canlii.ca/t/k6ch3>

11. 2024 CanLII 67346 (ON LAT), <https://canlii.ca/t/k5vn7>

12. 2024 CanLII 43434 (ON LAT), <https://canlii.ca/t/k4mm2>

13. 2024 CanLII 97862 (ON LAT), <https://canlii.ca/t/k79g6>,

15.. 2024 CanLII 61872 (ON LAT), <https://canlii.ca/t/k5mdb>

16.. 2024 CanLII 74767 (ON LAT), <https://canlii.ca/t/k67hz>

17.. 2024 CanLII 33186 (ON LAT), <https://canlii.ca/t/k44hm>,

18.. 2024 CanLII 28818 (ON LAT), <https://canlii.ca/t/k3wrs>,

19.. 2024 CanLII 108219 (ON LAT), <https://canlii.ca/t/k7qr4>

20.. 2024 CanLII 115421 (ON LAT), <https://canlii.ca/t/k81h6>

21.. 2024 CanLII 126980 (ON LAT), <https://canlii.ca/t/k8hq9>

22.. 2025 CanLII 1849 (ON LAT), <https://canlii.ca/t/k8xtq>

23.. 2025 CanLII 5849 (ON LAT), <https://canlii.ca/t/k97mb>

24.. 2025 CanLII 35936 (ON LAT), <https://canlii.ca/t/kbrn8>

25.. 2025 CanLII 39285 (ON LAT), <https://canlii.ca/t/kbwtz>

26.. 2025 CanLII 89898 (ON LAT), <https://canlii.ca/t/kf8qk>

27.. 2025 CanLII 69513 (ON LAT), <https://canlii.ca/t/kd9vv>

28.. 2025 CanLII 69507 (ON LAT), <https://canlii.ca/t/kd9wb>

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.