In the world of motor vehicle litigation, mediations often involve two distinct but overlapping battlegrounds: tort and accident benefits. When the plaintiff’s CAT (catastrophic impairment) determination remains unresolved, the tort insurer is often faced with a difficult strategic choice — one that was squarely in play in a recent case I mediated.

The plaintiff had sustained soft-tissue injuries in a serious collision several years ago. Over time, there was imaging evidence of a tear, but its origin remained indeterminate. Five years post-accident, the plaintiff underwent a cervical spine fusion. Their medical history was layered and complex, including heart issues, physical complaints and depression, but they were also a high-achieving individual with an impressive personal and professional record — the type of profile that could resonate with a jury.

From the tort insurer’s perspective, the problem wasn’t only the injuries themselves, but the procedural landscape. A CAT determination had been made against the plaintiff in the accident benefits file, but the matter was headed toward a LAT hearing. Recent statistics painted a stark picture. Since the LAT assumed jurisdiction over accident benefits disputes in 2016, there has been a notable shift in outcomes. Data compiled by Tribunal Watch and OTLA suggests that in 2017, applicants succeeded in roughly 33% of LAT disputes^[1]. By 2023, that number had fallen to approximately 10%. Insurer success rates, by contrast, rose from 56% to 71%, with split decisions accounting for the remainder^[2].

Yet the CAT outcome carried a layered set of implications for the tort claim, not all of them favourable to the defence. A finding of no catastrophic impairment at LAT would cut off the plaintiff’s entitlement to CAT-level accident benefits, capping med/rehab at the $65,000 non-CAT limit (already nearly exhausted in her case) and eliminating AB-funded housekeeping, attendant care, and potentially the post-104-week income replacement. That would slash the AB insurer’s ongoing exposure, but shift any proven future treatment, care, or income loss needs squarely onto the tort insurer. Conversely, a successful CAT determination would keep those future costs with the AB insurer, but bolster the plaintiff’s overall injury narrative and damages claim in tort, particularly before a jury inclined to credit her achievements and perseverance.

At mediation, the tort insurer faced a classic strategic dilemma. One option was to settle immediately for a figure that, while higher than might ultimately be necessary, would buy certainty and avoid the uncertainty of the pending LAT decision. This approach would prevent the risk of a later jury award inflated by a successful CAT determination and the plaintiff’s compelling personal story. The alternative was to hold off until the LAT outcome, with the statistical odds strongly favouring an insurer win. A non-CAT result could dramatically reduce the AB insurer’s obligations — but in this case, where the non-CAT limits were almost exhausted and the five-year med/rehab window was closing, it would also shift responsibility for any proven future treatment, care, housekeeping, attendant care, and income loss squarely onto the tort insurer. That meant that even a “win” at LAT could translate into increased tort exposure if the plaintiff succeeded in establishing those needs at trial, forcing the defence to weigh the savings of waiting against the risk of paying more later.

In these situations, the decision often turns on more than just legal probabilities. Factors such as the plaintiff’s credibility, the trial venue, the potential for jury sympathy, and the medical narrative all play a role. A plaintiff with a fusion surgery, ongoing functional complaints, and a compelling life story poses a non-trivial trial risk, even if causation can be contested.

The optimal strategy may differ from file to file, but the central lesson is constant: tort insurers must weigh the hard data of LAT success rates against the soft variables of trial risk. Buying certainty has a price — the challenge is deciding whether today’s premium outweighs tomorrow’s potential exposure.

Conclusion

When a tort claim proceeds to mediation with a pending LAT hearing on a catastrophic impairment dispute, both plaintiff and defence face a complex set of strategic decisions.

For the tort insurer, the statistical track record at LAT may suggest a strong likelihood of a non-CAT result, which could limit the accident benefits insurer’s obligations. Yet in cases where non-CAT limits are already depleted and time restrictions are about to expire, such an outcome may shift responsibility for any proven future care, housekeeping, attendant care, and income loss entirely onto the tort claim.

For the plaintiff, a CAT win at LAT could preserve access to higher accident benefits and strengthen the narrative of serious, ongoing impairment in the tort action, but carries the risk of delay, additional expense, and the possibility of an unfavourable LAT outcome undermining the future-loss case.

Both sides must weigh the quality of the medical evidence on causation, the plaintiff’s credibility and jury appeal, the trial venue’s tendencies, and the cost and timing of moving forward. They must also consider whether resolving the case now, while the CAT determination remains uncertain, offers a better balance of risk, cost, and closure than waiting for a definitive ruling that could decisively shift the landscape for either party.