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Insurance (Auto) - Claims - Time Limits. Jakupovic v. Intact Insurance Company
In Jakupovic v. Intact Insurance Company (Ont CA, 2026) the Ontario Court of Appeal allowed an insurer's LAT SABS appeal, this brought against a Divisional Court finding that "the respondent complied with s. 32(1) [SS: 'Notice to insurer and application for benefits'] of the SABS", here where the issue was whether the claimant had met the seven day "or as soon as practicable after that day" time limit.
Here the court makes what IMHO is a result-harsh ruling against auto insureds:[3] The respondent was involved in a motor vehicle accident on February 13, 2019. He contacted the appellant the following day and reported the accident and the property damage to his vehicle. While he had contact with the appellant on multiple occasions concerning the property damage, he did not advise them of his intention to claim accident benefits until December 12, 2020, when he submitted an Application for Accident Benefits (OCF-1) to the appellant.
[4] The appellant initially approved the respondent’s application for benefits but later raised the issue of whether the respondent’s claim was statute-barred. The appellant notified the respondent that they were terminating his entitlement to benefits on April 14, 2022 due to late reporting. Pursuant to the process set out in the SABS, the respondent applied to the LAT for dispute resolution on December 28, 2022. The issue was determined by an Adjudicator who, in a decision dated December 22, 2023 (“Merits Decision”), determined that the respondent failed to comply with section 32(1) of the SABS because he failed to notify the appellant within seven days of his intention to claim accident benefits.
[5] The respondent then sought a reconsideration of the decision pursuant to Rule 18 of the License Appeal Tribunal Rules. In reasons dated May 21, 2024 (“Reconsideration Decision”), the request was dismissed and the original decision upheld. The respondent appealed the LAT decisions to the Divisional Court. In a decision dated February 7, 2025, the Divisional Court allowed the appeal, finding that by reporting the accident, the respondent complied with s. 32(1) of the SABS. Leave to appeal to this court was granted on October 9, 2025.
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[9] The issue to be determined on this appeal is whether the Divisional Court erred in law in its interpretation of s. 32(1). Also relevant is s. 34 which provides relief from lack of compliance with s. 32(1).
[10] The sections at issue read as follows:Notice to insurer and application for benefits
32 (1) A person who intends to apply for one of more benefits described in this Regulation shall notify the insurer of his or her intention no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.
(2) the insurer shall promptly provide the person with,
(a) the appropriate application forms;
(b) a written explanation of the benefits available;
(c) information to assist the person in applying for benefits; and
(d) information on the election relating to income replacement, non-earner and caregiver benefits, if applicable.
(5) the applicant shall submit a completed and signed application for benefits to the insurer within 30 days after receiving the application forms.
34 A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation. [11] The appellant submits that s. 32(1) of the SABS is not ambiguous and that the interpretation of the Divisional Court is wrong in law and departs from the plain meaning of the section. It imposes obligations on insurers that are not contained in the statute and reverses the sequence of the steps that the legislature enacted.
[12] The respondent says that the Divisional Court’s interpretation aligns with existing jurisprudence and the general principles of statutory interpretation. The provisions of the SABS must be interpreted through the lens of consumer protection legislation, meaning that its provisions must be construed in a way to ensure that people who are entitled to accident benefits receive them. Because insureds cannot notify the insurer of their intentions if they do not know their rights, the respondent argues, an insurer must have an obligation to make inquiries in order to fulfill this consumer protection purpose of the SABS. The respondent argues that insurers are sophisticated, they know the provisions of the legislation, and once an accident is reported, they should make the appropriate inquiries of the insured to determine whether they sustained injuries and intend to claim benefits.
[13] The intervener OTLA supports the position advanced by the respondent. It submits that a duty of good faith is owed by insurers to their insureds and that upon being notified by the insured of an accident, there is an obligation on the insurer to make inquiries to ascertain if the insured was injured and if so, to provide the application forms to commence the process. OTLA says that reporting an accident is sufficient to comply with s. 32(1), as found by the court below. OTLA also submits that the time for submitting the forms commences when the insured formed the intention to seek payment of SABS, not from the date of the accident.
[14] I do not agree with this interpretation. In my view, s. 32(1) is not ambiguous. It requires a person who is involved in an accident and who intends to claim benefits to notify the insurer of their intention to do so. This is plain, clear language and it is mandatory. The notice requirement sets in action the further steps: the insurer must send an application package to the insured, along with an explanation of what the various benefits comprise. Following that, the insured must complete the application in a timely fashion and return it to the insurer.
[15] The language of section 32(1) is not reasonably capable of supporting more than one meaning: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] S.C.R. 559, at para. 29. It sets out clearly what the insured must do in order to start the process of receiving accident benefits. Contrary to the submission of OTLA, it does not permit an insurer to avoid their obligations to the needs of an insured.
[16] The submission of the respondent and of the intervener that there is an obligation on the insurer to ask questions of the insured to ascertain if they are injured and intend to apply for benefits is without merit. It is contrary to a plain reading of s. 32(1) which requires certain action from the insured to provide notice that accident benefits will be claimed.
[17] Both the respondent and the intervener emphasized that the SABS is consumer protection legislation. While that is undoubtedly correct, the Divisional Court erred in law by focusing its analysis on the fact that the SABS is consumer protection legislation rather than following the established principles of statutory interpretation. The Divisional Court’s analysis proceeded directly to weighing two competing interpretations in light of the purposes of the regulation, without first considering whether the text, context, and purpose read together pointed towards a clear meaning. This was an error. As the Supreme Court has noted, “even ‘laudable’ policy objectives do not themselves permit courts to apply interpretations that are not consistent with the text and context”: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, 502 D.L.R. (4th) 59, at para. 70, citing R. v. Breault, 2023 SCC 9, [2023] 1 S.C.R. 340, at para. 26.
[18] Here, the Divisional Court found:[T]he notice requirement under the LAT was met when the Insured advised the Insurer one day after the accident that he had been in an accident. A reasonable insurer would assume that an insured who has been in an accident intends to access all the benefits available to them under their policy. If the insured has been injured in the accident, this will include accident benefits. If the Insurer in this case wished to clarify which specific benefits the Insured intended to access, the Insurer could have asked the Insured whether he sustained any injuries. As the Insurer chose not to ask any more questions, it should have acted on the assumption that the Insured would want to apply for accident benefits. At that point, the Insurer should have complied with its obligations under s. 32(2) of the SABS, which included sending out the necessary application forms and an explanation of the benefits available. This is an interpretation that fosters the consumer protection purpose of the SABS. [Emphasis added.] [19] The court below erred by rewriting the statutory requirements to include provisions that are not in the legislation. Section 32(1) requires a person who intends to claim SABS to advise the insured of this intention within seven days after the circumstances arose giving rise to that entitlement or “as soon as practicable after that day” (emphasis added). Section 32(1) thus envisages cases where an insured who is injured cannot comply with this timeline, which could lead to an unfair outcome. Section 34 further provides that if a claimant has not complied with the timelines under s. 32(1), relief may be granted if the insured provides a reasonable explanation.
[20] Here, there was no basis for the Divisional Court to conclude that s. 32(1) requires an insurer once notified of a motor vehicle accident involving its insured to assume that an insured will be making a claim for SABS. Simply put, s. 32(1) does not say this. The Divisional Court’s interpretation would equate reporting involvement in a motor vehicle accident with reporting injuries and an intention to claim SABS. If the legislature meant that simply reporting involvement in an accident was sufficient notice to an insurer that a claim for SABS was being made, it could have said that.
[21] Instead, the legislature has made a clear distinction between notice that an incident has occurred and notice of intention to claim benefits. This distinction is illustrated by s. 258 of the Insurance Act. Pursuant to s. 258.1(1), an insured “shall give the insurer written notice of the incident” where they intend to make a claim under their insurance contract or where the accident was required to be reported to the police. Section 258.3(1) sets out the preconditions for commencing an action for loss or damage arising from the operation of an automobile. Section 258.3(1)(b) specifies that prospective plaintiffs must have served “written notice of the intention to commence an action…”. It follows that the legislature intended that notice of an accident be understood as distinct from notice of intention to take an action.
[22] The interpretation of the Divisional Court reverses the trigger under the statute and requires insurers to initiate accident benefits claims for every accident that is reported regardless of whether the insured sustained injuries. That, in my view, would lead to an absurd result, which Rizzo cautions against: at para. 27.
[23] The foregoing analysis does not discount the purpose of the SABS. As this court has recognized, the SABS is “consumer protection legislation designed to provide fair compensation and minimize economic disruption in the lives of accident victims”: Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, at para. 43. Sections 32(1) and 34 already address non-compliance with the statutory timelines, and provide mechanisms to relieve late notice. As noted by the Divisional Court, s. 34 is “a safety valve to make sure rigid adherence to the procedural requirements in claiming benefits based upon time, does not work an injustice in an individual case”: Clouthier v. Co-Operators General Insurance, 2025 ONSC 6798, 180 O.R. (3d) 136, at para. 68. In Clouthier, the Divisional Court also remarked that the SABS should be interpreted in a way which balances speedy payment to claimants with reasonable insurance rates: at para. 66.
[24] Instead of interpreting the provisions of the SABS according to their clear wording, the court below has re-written the provisions so that s. 32(1) is rendered meaningless.
[25] The Divisional Court’s interpretation is also contrary to its own jurisprudence. In Zuchelkowski v. Zenith Insurance Co., 2024 ONSC 3512, the Divisional Court noted at para. 24:The SABs process is one aimed at consumer protection. The regulation is to be given a fair, large, and liberal interpretation bearing in mind its distinctly consumer-oriented purpose. But the chosen manner of carrying out the regulatory purpose must be gleaned from the words used in the relevant sections and in the regulation as a whole. [Emphasis added.] There is nothing in the words used by s. 32(1) that places an onus on the insurer to inquire of an insured if they will be submitting a SABS application in order to start the process of benefit payments. . Mendowegan v. Definity Insurance Company
In Mendowegan v. Definity Insurance Company (Div Ct, 2026) the Divisional Court dismissed a LAT SABS appeal, this brought against a decision finding the appellant "was statute-barred [SS: this term is used to mean limitation-barred] from proceeding with an application for statutory accident benefits (“SABs”)".
Here the court considered the test for extending time under SABS s.34 ['Result if fail to comply with time limits']:[2] .... Pursuant to s. 32(1) of the Statutory Accident Benefits Schedule, O. Reg. 34/10, a person who intends to apply for benefits must notify the insurer of his or her intention to do so no later than the seventh day after the accident. The appellant did not notify the respondent until September 20, 2024, almost 14 months after the accident and eight months after her aunt told her to contact a lawyer.
[3] Section 34 of the Schedule provides as follows:34. A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation. [4] The adjudicator received written submissions from the parties as to whether or not the appellant provided a reasonable explanation for failing to comply with s. 32(1). It is common ground that the onus of proof on this issue is on the appellant.
[5] The appellant argued, in sum, that as an unsophisticated accident victim in Northwestern Ontario, she was not aware of the availability of accident benefits through the policy on the vehicle that she had been a passenger in, and only became aware of this when she retained counsel, following which she gave immediate notice. She had no insurance of her own. Neither the police, nor hospital staff, nor anyone from Non-Insured Health Benefits discussed the availability of other insurance benefits with her. She argued that she is a young, Indigenous woman, residing in rural northwestern Ontario with limited access to internet.
[6] The respondent, in response, relied on several admissions made by the appellant during her examination under oath, including the following:- She took photographs of her injuries while in hospital because she knew that she wished to sue the person who hit her;
- She spoke with her aunt in January 2024 and was told to speak with “Dan”, her current lawyer;
- After returning home from the hospital in October 2023, she still had access to the internet and continued her job working online. [7] The legal test applied by the adjudicator in determining whether the appellant had provided a reasonable explanation was precisely the same test that was accepted by this court in Aviva v. McNamara, 2022 ONSC 1462 (Div. Ct.) at para. 22, as being the correct one. It is as follows:1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
2. The onus is on the insured person to establish a "reasonable explanation."
3. Ignorance of the law alone is not a "reasonable explanation."
4. The test of "reasonable explanation" is both a subjective and objective test that should take account of both personal characteristics and a "reasonable person" standard.
5. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
6. An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the applicant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit. ....
[24] This court has ruled more than once that questions as to whether an applicant for SABs has provided a reasonable explanation for late notice are questions of mixed fact and law, not questions of law only: see Basuric v. Dominion of Canada General Insurance Company, 2022 ONSC 6148 (Div. Ct.); Aviva v. McNamara (supra). . Clouthier v. Co-Operators General Insurance [s.34 time limit extension]
In Clouthier v. Co-Operators General Insurance (Ont Div Ct, 2025) the Ontario Divisional Court allowed an appeal, this brought against a LAT finding that the appellant was not entitled to non-earner benefit at the 'retroactive' date she claimed, here where lateness in filing the claim [under Reg.34/10 (SABS) - s.34 'Result if fail to comply with time limits' and s.36 'Claim for Income Replacement Benefit, Non-Earner Benefit, Caregiver Benefit or Payment for Housekeeping or Home Maintenance Services'] was due to her temporary incapacity stemming from the accident.
Here the court considers auto insurance claims [under SABS s.36] and time extension [under SABS s.34], here in what IMHO is an obvious decision:[3] Ms. Clouthier applied to the Licence Appeal Tribunal (the “Tribunal”) to receive non-earner benefits from March 12, 2020, through to July 7, 2020. During that interval, she was physically and mentally incapable of signing the required forms. Ms. Clouthier argued that s. 36(3) of the SABS, which requires the form to be submitted to receive non-earner benefits, should be read to exclude incapable persons. ....
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[28] No dispute arises that since the resolution of this appeal centers on the interpretation of specific provisions of a regulation - a question of law and one of significant importance - it falls within the scope of the statutory appeal and therefore the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 36-38; International Air Transport Assn. v. Canada (Transportation Agency), 2024 SCC 30, 496 D.L.R. (4th) 385, at para. 25; Hussein v. Intact Insurance Co., 2025 ONSC 842 (Div. Ct.), at para. 21.
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The Relevant Regulatory Framework
[39] Together, the Insurance Act and the SABS codify Ontario's no-fault accident benefits regime. This regime requires that every automobile insurance policy in Ontario provides its holder with access to certain benefits in the event of a motor vehicle accident, regardless of fault. To that end, every automobile insurance policy in Ontario is deemed, pursuant to s. 268(1) of the Insurance Act, to include the benefits provided in the SABS. Those who are injured in a motor vehicle accident may then claim the SABS’s benefits from their insurer.
[40] Section 36 is found within Part VIII of the SABS, which is titled “Procedures for Claiming Benefits”.
[41] Beginning with s. 32, the process to claim benefits commences with a person seeking to apply for a benefit notifying the insurer of their intention to do so, no later than seven days or as soon as practicable after that day, after the circumstances arose giving entitlement to the benefit. The insurer is then obliged to promptly provide the person with, amongst other things, the appropriate application forms. The provisions following s. 32 ensure the timely determination of the application.
[42] Sections 36 to 46 fill out the remainder of Part VIII and they specify the various benefits that a person may receive including income replacement benefits, non-earner benefits, medical or rehabilitation benefits, and attendant care benefits and the particulars required to obtain them.
[43] Sections 36 and 37 deal with a “specified benefit” which means an income replacement benefit, non-earner benefit, caregiver benefit, or a payment for housekeeping or home maintenance services.
[44] Non-earner benefit is defined in s. 12 and provides a payment of $185 a week under certain conditions to an insured person who suffers a complete inability to carry on a normal life as a result of and within 104-weeks of a motor vehicle accident and who does not qualify for income replacement benefits or was a student. One condition is that an insurer is not required to pay a non-earner benefit for the first four weeks after the onset of the complete inability to carry on a normal life.
[45] Subsection 36(2) requires an applicant for a specified benefit to submit a completed disability certificate with their application for benefits under s. 32. Subsection 3(1) defines a disability certificate to be:“disability certificate” means, in respect of a person, a certificate from a health practitioner of the person’s choice that states the cause and nature of the person’s impairment and contains an estimate of the duration of the disability in respect of which the person is making or has made an application for a benefit described in this Regulation [46] The key provision under consideration on this appeal is s. 36(3), which states:36(3) An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted. [47] The other key provision is s. 34. This states:34. A person’s failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.
The Interpretation of s. 34 Applies to s. 36(3)
[48] Both provisions must be scrutinized carefully in order to determine the appropriate interpretation of these key provisions.
[49] The purpose of s. 36(3) must be read along with the other provisions in Part VIII. When that is done, I find that the purpose of the subsection is to assist in the receipt by the insurer of required information in a timely fashion in order to adjust the claim; in this case, a certification by a health practitioner. By denying a specified benefit for the period when an applicant fails to submit a completed disability certificate, this incentivizes the applicant to fully complete their application as quickly as reasonably possible to provide the insurer the opportunity to assess the claim close in time to the accident.
[50] The respondent submits that s. 36(3) is simply a precondition for eligibility. Subsection 36(3) does not specify a time limit for the submission of a disability certificate. This subsection simply establishes a coverage period for which an applicant would be entitled to a specified benefit. In other words, it merely confirms the requirements for coverage for specified benefits to advance such a claim. The respondent submits that its clear wording reflects the legislature’s intent for this section.
[51] As such, the respondent argues that s. 34 does not apply to s. 36(3) since the latter does not involve any “time limit” as that term is found in s. 34. The respondent relies upon Tribunal decisions that have previously held that the compulsory consequences of s. 36(3) are not saved by the provisions of section 34. It is submitted that Ms. Clouthier is requesting that the court read in a condition to s. 36(3) by improperly rewriting the regulation.
[52] In my view, the fact that s. 36(3) does not provide for exceptions for a failure to meet the requirement of a disability certificate or make an explicit reference to a specific period of time is not determinative. Put another way, this is not by itself evidence of a clear legislative intent to invoke an absolute and rigid prohibition of payment of benefits prior to the submission of a disability certificate.
[53] The subsection must be viewed along with s. 34. The latter is a general provision that excuses compliance with “time limits.” It expressly applies to all the provisions in Part VIII including s. 36. Moreover, it explicitly provides the very type of remedy that is at stake in a situation like this. That is, no disentitlement of a person to a benefit if they have a reasonable explanation.
[54] The term “time limit” is not defined in the SABS. However, the use of the term in the SABS is not confined to s. 34. In some subsections, the context of the use of the term “time limit” refers to a specific period of time such as a notice or a limitation period.[1] That said, s. 22(2) refers to a “time limit of a 104 weeks” after the accident for which reasonable and necessary expenses of certain persons visiting the insured person during treatment or recovery, is not applicable if the person sustained a catastrophic impairment. This refers not to the passing of time before some action is required but a period of eligibility or a coverage period. Thus, the use of the term “time limit” in the SABS is not confined to a single meaning but depends upon the context of its use. This contextual analysis of the term’s use in the SABS supports the broader interpretation of the term “time limit” within s. 34 than the one argued for by the respondent.
[55] Under the modern principle, the interpretation of a phrase in a statute must accord with the context of its use and the underlying purpose of the provision: Lundin Mining Corp. v. Markowich, 2025 SCC 39, at para. 69.
[56] The respondent relies upon authorities such as R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, para. 68, citing with approval Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Toronto: LexisNexis, 2008), at p. 1 which holds that “legislatures use language carefully and consistently so that, unless the contrary appears, the same words have the same meaning within a statute and different words have different meanings”. When it comes to the term “time limit”, I find that the legislature uses it inconsistently in different parts of the SABS. Said differently, there is no single use of the term. Its meaning depends upon context.
[57] In my opinion, within the context of s. 34 as applied to s. 36(3), “time limit” as found in s. 34 refers to the “period before the completed disability certificate is submitted” as found in s. 36(3). This is effectively the “time limit” placed upon the eligibility for that benefit; similar to how the legislature used “time limit” in s. 22(2) in demarcating a coverage period.
[58] As submitted by the intervenor Ontario Trial Lawyers Association, s. 36(3) functions as a real-time disentitlement provision. It continuously denies benefits for every day a claimant fails to submit a disability certificate. Each day the form is not submitted is a day of permanently lost entitlement, even where, as in the case at bar, the claimant was medically eligible but incapable of compliance. Interpreting s. 36(3) as involving a “time limit” within the meaning of s. 34, is consistent with the wording found in the provisions and the context of the whole regulation.
[59] This interpretation is supported by the purposes of the SABS. A primary object of the SABS is consumer protection. In Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, at paras. 42-43, leave to appeal refused [2020] S.C.C.A. No. 7, citing with approval MacKinnon J.’s judgment in Arts (Litigation Guardian of) v. State Farm Insurance Company (2008), 2008 CanLII 25055 (ON SC), 91 O.R. (3d) 394 (S.C.), at p. 448, the Court of Appeal said “the SABS are remedial and constitute consumer protection legislation” and the “goal of the legislation is to reduce the economic dislocation and hardship of motor vehicle accident victims and as such, assumes an importance which is both pressing and substantial.” See also Smith v. Co-Operator’s General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, at para. 11.
[60] Section 34 is meant to be remedial and inclusive: Tracy Adams v. Aviva Insurance Co., 2024 ONSC 715 (Div. Ct), at para. 21. The interpretation argued for by the respondent is restrictive and “[i]nstead of fostering fairness for people with the most health needs, it increases their suffering and economic hardship”: Kellerman-Bernard v. Unica Insurance Company, 2023 ONSC 4423 (Div. Ct.), at para. 26.
[61] Given my views, I find the LAT authorities holding to the contrary like Kunaseelan v. Aviva Insurance Company of Canada, 2022 CanLII 11134 (ON LAT), at para. 21, unpersuasive.
[62] The respondent also submits that an absurdity would result if a claimant could wait until several months or years after an accident before submitting an OCF-3 for non-earner benefits or income replacement benefits and yet still be reimbursed retroactively to the date of the accident, all the while robbing an insurer of its ability to, in real time, investigate the validity and causation of the claimant’s self-reported impairments.
[63] The respondent submits that this would leave insurers in the impossible position of either (i) having to pay retroactive benefits blindly with no ability to undertake contemporaneous investigation or (ii) incurring the cost of all manner of expert assessments and underlying investigation on all claims, just in case one claimant eventually applies for a specified benefit. It argues that none of these options can be what the legislature intended and neither of these comply with the purpose of the SABS.
[64] Respectfully, the respondent’s position ignores the requirement that a “reasonable explanation” be provided under s. 34. It will remain up to the insurer and ultimately the LAT to determine what a reasonable explanation is within the meaning of s. 34 as applied to s. 36(3). Certainly, it should permit the consideration of the legal incapacity of an applicant: Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804, 61 C.C.L.I. (5th) 41, at para. 96. But the concept of a “reasonable explanation” is broader than that. All the circumstances should be considered including what steps were taken to find a litigation guardian or a substitute decision-maker during this period of incapacity.
[65] This added flexibility permits consideration of what this Court has confirmed to be basic to the purposes of the SABS. As stated in Dominion of Canada General Insurance Co. v. Ridi (Litigation guardian of), 2021 ONSC 3707, 79 M.V.R. (7th) 78 (Div. Ct), at para 29, aff’d 2022 ONCA 564, 474 D.L.R. (4th) 321, “[a]utomobile insurance is designed to be both fair and affordable…In other words, the statutory scheme specifically contemplates that insured persons may not be fully compensated for the costs associated with their care and rehabilitation as a result of their accident”.
[66] This interpretation of these provisions is one that strikes the appropriate “balance that provides some speedy payment but, in company with, insurance rates that are not unreasonably high”: Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, 15 C.C.L.I. (6th) 281 (Div. Ct.), at para 42.
[67] While a disability certificate allows an insurer to substantively adjust the claim, s. 36(3)’s main purpose is to ensure the process of timely submission is met. Permitting the discretion to relieve those applicants who can provide a reasonable explanation under s. 34 will not impair the objectives of s. 36(3). To avoid the risk of being denied a period of benefits and because of the obvious needs of injured or disabled persons for financial support, the majority of applicants will still submit a disability certificate in a timely fashion and the insurer will not be prejudiced in adjusting a claim: Tomec, at paras. 53-54; Van Galder, at para. 95.
[68] In conclusion, the cohesive and harmonious interpretation of s. 34 is that of a safety valve to make sure a rigid adherence to the procedural requirements in claiming benefits based upon time, does not work an injustice in an individual case.[2] Indeed, this interpretation avoids an absurdity in the sense used in Tomec. In Tomec, a strict literal reading of the limitation period in the SABS under consideration conflicted with the underlying purpose and spirit of the SABS. The Court of Appeal's approach in Tomec interpreted the plain language of s. 56 of the SABS dealing with limitation periods to include the additional requirement of discoverability, something that was nowhere to be found in the SABS. The Court of Appeal’s exercise in statutory interpretation to allow for the doctrine of discoverability avoided an absurdity, promoted the purpose and object of the SABS, and increased access to justice. Hourigan J.A. highlighted the contents of this principle of statutory interpretation that eschews absurdity in the following fashion (at para. 46):Statutes are to be interpreted in a manner that does not lead to absurd results. An interpretation is absurd if it "leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment": [Rizzo & Rizzo Shoes Ltd. (Re) 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 27]. [Emphasis added.] [69] To deny a person specified benefits when they were medically incapacitated from submitting a disability certificate is more than simply “unfortunate” as the respondent describes it. It is manifestly and extremely unreasonable and inequitable. It is incompatible with the primary objective of the SABS. The legislature could not have intended such an absurd result.
[70] And it did not. It enacted s. 34 to apply to the provisions found in Part VIII, including s. 36(3).
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