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Limitations - Administrative (2). 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. . Saltat v Correia and others
In Saltat v Correia and others (Ont Div Ct, 2026) the Ontario Divisional Court considers a limitations issue of 'continuing cause-of-action', here in an administrative context:[3] The applicant has been off work since 2019. In 2024, the applicant filed an application at the HRTO alleging discrimination in the course of employment on the grounds of disability and due to her association with a person identified by another ground. In response to the application, the HRTO requested that the applicant provide additional submissions on jurisdictional issues. Specifically, the HRTO noted that it appeared that the application was filed more than one year after the last alleged incident of discrimination and there did not appear to be facts showing good faith for an extension of time, as required by s. 34 of the Human Rights Code. Further, the applicant had not explained the factual basis for her belief that the respondents’ conduct was linked to the Code grounds that had been advanced.
[4] After a review of the materials submitted, the HRTO dismissed the application. The claim against Sunnybrook was dismissed due to delay. It was based upon events that took place before the applicant did not return to work in 2019. Those events were more than four years before the application, well beyond the one-year time requirement in s. 34(1) of the Code. As set out in the Decision, the HRTO considered whether to accept a late application under s. 34(2) of the Code, correctly noting that the Tribunal had to be satisfied that the delay was incurred in good faith and no substantial prejudice would result.
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[22] The applicant further submits that there was a continuing contravention so the one-year time period does not apply. She submits that the discrimination that she experienced throughout her time at work at Sunnybrook and through the entire later process of her insurance applications, grievance process and other steps taken after she did not return to work meet the test for a continuing contravention. This submission overlooks the difference between the events here and a succession or repetition of discrete acts of discrimination of the same character. The last date of alleged discrimination at work at Sunnybrook was in 2019. The subsequent events do not amount to discrete acts of discrimination of the same character resulting in a continuing contravention.
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