Clouthier v. Co-Operators General Insurance, 2025 ONSC 6798
The Insured was rendered incapable of making medical decisions for a lengthy period of time after being struck by a car. As a result, the Insured was unable to file the form for non-earner benefits, in accordance with the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABS”), until some 5 months after the accident. The Insurer provided benefits only from the date it received the form and declined to backdate the benefits to the time of the accident. The LAT upheld the Insurer’s position. The Insured appealed, arguing that the provision of the SABS, which requires the form to be submitted to receive non-earner benefits, should be read to exclude incapable persons. The Divisional Court agreed, pointing to s. 34 of SABS which provides relief against time limits if the person has a reasonable explanation. The Court said: “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. And it did not. It enacted s. 34 to apply to the provisions found in Part VIII, including s. 36(3).” The Insured’s appeal was granted and the case sent back to the LAT for a hearing before a new adjudicator.