Contact Us

Complimentary Issue Volume. 10 Issue. 1 – January 7, 2026

In The Spotlight

We begin the new year with the court considering a case in which the Respondent denied the Applicant’s claim for NEBs on the basis that the OCF-3 was submitted late. This denial occurred despite the Applicant having been found incapable of making decisions concerning her personal affairs. The Tribunal agreed with the Respondent, confirming same as well upon reconsideration. Ultimately, however, the court determined that the matter required a rehearing to assess whether the Applicant had a reasonable excuse for the delayed submission.

Virtual Training – Upcoming Dates!

Secure your seat for inHEALTH’s 2026 upcoming Virtual Training session!

• SABS Expedited: February 9-13, 2026
• BI Fundamentals: January 19-23, 2026​

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +

Does the Applicant Have a Reasonable Excuse for Late Filing of OCF3?

Late OCF3 Excused? – The Applicant Clouthier was struck by a car while riding a bicycle in February 2020, rendering her incapable of making medical decisions for a significant period of time. While at the hospital, Clouthier had a diminished level of consciousness, was unresponsive, and had to be intubated. When she regained consciousness, she exhibited behaviour consistent with a traumatic brain injury including decreased insight, severe cognitive impairments, agitation, restlessness, confusion, and aggressive behaviour. Throughout her hospital stay spanning from February 14 to November 6, 2020, her treatment providers considered her incapable of making decisions with respect to her care. In order to provide her treatment, the treatment team obtained consent from Clouthier’s mother.

OCF3 Submission

In late June 2020, Clouthier obtained counsel, who submitted a completed OCF3 (disability certificate) on her behalf July 8, 2020. Once received, Co-Operators accepted that Clouthier was entitled to non-earner benefits (NEB) and began funding these benefits effective July 8, 2020, until February 10, 2022, the maximum amount of time she was entitled to these benefits. However, Clouthier was not satisfied with the start date of the NEB, and applied to the Tribunal for benefits from March 12, 2020, through to July 7, 2020, arguing that 36(3) of the SABS, which requires the form to be submitted to receive NEB should be read to exclude incapable persons such as herself, given that she was physically and mentally incapable of signing the required forms.

Tribunal Decisions

The Tribunal though, found that Clouthier was not entitled to the additional NEB, given that she “failed to provide a disability certificate at any point prior to July 8, 2020 and, pursuant to s. 36(3) of the SABS, 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. The Tribunal denied Ms. Clouthier’s application, holding that s. 36(3) of the SABS did not exclude incapable persons from complying with that requirement… The Tribunal acknowledged that the SABS has a consumer protection mandate, should be given a large and liberal interpretation in a manner that promotes protections afforded to persons with disabilities, and that Ms. Clouthier had suffered severe injuries. However, the Tribunal went on to hold that s. 36(3) had clear wording that did not create an exception for incapable persons and that to create such an exception would run contrary to the intent of the legislature when creating the SABS.” This finding was upheld upon reconsideration.

In Clouthier v. Co-operators, Clouthier appeals these decisions and seeks judicial review. She raises four issues on appeal and, in her reply factum, also seeks relief from forfeiture. The four issues are as follows:

• (i) Whether the Tribunal erred in its interpretation and application of s. 36(3) of the SABS;

  (ii) Whether the Tribunal erred in failing to conduct any Charter or Human Rights Code analysis;

  (iii) Whether s. 36(3) of the SABS violates s. 15 of the Charter or the Human Rights Code; and,

  (iv) Whether the Tribunal erred in its interpretation and application of s. 34 of the SABS.

  The court found that it was only necessary to deal with the last issue regarding s. 34, noting that although “s. 34 was raised by at both the written hearing and the reconsideration, the Tribunal did not expressly deal with it. I find that it erred in that failure. It was incumbent upon the Tribunal to determine whether s. 34 had any application to Ms. Clouthier’s circumstances. On this appeal, the respondent is prepared to deal with the issue of the interpretation of s. 34, its applicability, and has made submissions regarding it. It has not raised any objection to it being entertained. I find it appropriate to consider this ground at this hearing. The failure of the Tribunal to consider it more fully will be relevant to the disposition.” The Tribunal had dismissed the earlier submission on the basis that it had been raised for the first time in reply, and therefore, the respondent did not have a chance to respond.

  Analysis

  The court noted that the two key provisions under consideration on this appeal were s. 36(3), which states: “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.”

  And

  “s. 34. This that states: “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.”

  ---

  
  Not Subscribed to inHEALTH’s Free Mailing List?

  

  Always Be In The Know! Get Instructive Tips, Insights and Analysis for free! Sign up and become an inHEALTH inSIDER.

  

  ---

  No Time Limit?

  Co-Operators submitted “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. 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.”

  S.34 Implications

  The court however found that “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. 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.”

  Time Limit Confirmed

  The court found that “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.” Further, “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.” Further, that “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.”

  The court concurred with the submission by the intervenor Ontario Trial Lawyers Association, that “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.”

  Absurdity Created?

  Co-Operators also respondent also submitted 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. To this, the Tribunal affirmed that “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.”

  Tomec

  The Tribunal further referenced that “ 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.”

  Conclusion

  The court concluded that “(t)o 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)”.

  Accordingly, the appeal was allowed, and the matter was remitted to the LAT before a different adjudicator to determine if Clouthier has a reasonable explanation under s. 34 and whether she is entitled to further non-earner benefits. Further to the agreement between the parties, no costs are awarded.
  

  ---

  Inform your position & present persuasive arguments. Include an Outcome Analysis Report (OAR) in your case evaluation complete with For/Against cases. Get an OAR – Available as a fee for service.