The recent Ontario Court of Appeal decision in Jakupovic v. Intact Insurance Company, 2026 ONCA 651, serves as an important reminder that counsel should identify and address late notice of an Accident Benefits claim at the outset of a file.
The Court of Appeal confirmed that reporting a motor vehicle accident to an insurer is not the same as notifying the insurer of an intention to claim Accident Benefits under the Statutory Accident Benefits Schedule (“SABS”). For plaintiff counsel, however, the seven-day requirement is not the end of the analysis. Section 34 of the SABS may still provide relief where a claimant can establish a reasonable explanation for failing to comply with the seven-day notice requirement.
From Late Notice to Lost Claim
Jakupovic was involved in a motor vehicle accident on February 13, 2019. He contacted Intact Insurance the following day and reported both the accident and the property damage to his vehicle. Several discussions concerning the property damage followed.
It was not until December 12, 2020, that Jakupovic first advised Intact that he intended to claim Accident Benefits by submitting an Application for Accident Benefits (OCF-1).
Intact initially approved the application. However, on April 14, 2022, Intact advised Jakupovic that it was terminating his entitlement to Accident Benefits due to late reporting.
The LAT Draws the Line
Jakupovic brought the dispute before the Licence Appeal Tribunal (“LAT”). The LAT determined that he had failed to comply with s. 32(1) of the SABS because he did not notify Intact of his intention to claim Accident Benefits within seven days of the accident.
Jakupovic sought reconsideration. The LAT upheld its decision, and Jakupovic appealed to the Divisional Court.
A Short-Lived Victory at Divisional Court
The Divisional Court allowed the appeal, finding that Jakupovic had satisfied his obligations under s. 32(1) by reporting the accident to Intact.
Intact sought and obtained leave to appeal to the Court of Appeal.
The Statute Sets the Starting Point
The Court of Appeal held that s. 32(1) is neither ambiguous nor reasonably capable of supporting more than one meaning. It requires a person who intends to apply for Accident Benefits to notify the insurer of that intention. Requiring an insurer to question an insured to determine whether they were injured and intended to apply for Accident Benefits would be inconsistent with the plain language of the legislation.
The Court acknowledge the consumer-protection purpose of the SABS, but emphasized that statutory purpose cannot justify an interpretation that is inconsistent with the text. In other words, purpose cannot be used to rewrite a clear statutory requirement.
The seven-day requirement is not absolute in its operation. Section 32(1) permits notice “as soon as practicable after that day,” while s. 34 provides relief from non-compliance where the claimant has a reasonable explanation.
Section 34 therefore provides a separate avenue for relief: failure to comply with a time limit under the SABS does not disentitle the claimant to a benefit if the claimant can provide a reasonable explanation.
Reasonable Delay Requires a Reason
The difficulty for Jakupovic was that the Divisional Court treated notice of the accident itself as sufficient notice of an intention to claim Accident Benefits.
The Court of Appeal disagreed. The legislative scheme distinguishes between notice that an accident occurred and notice of an intention to take a particular action (in this case, to apply for Accident Benefits). Treating the two as equivalent would shift the obligation created by s. 32(1) from the insured to the insurer by requiring insurers to determine whether every person who reports an accident also intends to make a claim for Accident Benefits.
Jakupovic and OTLA, as intervenor, argued that relief from non-compliance should be available to Jakupovic under s. 34. However, the LAT had already considered Jakupovic’s explanation for the lengthy delay in its merits decision and found that explanation to be neither credible nor reasonable.
That finding was critical. The Court of Appeal held that the LAT’s findings concerning the reasonableness and credibility of Jakupovic’s explanation were factual findings which the Divisional Court was not entitled to revisit on an appeal limited to questions of law.
The Court of Appeal ultimately allowed Intact’s appeal and restored the LAT’s decisions.
Can the Late Claim be Saved?
For plaintiff counsel, Jakupovic does not mean that every late Accident Benefits claim is doomed. What it does mean is that the explanation for the delay matters, and it must be supported by the evidence.
Section 34 remains available where the claimant can provide a reasonable explanation for non-compliance. Simply asserting that the claimant did not know about the deadline will not, on its own, be enough.
The important distinction is between a delay that can be credibly explained by the claimant’s circumstances and supported by the evidence, and one that is unsupported, unexplained, or simply the product of inaction.
Build the Record, Not the Excuse
If you are advancing a claim involving late notice, start building the evidentiary record immediately.
First and foremost, give notice and submit the application as soon as possible. Then, identify the reason for the delay and determine whether that explanation accounts for the period of non-compliance. Gather the medical, factual, and other evidence necessary to support it.
Section 34 remains an important avenue for relief for claimants who can establish a reasonable explanation. But after Jakupovic, the practical lesson for plaintiff counsel is clear: the case for reasonable delay must be developed and proved before the LAT, not reconstructed on an appeal.
This is not the only recent update regarding the SABS. Don’t forget to check your coverage after the changes to Accident Benefits. Sam Davies tells you more here.
