CITATION: Security National Insurance Company v. Kumar, 2018 ONSC 3556
DIVISIONAL COURT FILE NO.: DC-17-332 DATE: 20180611
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MARROCCO A.C.J.S.C., HARVISON YOUNG, MEW JJ.
BETWEEN:
Security National Insurance Company Appellant
– and –
Gurminder Kumar Respondent
Linda Matthews, Saro Setrakian, for the Appellant David Levy, Bob C. Jones, for the Respondent
HEARD at Toronto: May 28, 2018
Reasons for Decision
Harvison Young J.
[1] Security National appeals a decision of the Licence Appeal Tribunal (“LAT”) on the preliminary issue of whether the Appellant Mr. Kumar was a resident of Ontario at the time of his injury and was thus an “insured person” under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). In that decision, Adjudicator Lori Marzinotto determined that Mr. Kumar was a resident of Ontario and was entitled to benefits. The hearing on the merits (whether Mr. Kumar should receive benefits) has not been heard.
[2] Mr. Kumar was involved in a car accident on November 8, 2014 in Alberta. He sustained serious brain injuries in the accident. Formal cognitive testing revealed severe cognitive impairment. He was hospitalized until January 2015. He returned to Ontario the day after he was released from the hospital. Mr. Kumar had come to Canada on a student visa in 2010. In 2012, while he was a student at Humber College, he obtained a work permit, which he later renewed, and worked at a McDonald’s until 2014.
[3] On December 11, 2014, Mr. Kumar applied for accident benefits in Ontario under the Schedule. He has already received payments from Security National under an Alberta Accident Benefits Policy in the amount of $91,600.
[4] Security National denied Mr. Kumar’s application for accident benefits in Ontario on the grounds that Mr. Kumar was a resident of Alberta and that the accident happened in Alberta. Mr. Kumar then brought an application to the LAT seeking benefits under the Schedule and a finding that he was a resident of Ontario pursuant to the Schedule. The Adjudicator considered s. 3(1)(c) of the Schedule to be the relevant provision concerning accidents outside of Ontario.
[5] Section 3(1)(c) provides that an “insured person” is a person who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident if the accident occurs outside of Ontario. This question was referred to an Adjudicator, Lori Marzinotto, for determination.
[6] While neither the Insurance Act, R.S.O. 1990, c. I-8, nor the Schedule defines “resident,” the Adjudicator cited the Supreme Court of Canada’s decision in Thomson v. Minister of National Review, 1946 1 (SCC), [1946] S.C.R. 209, which determined that “resident” is a context-specific and highly-flexible term. The Adjudicator found (decision and reasons released on May 17, 2017) that on this basis, Mr. Kumar was a resident of Ontario at the time of the accident and thus was an insured person under the Act. The Appellant sought a reconsideration which was denied by Executive Chair Linda Lamoureux with reasons released on December 1, 2017.
Prematurity
[7] At the outset of the hearing, this Court raised the question of prematurity with counsel. All counsel expressed the view that this matter is not premature because the issue of residence is essentially the only issue in the circumstances of this case. While recognizing the principle that parties’ should generally complete the recourses open to them, they were all of the opinion that in cases such as this one, a full hearing on the merits would be unnecessarily expensive and time consuming for the parties in light of the fact that both sides agree that the resolution of this case most likely turns simply on the residence of Mr. Kumar at the time of his accident.
[8] The Court agreed to hear the appeal and consider the issue of prematurity as part of its deliberations. We are grateful to counsel for submitting some authority that illustrates the reality that this court does, at least on occasion, hear appeals from tribunals on specific preliminary issues that do not constitute final determination on the merits: see Certas Direct Insurance Company v Gonsalves, 2011 ONSC 3986, Security National Insurance Company v. Hodges 2014, ONSC 3627, Guarantee Company of North America v Dong Do 2015 ONSC 1891. Having considered those authorities and the circumstances of the present case, we agree with counsel that it is appropriate to exercise our discretion in favour of hearing the matter despite the fact that there has not been a full determination on the merits of the case.
[9] As Lederer J. stated in Certas Direct Insurance Company v. Gonsalves paras. 6ff, the general practice of this Court is not to interfere in the interlocutory decisions of the many boards and tribunals at work in the province of Ontario. In that case, the Court decided to exercise its discretion to proceed with the judicial review hearing. In the circumstances of that case, the Divisional Court was of the view that hearing the application was necessary to ensure procedural fairness to the insurer in that case. Lederer J. noted that failing to hear the matter before it would have led to fragmentation and delay- precisely the policy concerns underlying the general reluctance to hear interlocutory decisions.
[10] In this case, counsel emphasized that the central issue is that of Mr. Kumar’s residence and specifically whether the decision finding that he was a resident of Ontario at the time of his accident was reasonable. That was the only issue before the adjudicator. If the matter were to be sent back at this point, it would require a redetermination and the cost and delay inherent in a full hearing that is unlikely to be required in the circumstances of this case. As in the Certas decision cited above, it would contribute to fragmentation and delay and thus undermine the policy rationales of at the root of the prematurity concern.
[11] Accordingly, the issue of the appeal with respect to the LAT’s determination that the Appellant was a resident of Ontario at the time of his accident will be addressed. For the following reasons, I would dismiss the appeal.
The Statutory Provision in Issue
[12] Section 3. (1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010, O Reg 34/10,defines “insured person” as follows:
- (1) […] “insured person” means, in respect of a particular motor vehicle liability policy,
[…] (c) a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident, if the accident occurs outside Ontario [emphasis added];
Standard of Review
[13] Although the Appellant submitted in its factum that the applicable standard of review is correctness, it acknowledged that in oral argument that the applicable standard is reasonableness: see Intact Insurance Company v. Allstate Insurance Company of Canada, 2016 ONCA 609, and Belairdirect Insurance v. Dominion of Canada General Insurance Company, 2017 ONSC 367. Thus, the question is whether the LAT decision that the Respondent was a resident of Ontario at the time of his accident was reasonable.
Analysis
[14] The Appellant raises a number of arguments in support of its argument that the LAT decision was wrong and unreasonable.
[15] First, it submits that the LAT failed to apply the clear language of subsection 3(1)(c) of the Schedule which provides only for a 60 day grace period for persons who have left Ontario to live elsewhere.
[16] Second, it argues that the term “resident” in the Schedule requires a “degree of physical presence” to be established in Ontario, distinct from “ordinarily resident”. Third, it submits that the LAT failed to consider evidence relevant to the test for residence, including the fact that Mr. Kumar was living and working in Alberta at the time of the accident and was required by the terms of his visa to do so. I will address these submissions in turn.
Did the LAT misinterpret s.3(1)(c) of the Schedule?
[17] With respect to the first submission, the Appellant argues that a person cannot be “an insured person” under the Schedule if, like Mr. Kumar, he or she has been out of Ontario for more than 60 days. The Respondent argues that the 60 day period may extend the period during which a person is a resident of Ontario. In other words, the Appellant submits that the definition must be interpreted narrowly while the Respondent submits that is should be interpreted broadly and liberally. The Appellant submits that the Tribunal “failed to apply the clear language of s.3(1)(c)of the Schedule such that the decision falls outside the range of reasonable outcomes”.
[18] I do not agree that the 60 days operates as the maximum period during which a person can be out of Ontario while still falling within the definition of “insured person”. As the LAT observed, the provisions do not define residency. As the Appellant recognizes, there is no case law addressing the interpretation of s.3(1)(c) and of the effect of the 60 day period mentioned in that provision. For that reason, the LAT followed the jurisprudence on the question of residence. However, it is clear from the case law in general that the courts have not applied this term restrictively as submitted by the Appellant. Rather, the courts have interpreted “residence” in insurance legislation flexibly and in a context specific manner for many years, citing the tax case of Thomson v. Canada (Minister of National Revenue), 1946 1 (SCC), [1946] S.C.R. 209, and this is what the LAT did in the present case.
[19] While there is no authority that specifically addresses the 60 day period set out in s. 3(1)(c), the Ontario Financial Services Commission (“FSCO”) in the case of Cruz, relied on by the Appellant, was required to apply a predecessor version of s. 3(1)(c) . This provision, s. 2(c) of The Statutory Accident Benefits Schedule- Accidents on or after November 1, 1996, Ontario Regulation 303/96, 505/96, 551/96 and 303/98 and defined an “insured person” as
…a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at some point during the 60 days before the accident….
[20] While FSCO in Cruz did not find that the Appellant Ms. Cruz was a resident of Ontario at the time of her accident, it is clear from the decision that the Arbitrator applied the broader test of ordinary residence. He noted, as did the LAT in the present case, that residency was not defined under the Act or Schedule and referred to case law arising in a number of areas including divorce (MacPherson v MacPherson (1977), 1976 854 (ON CA), 13 O.R.(2d) 233 and taxation (Thomson), quoting Estey J. in Thomson at page 12 of his decision:
One is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually, or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. (Cruz, at 12)
[21] In Cruz, FSCO held in Cruz that physical presence or actual residence alone is not determinative of residency under the Schedule and that there are several factors to consider including one’s intention and where one “regularly, normally or customarily lived”. There, a Mexican national residing temporarily in Ontario at the time of a car accident was found not to be a “resident” of Ontario.
[22] The Appellant submits that the use of the term “resident” in the Schedule should be interpreted to mean “actual” not “ordinary” residence, citing Young v. Ontario (Minister of Finance), 2003 23640 (ON CA), [2003] O.J. No. 4832 (Ont.C.A.).
[23] In Young, MacPherson J.A., writing for the Court, did draw a distinction between Ms. Young’s actual and ordinary residence: see paras 25-26. That distinction does not assist the Appellant, in the present case, however, because the applicable legislation in Young used the term “ordinarily resides”: see s. 25 Motor Vehicle Accident Claims Act, R.S.O. 1990, c.M-41, s.25(1). I do not agree that the absence of the adjective “ordinarily” from s.3(1)(c) means that the adjective “actually” should be substituted. The fact that all the caselaw to which the court was referred considers a broad range of facts and circumstances as relevant to the supports the view that generally, the notion of “resident” must be determined broadly and flexibly and not narrowly and restrictively as the Appellant submits.
[24] Similarly, the facts were very different in Cruz, where the Plaintiff had lived in Mexico for her whole life, was employed in Mexico by a Mexican company which paid for her to come to Toronto August to December on a visitor’s visa to study English. She had a return ticket just before Christmas and her visa was to expire at the end of December. She was to return to Mexico to head a new department with her employer. She was injured while traveling in Quebec as a passenger in a vehicle driven by a friend. The point is that despite a “60 day” provision identical to s.3(1)(c), FSCO did not apply a narrow “actual” resident test which the Appellant submits that LAT should have done in the present case.
[25] The Appellant also submits that the 60 day limit is clear and the provision is “absurd” if it is read broadly as the Respondent suggests. I disagree. First, as indicated above, it is clear that the term residence or resident has been flexibly interpreted. The Appellant suggests that s.3(1) means that as soon as one has been out of Ontario for 60 days, it is not possible to be a resident at all, whatever one’s intentions are about returning or where one’s ties are. That flies in the face of the flexible, context specific approach that has been repeatedly taken to the the notion of residence in the jurisprudence for many years and over many areas of law. These cases invariably cite Thomson, which remains the leading case.
[26] Second, I do not agree that the wording is “clear” in dictating this narrower reading, given the wording “…who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident”. Rather, it extends coverage in situations where there is an intention to re-establish a permanent and exclusive residence somewhere else, but an accident takes place within 60 days. For example, if a family moves entirely from Ontario to Alberta in January, begins new jobs, sells their Ontario home and registers the children in school with all indicators that they will not return to Ontario to live, the 60 day period will extend their Ontario residency from the time of the move. On the other hand, if the plan is that the family will spend, for example, a sabbatical year in Alberta and return resume their former lives in Ontario, they would likely be found to be “resident” of Ontario for the entire time, despite an absence of more than 60 days.
[27] In short, given the history of the broad interpretation of the term “resident”, and the fact that this and similar insurance provisions have applied this broad, contextual and fact-specific concept of “resident”, I see no basis for finding that the LAT unreasonably interpreted s. 3(1)(c) of the Schedule.
Does the term “resident” in the Schedule require a “degree of physical presence” to be established in Ontario, distinct from “ordinarily resident”?
[28] The Appellant submits that as the Respondent was not actually present in Ontario between the time of his departure for Alberta on August7, 2014 until his accident there on November 8, 2014, and had been living and working in Alberta for more than 60 days, he did not fulfill the “physical presence” requirement of s. 3(1)(c). This submission has, already been addressed in the course of the preceding paragraphs. As I have found, the LAT correctly interpreted s.3 (1)(c) to require a consideration of ordinary rather than actual residence as the caselaw has consistently done.
Did the LAT failed to consider evidence relevant to the test for residence?
[29] In particular, the Appellant submits that the LAT failed to take account of the fact that Mr. Kumar was living and working in Alberta at the time of the accident and was required by the terms of his visa to do so.
[30] In my view, this submission fails. Read as a whole, it is clear that the LAT was alive to all the evidence before it. Moreover, the Reconsideration specifically addressed this submission which was made before her. The Executive Director noted that the Appellant had submitted that the “Tribunal ignored and did not accord adequate weight to the following evidence”:
• Inconsistencies relating to Facebook posts and the relationship with H.K.;
• Information that G.K. was paying rent in Alberta and had signed a lease;
• The purchase of a one way flight to Alberta;
• G.K.’s employment situation in Alberta; and
• The non-permanent nature of G.K’s immigration status. (see Reconsideration Reasons, para. 26)
[31] On Reconsideration, the Executive Chair rejected these arguments, noting that in essence, the Appellant was disagreeing with findings of fact and specifically with the weight that the LAT accorded to some of the evidence. She found that the Tribunal had accepted the Respondent’s evidence that he intended to stay in Ontario and that Alberta was not his residence on a permanent basis. In so finding, the LAT noted that the Respondent had friends and a fiancée in Ontario, that he maintained an Ontario driver’s licence and an Ontario cell phone number even while in Alberta, that he continued to pay rent in Ontario while in Alberta, and that he returned to Ontario immediately upon his discharge from hospital. The LAT did not accept that the evidence supported the Appellant’s position that Mr. Kumar had signed a lease in Alberta.
[32] The LAT decision reviewed the evidence thoroughly, including the Facebook posts and the Appellant’s immigration status. With respect to the Facebook posts, the Appellant submits that these suggest that the Appellant and his fiancée had broken up before the accident, eliminating this Ontario tie. The LAT rejected that interpretation, finding that they did not end their relationship when he left for Alberta. There was ample evidence to ground that finding in the record, and it is clear that she considered all of the evidence on that issue. After considering all of the evidence, the LAT concluded that based on the totality of the evidence before it, Mr. Kumar was a resident of Ontario at the time of the accident. Although she highlighted a number of specific factors which led to this conclusion, she clearly reviewed all of the evidence. Her conclusion was clearly open to her on the evidence, and she was alive to the factors which the Appellant argues should have led to the conclusion that he was not a resident of Ontario at the time of the accident. As the Executive Director observed, the LAT is not required to explicitly address all the evidence. The Appellant, in effect, asks this court to re-weigh the evidence that was before the LAT and which was also addressed in the Reconsideration decision. That is not the role of this Court on appeal.
[33] The Appellant submitted in argument before this Court that the LAT had misunderstood its arguments in relation to immigration, stating that it had not meant to suggest that the Appellant was here illegally but just that he was here temporarily. In my view, even if the LAT misunderstood the argument made, its application of the point was well within the range of possibilities open to it. Although it made the point that the Appellant was “authorized by law” to be in Canada, the LAT went on to make the point that the case law is clear that a person need not have permanent resident status to be a resident, citing Parkes v Heiberg, 1992 CarswellOnt 3426 (Ont.Court of Justice, Gen.Div.). In that case, Mullen J. applied a similar flexible test of residence, finding that the Plaintiff was resident in Ontario at the time of his accident. In that case, the Plaintiff was a seasonal farm worker who had spent June-December working in Ontario in each of the three years before the accident. Mullen J. found that he was ordinarily resident of Ontario, noting that “residence” is not an exclusive concept: see Thomson at p. 19; see also Parkes v. Heiberg at para.17.
[34] There was, in my view, nothing unreasonable in the LAT’s failure to treat the Appellant’s immigration status as an indicator of a lack of permanent connection with Ontario. He had come to Canada on a student visa in 2010. After his graduation from Humber College with a Business Management Degree in 2013, he applied for a work permit. This pattern is as consistent with someone who hopes, in the longer term, to remain in Canada as with the suggestion that he will have to leave, particularly when considered in combination with the fact that he was engaged to a woman who also lived in Ontario.
Conclusion
[35] For the foregoing reasons, the appeal is dismissed. The LAT decision was intelligible, justified and transparent, and its conclusion that Mr. Kumar was a resident of Ontario at the time of his accident fell well within the range of possible outcomes on the basis of the record before it.
Costs
[36] Further to the agreement that costs be fixed in the amount of $15,000, costs in the amount of $15,000 are payable by the Appellant to the Respondent.
HARVISON YOUNG J.
I agree _______________________________
MARROCCO A.C.J.S.C.
I agree _______________________________
MEW J.
Date of Release:
CITATION: Security National Insurance Company v. Kumar, 2018 ONSC 3556
DIVISIONAL COURT FILE NO.: DC-17-332 DATE: 20180611
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MARROCCO A.C.J.S.C., HARVISON YOUNG, MEW JJ.
BETWEEN:
Security National Insurance Company Appellant
– and –
Gurminder Kumar Respondent
REASONS FOR JUDGMENT
Harvison Young J.
Date of Release: June 11, 2018