Neutral Citation: 1994 ONICDRG 31
File No. A-004083
ONTARIO INSURANCE COMMISSION
BETWEEN:
MICHAEL RIDGLEY
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant's father, Duane Ridgley, died in a motor vehicle accident on July 10, 1992. Duane Ridgley was insured by Zurich Insurance Company ("Zurich"). The Applicant, Michael Ridgley, was born on November 30, 1992. He applied for a dependant's death benefit from the Insurer, payable under Ontario Regulation 6721. Zurich took the position that the Applicant could not be considered a dependant of his father at the time of the accident, as he was not yet born. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act.
The issue in this hearing is:
Is Michael Ridgley entitled to receive a death benefit as a surviving dependant under section 11(2) of the Schedule?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is not entitled to receive a death benefit under the Schedule.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
Hearing:
The hearing was held in Toronto, Ontario, on August 9, 1993, before me, Frederika Rotter, Senior Arbitrator.
Present at the Hearing:
Applicant's Mother:
Lisa Diane Ridgley
Applicant's Representative:
Joseph Pileggi
Insurer's Officer:
Mark Sones
Exhibits:
Exhibit 1
Canada Pension Plan Notice of Entitlement
Exhibit 2
Agreed Statement of Facts
Cases Referred To:
Chapman v. C.N.R. et al.. 1943 CanLII 355 (ON HCJ), [1943] 2 D.L.R. 98
Dehler v. Ottawa Civic Hospital et al. (1979), 1980 CanLII 1878 (ON CA), 25 O.R. (2d) 748 (H.C.J.)
Fitzsimonds v. Royal Insurance Co of Canada (1984), 1984 ABCA 7, 7 D.L.R. (4th) 406
Orell Colliery Co. v. Schofield. [1907] A.C. 139
Stephen Salmon v. Toronto Transit Commission (Markel Insurance), June 29, 1992, OIC Appeal File No. P-000235
Scrimshaw v. Constitution Insurance Co. of Canada (1979), 1979 CanLII 2109 (ON HCJ), 26 O.R. (2d) 371
Seed et al. v. Delhey (1989), 1989 CanLII 4181 (ON HCJ), 70 O.R. (2d) 692
Smith et al. v. Ins. Corp of B.C . (1980), 1980 CanLII 584 (BC SC), 21 B.C.L.R. 317
Tremblay v. Daigle. [1989] 2 S.C.R. 566
Vasey et al. v. Economical Mutual Insurance Co. (1986), 1986 CanLII 2558 (ON HCJ), 54 O.R. (2d) 692
Evidence and Findings:
The parties submitted an agreed statement of facts (Exhibit 2) which indicates that Duane Ridgley was killed in an automobile accident on July 10, 1992. He was insured under an automobile insurance policy issued by Zurich.
At the time of his fatal accident, Duane Ridgley had been married to Lisa Ridgley for six years. The couple had one son, Steven, born February 2, 1990. Lisa Ridgley was pregnant with their second child.
The Ridgleys had purchased Optional Benefit 1, which provides higher benefits under the Schedule. As a result of Duane Ridgley's death, Zurich paid $50,000 to his surviving spouse, Lisa Ridgley, and $20,000 to Steven Ridgley as a surviving dependant, under section 11(2) of the Schedule.
Michael Ridgley was born on November 30, 1992, 143 days after his father's death and is the natural child of Duane and Lisa Ridgley. Exhibit 1, a copy of a Notice of Entitlement from the Canada Pension Plan, indicates that orphan's benefits were granted to both Michael and Steven Ridgley.
A death benefit under section 11(2) of the Schedule has been claimed on behalf of Michael Ridgley. The relevant subsection states:
11(2) If, as a result of an accident, an insured person dies within the benefit period set out in subsection (3), the insurer will pay with respect to the insured person, if Optional Benefit 1 has been purchased,
(c) $20,000 to each of his or her surviving dependants who was a dependant at the time of the accident.
It is claimed that Michael Ridgley is a surviving dependant of Duane Ridgley and entitled to a death benefit under section 11(2)(c) of the Schedule. The Applicant relies on a line of legal cases that have created the "legal fiction" that an unborn child subsequently born alive is to be accorded the same treatment as a living child, for the purpose of asserting property rights.
It was argued that it would be anomalous and unjust to deny Michael Ridgley death benefits under the Schedule, since he has suffered the same loss as his brother as a result of the motor vehicle accident, and is equally as deserving of compensation as his older brother.
The Insurer submits that an unborn child cannot be considered a surviving dependant "who was a dependant at the time of the accident", and cannot assert any right to a benefit.
Further, the Insurer relies on section 3(2) (the "Interpretation" section of the Schedule) which provides:
3(2) For the purposes of this Schedule, a person is a dependant of another person if the person is principally dependent for financial support on the other person or the other person's spouse.
The Insurer contends that Michael Ridgley cannot be considered a dependant of Duane Ridgley since he was not a "person" at the time of the accident.
The question of the rights and "personhood" of unborn children has been frequently adjudicated. Dehler v. Ottawa Civic Hospital et al. (1979), 1980 CanLII 1878 (ON CA), 25 O.R. (2d) 748 (H.C.J.) reviews and summarizes much of the jurisprudence regarding the legal position of the unborn child. In that case, Robins J. stated:
In none of the decisions to which I have referred or of which I am aware, has the foetus been regarded as a person before its birth. In short, the law has set birth as the line of demarcation at which personhood is realized, at which full and independent legal rights attach, and until a child en ventre sa mère sees the light of day it does not have the rights of those already born.
Despite the fact that unborn children cannot legally be considered "persons", the Applicant relies on case law which affirms that after its birth, an unborn child can assert property rights. This "legal fiction" was originally developed to assist in the construction of wills and other testamentary documents, and to assert claims for damages, in cases of wrongful death. It was subsequently applied, in England, in Orell Colliery Co. v. Schofield, [1907] A.C. 139, to interpret a workers' compensation statute for the benefit of an unborn child, later born alive. Orell Colliery has been followed in a number of Canadian workers' compensation jurisdictions, including Ontario: Chapman v. C.N.R. et al, 1943 CanLII 355 (ON HCJ), [1943] 2 D.L.R. 98.
The "legal fiction" approach was also followed in the case of Seed et al. v. Delhey (1989), 1989 CanLII 4181 (ON HCJ), 70 O.R. (2d) 692. That case involved a claim for damages under section 61 of the Family Law Act 1986, S.O. 1986, c. 4, on behalf of the infant plaintiff, for the wrongful death of her father. The defendant pleaded that the plaintiff was born one month and 19 days after her father's death and therefore could not maintain an action for damages under section 61.
The relevant portion of section 61 of the Family Law Act, 1986, provides:
If a person is injured or killed...children...are entitled to recover their pecuniary loss...and to maintain an action for the purpose in a court of competent jurisdiction.
In Seed, Chadwick J. reviewed many of the cases dealing with the issue of compensation for unborn children. He held:
It would appear to be inequitable that a child who had been conceived before the death of his or her father and born alive would not be entitled to the same rights and benefits of his or her brothers and sisters. In applying the fiction, the legislators undoubtedly were aware of the property rights which had developed over the years to protect the child "en ventre sa mere" and if they had intended to exclude this class of child, they would have specifically said so in the legislation.
To summarize, in many cases judges have assumed that the Legislature is aware of the "legal fiction" in favour of unborn children subsequently born alive, and in the absence of specific words excluding them, benefits are granted to these children.
Thus the "legal fiction" has been applied in certain claims for benefits under contracts of insurance, most notably in the Alberta case, Fitzsimonds v. Royal Insurance Co of Canada (1984), 1984 ABCA 7, 7 D.L.R. (4th) 406. In that case, at page 410, McDermid J.A. referred to "the legal fiction of treating the unborn child as born at the time of the death of the deceased" and accordingly proceeded to interpret the Alberta Insurance Act, R.S.A. 1970, c. 187 in a manner consistent with this "legal fiction". He cited a British Columbia case, Smith et al. v. Ins. Corp of B.C. (1980), 1980 CanLII 584 (BC SC), 21 B.C.L.R. 317, which held that, in the absence of specific provisions in the British Columbia Automobile Insurance Act and Regulations excluding unborn children from a death benefit, they were entitled to the benefit.
McDermid J.A. concluded that "... nothing in the [Alberta] statute or regulations...indicates that a child en ventre sa mère should be treated differently than a child living at the date of the death of her father".
In so ruling, McDermid J.A. disagreed with an Ontario decision on this subject, Scrimshaw v. Constitution Insurance Co. of Canada (1979), 1979 CanLII 2109 (ON HCJ), 26 O.R. (2d) 371.
Scrimshaw is a case decided under the Ontario insurance legislation then applicable, which provided a death benefit to surviving dependants, including a surviving spouse or dependant child. The legislation defined a "dependent child" as "a child under the age of 21 years and who resides with and is wholly dependent upon the head of the household for financial support".
Honey, Co. Ct. J., in deciding Scrimshaw, had regard to the generally accepted rule of statutory interpretation, that statutes must be interpreted in accordance with the ordinary meaning of the words used and the rules of grammar, unless to do so would be manifestly absurd, repugnant, or inconsistent with the intention of the legislature.
He went on to find:
The purpose of the benefits set out in Sch. E is to compensate dependants who are deprived by the accident of a right to support from the deceased person. Compensation is provided to "surviving dependants" in the ordinary sense of those words, and this result does not lead to any absurdity, repugnance or inconsistency with the remaining provisions of Sch. E. Indeed, it does seem to me that if I accept Mr. Templeman's argument, I would be amending the statute to provide for a benefit to an additional class or group, namely, unborn children, when such result is not, on the basis of the words used by the Legislature, within the contemplation of that body.
If the Legislature intended the words "survivor" or "dependant" to have an extended meaning it would have so provided in the legislation, as it did in the definition of "child" in the Succession Law Reform Act, 1977 (Ont.) c. 40.
(at page 375 ff 377)
The reasoning in Scrimshaw was followed in Vasey et al. v. Economical Mutual Insurance Co. (1986), 1986 CanLII 2558 (ON HCJ), 54 O.R. (2d) 692, which distinguishes Fitzsimonds (supra), on the basis that the applicable terms and definitions are different. In Vasey, it was noted that the definition of "dependant" in the Ontario Insurance Act had been changed to "a person under the age of 18 years who resides with and is principally dependant upon the head of the household or the spouse of the head of the household for support" (emphasis added). McTurk D.C.J. held that the infant plaintiff in Vasey was not a "dependant" within the meaning of the legislation "in that he was not a person at the date of the accident, nor was he residing with or principally dependant upon the head of the household". Judge McTurk found (at p. 268) that any benefits paid under the Ontario legislation must be based on the claimant's status as at the date of the accident of the deceased.
This reasoning is supported by the wording currently under consideration, which now contains the specific provision that a benefit is payable only to a surviving dependant "who was a dependant at the time of the accident".
I agree that, intuitively, it may seem unfair that Micahel Ridgley is denied a benefit for a loss which affects him fully and equally as his older brother. Nevertheless, I conclude that under the decided cases in Ontario and the wording in the Schedule, Michael Ridgley cannot be considered a surviving dependant "who was a dependant at the time of the accident", nor can he be considered a "person" who was a dependant of another person for the purposes of the Schedule.
I exercise my discretion to award the Applicant his expenses in respect of the arbitration hearing.
Order:
The Applicant is not entitled to receive a death benefit under section 11(2) of the Schedule.
The Applicant is entitled to his expenses incurred in respect to the arbitration.
April 13, 1994
Frederika Rotter
Senior Arbitrator
Date