Neutral Citation: 1994 ONICDRG 96
File No. A-007196
ONTARIO INSURANCE COMMISSION
BETWEEN:
LEONARD ROBINSON
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant's son, Shawn Robinson, was tragically killed in a motor vehicle accident on August 28, 1990. Leonard Robinson makes this application, under the provisions of Ontario Regulation 6721, on behalf of his granddaughter, Valerie Brilhante, daughter of Shawn Robinson and Bernadette Brilhante. The Insurer has paid no death benefit for the benefit of Valerie Brilhante. The parties participated in mediation but were unable to resolve their dispute. Mr. Robinson then applied for arbitration.
The issue in this hearing is:
- Is Valerie Brilhante entitled to a death benefit under the provisions of section 11(1) of the Schedule? If so, what is the correct amount of death benefit to which she is entitled?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Valerie Brilhante is entitled to receive $35,000 in death benefits under the provisions of section 11 of the Schedule, plus interest as provided in section 24 of the Schedule.
The Applicant is entitled to his expenses incurred in respect of the arbitration.
Hearing:
The hearing was held in North York, Ontario, on June 14, 1994, before me, K. Julaine Palmer, arbitrator. Written submissions from the parties were also received after the hearing, dated June 17, 1994, June 28, 1994, July 4, 1994, July 5, 1994, and July 6, 1994.
Present at the Hearing:
Applicant:
Leonard Robinson
Applicant's Representative:
Antonio Azevedo Barrister and Solicitor
Insurer's Representative:
Jack F. Fitch Barrister and Solicitor
Insurer's Officer:
Mark Sones
Witness:
Bernadette Brilhante
The parties filed three exhibits at the hearing, as well as written submissions. The cases referred to by counsel are listed at Schedule A to this decision.
Evidence and Findings:
Background
The facts in this matter are not seriously in dispute. The issue which has been raised is a question of interpretation of the Schedule.
Shawn Robinson was born in 1968, the son of Fern and Leonard Robinson. In 1984, when Shawn was 16, he met Bernadette Brilhante, who was then 14 years old. Shawn and Bernadette dated and approximately one year later Bernadette became pregnant. In the middle months of her pregnancy, Bernadette moved into the Robinson's home and lived there with Shawn. She gave birth to Valerie on March 28, 1986, and continued to live with the Robinsons for a further eight months. Bernadette Brilhante then moved with Valerie to her own parents' home, and then into her own apartment. Shawn Robinson and Bernadette Brilhante continued to have a close relationship until 1988. They discussed marriage on various occasions.
Bernadette Brilhante testified that her relationship with Shawn Robinson ended, in her mind, sometime in 1988. In February 1989, Rod Lefebvre moved into Bernadette Brilhante's apartment. Their son, Randall Lefebvre was born on October 14, 1989. At the time of the motor vehicle accident on August 28, 1990, Bernadette Brilhante and Rod Lefebvre were still living together in a spousal relationship.
Bernadette Brilhante received no inheritance after Shawn Robinson's death and is not making any claim as his spouse. She testified that she received social assistance to support herself and Valerie from 1986 onward. When Rod Lefebvre began living with her, the allowance which Bernadette Brilhante received was reduced by an amount equal to half the rent, because Rod Lefebvre paid half the rent. Mr. Lefebvre was working at this time as an apprentice plumber. Bernadette Brilhante testified that occasionally Shawn Robinson would buy clothes for Valerie or would give Bernadette small amounts of cash, for example $40.00 every two weeks. The cash payments stopped once Bernadette Brilhante began dating Rod Lefebvre.
I am satisfied by the evidence that at the time of