Neutral Citation: 1995 ONICDRG 195

File No.: A-014182

BETWEEN:

KYLE LANDON LUPIEN

(MINOR) TRISTEN PHILIP LUPIEN

JEUNESSE MICHELE LUPIEN

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

DECISION

The Applicants are the children of Michele Brouillette who was killed in a motor vehicle accident on or about September 25, 1992. Mr. David Rhyner, her common law spouse at the time of the accident, received a workers' compensation lump sum payment and monthly survivorship benefits pursuant to section 35(1)(a) and section 35(4)(v) of the Workers' Compensation Act. The three minor applicants are children of the deceased from a previous marriage. They applied for death benefits pursuant to section 11(2) of Ontario Regulation 672.¹ The Insurer refused payment, taking the position that since there was entitlement to workers' compensation benefits, section 20 of the Schedule precluded payment of the death benefits found in section 11(2) of the Schedule.

The issue in this hearing is:

Does the payment of survivor benefits pursuant to sections 35(1)(a), 35(4) and (5) of the Workers' Compensation Act to Mr. Rhyner preclude the Applicants from receiving death benefits pursuant to section 11(2) of the Schedule?

Payment of workers' compensation survivor benefits to Mr. Rhyner does not preclude the Applicants from receiving death benefits pursuant to section 11(2) of the Schedule.

The hearing proceeded by way of an agreed statement of facts, with oral argument in Toronto, Ontario, on Tuesday, November 21, 1995, before me, M. Guy Jones, Arbitrator.

Present at the Hearing:

Applicant's

Bruce Latimer

Representative:

Barrister and Solicitor

Insurer's

Lee Samis

Representative:

Barrister and Solicitor

The Facts:

This matter proceeded by way of an agreed statement of facts, a copy of which is attached as Schedule "A" to this decision. The basic facts, however, are as follows:

Michele Brouillette was killed in a motor vehicle accident on September 25, 1992. At the time of the accident, she was the common law spouse of Mr. Rhyner, with whom she lived with her three children, Kyle Landon Lupien, Jeunesse Michele Lupien and Tristen Philip Lupien. These three children are the Applicants in this matter. At the time of the accident, Mr. Rhyner had a valid policy of insurance with General Accident Assurance Company, which provided that in the event that an insured person died in a motor vehicle accident, the Insurer would pay $20,000 to each of his or her surviving dependants, at the time of the accident. The wording in the policy mirrors the wording of section 11(2) of the Schedule. At the time of the accident, the deceased, Michele Brouillette was an "insured person" as defined by the policy and the Schedule. Mr. Rhyner, as common law spouse, as defined in the Workers' Compensation Act, received a lump sum survivorship benefit pursuant to section 35(1)(a) of the Workers 'Compensation Act, and a monthly survivorship benefit pursuant to sections 35(4) and (5) of the Workers' Compensation Act. The monthly pension benefit amounted to 90% of Michele Brouillette's net average earnings at the time of her death, and is to continue until her youngest child reaches the age of nineteen years. The payments are considerably higher than they would have been had Michele Brouillette not been survived by children. I note that the children of Michele Brouillette no longer live with Mr. Rhyner, but rather with their maternal grandparents. None of the children have received, nor are they entitled to receive, any of the workers' compensation benefits paid as a result of Michele Brouillette's death.

Applicant's Position:

It is the position of the Applicants that the purpose of the death benefit set out in section 11 of the Schedule is to compensate dependants who are deprived by the accident of a right to support from the deceased person.²

Section 11(2)(c) of the Schedule states:

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,

Counsel for the Applicant takes the position that the three children are clearly surviving dependants of the spouse and as such should receive the death benefits in question. He further takes the position that section 20 of the Schedule does not apply in this particular instance.

Section 20 of the Schedule states:

The insurer will not pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers compensation law or plan.

The Applicant's counsel submits that since the three children are not "named insureds" but rather dependants, and not entitled to receive benefits under the Worker's Compensation Act, section 20 does not apply to them. They should therefore receive the death benefits payable under section 11(2). Counsel for the Applicants then went on to cite a number of cases setting out the basic rules of construction that should be used to interpret section 20 in the event that the section is found to be ambiguous. Essentially, he took the position that:

The legislation should be considered remedial and therefore be given a wide and liberal interpretation;
Exclusionary clauses, such as section 20 of the Schedule should be given a narrow interpretation;
Where words may be given two interpretations, the more reasonable one, which produces a fair result, must be taken as the interpretation which would promote the intention of the parties; and
In the case of ambiguity when interpreting the words of an insurance policy which mirrors the words of a statute or regulation, the interpretation more favourable to the insured should govern.³

Insurer's Position:

Counsel for the Insurer takes the position that section 20 bars the surviving dependants from recovering death benefits under the Schedule. It is sufficient, in his view, to look at the intention of this section as well as the Schedule as a whole, and then give meaning to that intention. Only if there is ambiguity and the meaning is not clear, should one resort to simply giving the interpretation which is most favourable to the insured. The Insurer submits that section 20 was inserted in the Schedule to reflect the fact that the legislature intended the motor vehicle insurer to provide the statutory accident benefits as the insurer of the last resort. In other words, the parties were to look to all other possible sources of financial support, such as the Workers' Compensation Board, and only if appropriate benefits were not available, should recourse be taken under the Schedule.

It is the Insurer's position that the "insured person" in this matter was the deceased and that as a result of her death, while working, entitlement to benefits from the Workers 'Compensation Act arose. The mere fact that the common law husband rather than the deceased actually received the benefits is irrelevant. He also submitted that sections 53(4) and (5) of the Workers' Compensation Act clearly contemplates providing support for dependants of the deceased in that the amount of the benefits to the common law spouse is far greater because there are children than if there were no children. In addition, the duration of the monthly payments is tied to the age of the youngest child.

Analysis and Findings:

In order to arrive at a conclusion in this matter, it is necessary to look at the legislation as well as to analyse section 20 of the Schedule in detail.

There is little doubt that the statutory accident benefits were created as insurance of the last resort. A legislative scheme was created whereby, if benefits were available from some other source, they would be relied upon before having recourse to the Schedule. Thus, for example, we see the requirement found in section 12(4) of the Schedule, that other payments for loss of income from wage continuation plan, etc., must be taken into account before determining the amount of weekly income benefits available. Similarly, section 20 of the Schedule was created to ensure that recourse was generally made to the workers' compensation benefits before resorting to the Schedule.

While keeping this general purpose or objective in mind, I also note that one of the objectives of the Schedule was to compensate dependants who were deprived, by a motor vehicle accident, of a right to support from a deceased person.

Section 11(2) of the Schedule states:

(a) $50,000 to his or her spouse, if the deceased is survived by a spouse who was his or her spouse at the time of the accident;

(b) $50,000 to his or her dependants, if the deceased is survived by any dependant who was a dependant at the time of the accident and is not survived by a spouse who is entitled to a benefit under this section;

(d) if, at the time of the accident, the deceased was a dependant, $20,000,

(i) to the person upon whom the deceased was dependant or, if that person is dead, to the surviving spouse of that person if the surviving spouse was the deceased's primary caregiver, or

(ii) to the other surviving dependants of the person upon whom the deceased was dependant if that person and his or her spouse are dead.

It is section 11(2)(c) that would apply in this particular case.

It is clear that the Workers 'Compensation Act also attempted to deal with the issue of "death benefit" as referred to in the Schedule or "survivor benefits" as they are referred to in the Workers 'Compensation Act. Section 35(4) of the Workers 'Compensation Act deals with the situation such as here, where there is a spouse and children. That section states:

Where a deceased worker is survived by a spouse and one or more children, compensation in an amount equal to 90% of the deceased worker's net average earnings at the time of the injury shall be payable to the spouse until the youngest child reaches the age of nineteen years.

This is to be contrasted with the situation where the deceased had a spouse and no children. Section 35(5) states:

Where the deceased worker is survived by a spouse and no child or children, the spouse shall be entitled to a periodic payment of 40% of the net average earnings of the deceased worker adjusted by the addition of 1% of the net average earnings for each year of age of the spouse over 40 years at the time of the worker's death, or by the subtraction of 1% of the net average earnings for each year of age of the spouse under 40 years at the time of the worker's death, but in no case shall a spouse receive a periodic payment of more than 60% or less than 20% of the net average earnings of the deceased worker.

As can be seen, a substantially larger amount is awarded in situations where the deceased dies leaving a spouse with children. There would appear to be an expectation that the surviving spouse will need, and use, the awarded funds to raise the surviving children.

While the above may describe the intent of the workers' compensation legislation, it is also necessary to examine the wording of the particular section in the Schedule.

Section 20 of the Schedule, of course, reads as follows:

The insurer will not pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any worker's compensation law or plan.

Counsel for the Insurer has pointed out that the legislature chose to use the word "in respect of any person" rather than "to any person". He has also drawn my attention to the Supreme Court of Canada decision of Mr. Justice Dixon in Nowegijick v. The Queen wherein he stated:

The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to", or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject-matters.⁴

While I am in agreement that the term "in respect of is a wide term, and should be given wide interpretation, I do not think this is necessarily conclusive with regard to the interpretation of this section.

It is to be noted that section 20 of the Schedule requires that it is the insured person that is entitled to receive the workers' compensation benefits. In this case, the deceased is the insured person, and it is clear that she is not receiving the benefits. Counsel for the Insurer has suggested that a deceased, could not, of course, receive workers' compensation benefits. He submits that what is really meant is that the workers' compensation scheme is available to the worker at the time of the accident, and that the person's dependants then take under the workers' compensation scheme rather than under the Schedule.

While the Insurer's position may have some merit in terms of what the legislators were attempting to accomplish, I am of the view that the dependants are not precluded from recovering section 11(2) benefits by the operation of section 20 of the Schedule. Section 20 is what is often referred to as an "exclusionary clause" and it is trite law that such clauses are to be interpreted narrowly. In my view, section 20 clearly requires that the deceased be entitled to receive workers' compensation benefits which she, equally clear, did not.

Had the legislature wished to have section 20 of the Schedule applied to situations such as the case at hand, it could have easily altered the wording of the section to include surviving dependants. However, it failed to do so. Accordingly, I find that section 20 of the Schedule does not apply to exclude the dependants from recovering the statutory accident benefits claimed.

Expenses:

The Applicants were successful in this matter and accordingly, I am exercising my discretion to award them their expenses of this arbitration.

Order:

The Applicants are entitled to receive death benefits pursuant to section 11(2) of the Schedule.
The Applicants are entitled to their expenses related to the arbitration.

December 28, 1995

M. Guy Jones Arbitrator

Date

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No Fault Benefits Schedule. After that date it became Statutory Accident Benefits Schedule - Accidents before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
Scrimshaw v. Constitution Insurance Company of Canada (1979) 1979 CanLII 2109 (ON HCJ), 26 O.R. (2d) 371 at p.375
Consolidated Bathurst Exports Limited v. Mutual Boiler and Machinery Company (1979), 1979 CanLII 10 (SCC), 112, D.L.R. (3d) 49 (S.C.); Wigle v. Allstate Insurance Company of Canada (1984), 1984 CanLII 45 (ON CA), 49 O.R. (2d) 101 (Ont. C.A.); Reid Crowther and Partners Limited v. Simcoe and Erie General Insurance Company (1993), 13, C.C.L. (2d) 161 ( S.C.C.); Scrimshaw v. Constitution Insurance Company of Canada (1979), 1979 CanLII 2109 (ON HCJ), 26 O.R. (2d) 371 (County Ct.); Vasquez v. CoOperators General Insurance Company (1985), 1985 CanLII 2040 (ON CA), 50 O.R. (2d) 524 ( Ont. C.A.); July v. Neal (1988), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129 (C.A.);
Nowegijick v. The Queen (1983) 1983 CanLII 18 (SCC), 144 D.L.R. (3d) 193 at p. 200 (S.C.)

Lupien v. General Accident Assurance Company of Canada, 1995 ONICDRG 195

Case Summary