Neutral Citation: 1995 ONICDRG 3
File No. A-009068
ONTARIO INSURANCE COMMISSION
BETWEEN:
JOHN R. PALMER
Applicant
and
PILOT INSURANCE COMPANY
Insurer
DECISION
On June 6, 1993, John Robert Palmer, Jr., was fatally injured in a motor vehicle accident. His father, John Robert Palmer, Sr., applied for death benefits from the Insurer, Pilot Insurance Company ("Pilot"), payable under subsection 11 (2)(d)(i) of Ontario Regulation 6721. The Insurer refused benefits.
The issue in this hearing is:
Is the Applicant entitled to death benefits of $20,000 under subsection 11 (2) (d) (i) of the Schedule? The Applicant also claims interest on this amount. In order to decide this matter, I must determine whether the Applicant's son was a "dependant" of his father, within the meaning of subsection 3(2) of the Schedule, at the time of the accident.
Is the Applicant entitled to his expenses incurred in the arbitration proceeding?
Result:
The Applicant is not entitled to death benefits.
The Applicant is entitled to his expenses incurred in the arbitration proceeding.
Hearing:
The hearing was held in Windsor, Ontario, on December 14, 1994, before me, Nancy Makepeace, arbitrator.
Present at the hearing:
Applicant: John R. Palmer, Sr.
Applicant's Representative: John A. Watson Barrister and Solicitor
Insurer's Representative: Grant E. Black Barrister and Solicitor
Grace Pang Barrister and Solicitor
Ernestine Palmer, the mother of the deceased, was also present throughout the hearing.
Witnesses:
John R. Palmer, Sr., the Applicant and father of the deceased
Eleanor Mathieu, cousin of the deceased
Exhibits:
Exhibit 1 The Applicant's Revenue Canada Summary, 1992
Exhibit 2 The Applicant's Revenue Canada Summary, 1993
Exhibit 3 Letter dated May 28, 1993, from Ann Murphy, Treatment Counsellor, Westover Treatment Centre
Exhibit 4 Letter dated September 19, 1994, from Ann Murphy, Addiction Counsellor, Westover Treatment Centre
Exhibit 5 Statutory Declaration by the Applicant, dated January 12, 1994
Exhibit 6 The Applicant's Application for Assistance (Funeral expenses), Ministry of Community and Social Services, dated June 7, 1993
Exhibit 7 Two notes, dated June 18, 1993, prepared by Anne Allington and Beverly Moran
Exhibit 8 Excerpts from the deceased's welfare file
Other documents before the Arbitrator:
Report of Mediator, May 5, 1994
Application for Appointment of an Arbitrator, May 16, 1994
Response by Insurer, June 8, 1994
Letter of pre-hearing arbitrator, September 14, 1994
The Insurer filed a Memorandum of Law, as follows:
Memorandum of Law
Daniel Cattrysse and The Westminster Mutual Fire Insurance Company and Daniel Cattrysse and Anglo Canada General Insurance Company, June 21, 1993, OIC File Nos. A-001618 and A-001789
Maninder Singh and State Farm Mutual Automobile Insurance Company and Maninder Singh and Pilot Insurance Company, June 4, 1993, OIC File Nos. A-001525 and A-001526
Peter Najem and Economical Mutual Insurance Company, July 27, 1993, OIC File Nos. A-003115 and A-003116
Adolf and Maria Crnkovic and Simcoe & Erie General Insurance Company, April 8, 1993, OIC File No. A-002228
Barnard Estate v. Safeco Insurance (1986), 1986 CanLII 2522 (ON HCJ), 23 C.C.L.I. 279 (Ont. H.C.)
Miller v. Safeco Insurance (1985), 1985 CanLII 2022 (ON CA), 13 C.C.L.I. 31 (Ont. C.A.), varying (1984), 1984 CanLII 2019 (ON HCJ), 48 O.R. (2d) 451 (H.C.)
Counsel also referred me to the arbitration decision, Dianne Raffoul and State Farm Mutual Automobile Insurance Company, September 21, 1994, OIC File A-004476.
Reasons:
John Robert Palmer, Jr. ("John"), was 25 years old at the time of his death on June 6, 1993. His father, John Robert Palmer, Sr., applied for death benefits under subsection 11 (2) (d) (i) of the Schedule, which provides as follows:
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,
(d) if, at the time of the accident, the deceased was a dependant, $20,000,
(i) to the person upon whom the deceased was dependent or, if that person is dead, to the surviving spouse of that person if the surviving spouse was the deceased's primary caregiver
In order to receive these benefits, the Applicant must prove that his son was an "insured person", as defined in subsection 2(c) of the Schedule, as follows:
- In this Schedule,
"insured person", in respect of a particular motor vehicle liability policy, means,
(c) the named insured, his or her spouse and any dependant of either of them while the occupant of any other automobile
The parties agreed that John was not a "named insured" under his father's policy. Therefore, the only way for the Applicant to succeed is to show that his son was a "dependant" as defined in subsection 3(2) of the Schedule, which provides as follows:
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 of the other person of the other person's spouse.
Similar language ("dependent relative") was considered by Mr. Justice O'Brien in the decision, Miller v. Safeco Insurance Co. of America (1984), 1984 CanLII 2019 (ON HCJ), 48 O.R. (2d) 451 (H.C.J.). O'Brien J. held that each case must be approached on its own particular facts, but factors to be considered would include "the amount and duration of the financial or other dependency, the financial or other needs of the claimant, the ability of the claimant to be self-supporting, and the general standard of living within the family unit". The Court of Appeal upheld the lower court decision, except for the last factor, which it expressly stated was an inappropriate consideration. Mr. Justice O'Brien also stated that "it would be preferable to approach the question of this interpretation [of dependency] on the basis the legislation was of a remedial nature, intended to broaden insurance coverage to include members of family units as persons insured under the policy." Arbitrators have taken a similar approach to the definition of "dependant" in subsection 3(2) of the Schedule (see, for example, Daniel Cattrysse and The Westminster Mutual Fire Insurance Company and Daniel Cattrysse and Anglo Canada General Insurance Company, June 21, 1993, OIC File Nos. A-001618 and A-001789; and Peter Najem and Economical Mutual Insurance Company, July 27, 1993, OIC File Nos. A-003115 and A-003116).
The meaning of "principally dependent for financial support" has been considered in several arbitration decisions. It has been held that the dependency must be "financial", and not merely "social" (see, for example, Maninder Singh and State Farm Mutual Automobile Insurance Company and Maninder Singh and Pilot Insurance Company, June 4, 1993, OIC File Nos.
A-001525 and A-001526). Further, as Arbitrator David Draper said in Bruce and Eleanor McDonald and State Farm Mutual Automobile Insurance Company, March 11, 1993, OIC File No. A-001347 (under appeal):
The term, "principally dependent for financial support" requires more than some dependence. It means that the person claiming benefits must establish that he or she is more financially dependent on the deceased person than on any other source.
In Cattrysse, Arbitrator Julaine Palmer discussed Barnard Estate v. Safeco Insurance (1986), 1986 CanLII 2522 (ON HCJ), 23 C.C.L.I. 279 (Ont. H.C.), in which Mr. Justice O'Driscoll considered several dictionary definitions of "principally", as well as some relevant cases. Arbitrator Palmer agreed with Mr. Justice O'Driscoll "that the words 'chiefly', 'mainly', and 'for the most part' are synonymous with the word 'principally'". In Singh, Senior Arbitrator Susan Naylor concluded that "an individual must chiefly or for the most part derive his or her financial support from another person in order to be principally dependent for financial support on that person". Senior Arbitrator Naylor also noted that, in contrast with the legislation which preceded the Schedule, "there are no qualifications in section 3(2) [of the Schedule] in respect of age, residence or relationship" (see also the comment of Arbitrator Julaine Palmer in Adolf and Maria Crnkovic and Simcoe & Erie General Insurance Company, April 8, 1993, OIC File No. A-002228, that "there is no longer any residency requirement"). I agree with these comments. However, in my view, age, residence and relationship are relevant factors to be considered in assessing a person's circumstances in their entirety. In particular, if John resided with his father, he might have been in receipt of valuable goods and services (food and shelter). Accordingly, in determining whether John was "principally dependent for financial support" on his father, I consider all the circumstances, including his income from all sources, his expenses, his age, and his residence.
I heard oral evidence from Mr. Palmer Sr. and (briefly) from Eleanor Mathieu, John's cousin. Mr. Palmer Sr. impressed me as a generally straightforward witness who tried to tell the truth at the hearing. However, he was not able to give a clear history of his son's life, and there were some gaps and discrepancies in his testimony. Where the Applicant's testimony was unclear, I have relied on excerpts from John's welfare file (Exhibit 8) which were entered into evidence.
Background facts
By all accounts, John was a troubled young man. After leaving school in the middle of grade 10, he held a series of casual and short-term jobs, but none of them lasted very long. For a while, several years before the accident, John worked the night shift at McCormick's bakery, where his father worked. However, he was fired for being under the influence of drugs while at work. John's spotty work history is recorded in his welfare file.
John was incarcerated on at least four occasions. When he was not incarcerated, he lived at a number of addresses (the welfare file lists 14 addresses for the eight-year period between 1985 and 1993), and periodically came back to stay with his father. The Applicant testified that when John stayed with him, he paid no rent and made no other contribution to household expenses.
The Applicant testified that he often gave his son money for cigarettes, clothes, or other needs. John did not have a car of his own. In his statutory declaration, Mr. Palmer Sr. deposed that John relied upon his father ("and his friends") for transportation: "my son would often telephone me from different locations in the city to request that I pick him up and drive him home. If at all possible, I always accommodated my son's requests". The welfare file also recognizes the Applicant's financial support of his son.
On the basis of the welfare file, and the testimony of Mr. Palmer Sr. and Eleanor Mathieu, I understand John's history as follows.
John first applied for welfare in May 1985, but was refused because he was under 18 years of age and he was living with his father (on H. Street). Mr. Palmer Sr. had written a letter stating that he was unable to support John because he was on strike at work.
John turned 18 in October 1985. In December 1985, he applied for welfare and received benefits between December 3, 1985 and February 28, 1986. He had moved to C. Street, and stated on the application that he lived alone. His father had moved to O. Drive. The caseworker noted that John had left his father's home in November 1985, because his father was ill and needed to live with people who could care for him. The caseworker also noted that John's father "occasionally" gave him "$15 or $20". John had been living on savings, which had run out. He had recently "borrowed" $30 from his father, for food.
John received welfare again between April 16 and July 31, 1986. The application again gave the C. Street address, and indicated that he lived alone.
John next applied for welfare in November 1986. The caseworker noted that he had been released from Windsor Jail on October 31, 1988. Benefits were paid between November 4, 1986 and May 31, 1988. John's address was given as M. Terrace; O. Drive was still listed as his father's address. The application indicated that John was now living with a friend and a child.
A further application for welfare benefits was completed in October 1988, when a contract job ended. The application indicated that John lived alone on P. Avenue. His aunt, Pearl, was listed as his next-of-kin. Benefits were paid between October 24 and December 3, 1988.
On May 28, 1989, John was injured in a motor vehicle accident. He received welfare benefits as medically unemployable between June 8 and July 31, 1989. Again, the application indicated that John lived alone on P. Avenue, and his father lived on O. Drive.
Between August 13 and November 4, 1989, John was incarcerated in Elgin-Middlesex Detention Centre. He applied for welfare benefits on his release, and received benefits between November 14, 1989 and January 31, 1991. The application indicated that he lived alone on W. Street.
John's application for welfare assistance in May 1991 was turned down.
John was incarcerated in the Exeter Road Correctional Centre between May 12 and October 12, 1991.
Welfare benefits were paid between November 1, 1991 and March 31, 1993. This application gave Mr. Palmer Sr.'s address as the W. Street address John had previously identified as his own; John now lived at another W. Street address. Benefits were terminated because John was again incarcerated in April 1993.
Between May 3 and May 28, 1993, John completed a 28-day residential drug rehabilitation program at Westover Treatment Centre. A note from Ann Murphy, Treatment Counsellor, states that after his discharge, John was to be involved in "the community-based program and the one-year aftercare/follow-up program" (Exhibit 3). I heard no detail about these programs. Another note from Ms. Murphy, indicates that Westover is "fully funded" by the Ministry of Health (Exhibit 4).
John applied for welfare benefits again on May 31, 1993. He gave his address as B. Avenue. A home visit was scheduled for June 4, but the caseworker noted that no one was home. On the same day, John applied for a Temporary Driver's Licence, giving his father's O. Drive address as his address.
Findings: residence
The accident occurred just one week after John's release from the Westover program. The Applicant testified that John spent one night of that week in jail. The Applicant also testified that his son "came to the house" the night before the accident, a Saturday night; they discussed going fishing the next day. The Applicant admitted that John spent "some days" with him that week, but did not stay with him all week. According to Eleanor Mathieu, John's cousin, John stayed with her that week.
The Applicant was unable to testify with any certainty as to what his own address was at the time of the accident. The Revenue Canada summaries for 1992 (assessed April 2, 1993, Exhibit 1) and for 1993 (assessed April 11, 1994, Exhibit 2) give Mr. Palmer Sr.'s address as M. Street, London. However, the Applicant testified that he and John lived at the O. Drive address at the time of the accident. Eleanor Mathieu, John's cousin, testified that, to her knowledge, both John and Mr. Palmer Sr. lived on O. Drive in and following January 1993. This was also the address given on John's Temporary Driver's Licence, issued May 31, 1993, just one week before his death.
Notes prepared by the welfare caseworker on June 7, 1993, in connection with Mr. Palmer Sr.'s request for assistance with funeral expenses, indicate that "father has little info about son - He believes son recently released from rehabilitation". The Application indicates that John's address was "not known at time at death" (Exhibit 6). Mr. Palmer Sr. testified that this form was prepared by someone at welfare, and he then signed it. He could not explain why he had not told the caseworker that his son lived on O. Drive with him.
Another address - on B. Avenue, London - was given on John's application for social assistance prepared on May 31, 1993. The Applicant could not explain why his son had given the welfare authorities that address. He testified that John sometimes stayed at that address, with some friends, but was not living there.
I accept Mr. Palmer Sr.'s testimony that his son stayed with him "on and off" in the months and years before his death. According to Mr. Palmer Sr., John would stay with friends for two or three weeks, until they "got tired of him", then he would come home to stay with his father for a while. John's clothes were "all over", some at his father's home, and some with friends. John would sometimes arrive at his father's home late at night, drunk, asking for a place to stay. In the week between his release from the drug treatment program and the accident, John resumed this pattern of behaviour. I was presented with evidence that in that last week, he stayed with his cousin, his father, and friends; in addition, he spent one night in jail. Considering this evidence, I am not satisfied that John resided with his father at the time of the accident.
Findings: income and expenses
In the eight years between the time of John's first application for welfare benefits in May 1985, and his death in June 1993, John received welfare benefits, including a full shelter and basic needs allowance, for some three years in total. He was incarcerated for about a year, over several periods. He held a number of short-term and casual jobs.
He also received financial assistance from his father, as the welfare caseworker noted on the December 1985 application. However, subsequent applications noted that John received contributions from "relatives" (April 1986), "family" (November 1986), "family and friends" (October 1988, June 1989), "friends and relatives" (May 1991), and "friends" (November 1991).
I accept that Mr. Palmer Sr. supported John with money, as well as goods and services (food, shelter, transportation), in the months and years before his death. However, I am not satisfied that John was "principally dependent for financial support" on his father. I find that John was "chiefly", "mainly", "primarily" or "principally" dependent for financial support on his welfare benefits and employment income, and he also received significant financial support from the Province of Ontario during his residential rehabilitation program and his various periods of incarceration. He was also supported by friends and members of his family other than his father. He sought support from his father when other sources of income ran out, or when he had no place to stay. His father was his last resort. Undoubtedly, his father also provided emotional and social support. However, that does not make John a "dependant" under the Schedule.
The parties made submissions about the appropriate timeframe for the "snapshot" of the relationship between John and his father. In Dianne Raffoul and State Farm Mutual Automobile Insurance Company, September 21, 1994, OIC File A-004476, Senior Arbitrator Susan Naylor said:
Section 11 requires an assessment of the applicant's circumstances "at the time of the accident". However, I agree with Arbitrator David Draper in Frank Donohue v. State Farm Mutual Automobile Insurance Company, O.I.C. File No. 6756, issued on August 31, 1994, that a person's position cannot be determined solely by a single "snapshot" of his or her circumstances at that date.
I agree with this approach. I also agree with Senior Arbitrator Naylor's statement that "section 3(2) requires a realistic assessment of an applicant's actual financial circumstances to determine whether they are in fact relying on another for support". Insurer's counsel submitted that in this case, it is necessary to consider John's income and expenses for several years before the accident in order to get an accurate picture of his circumstances. I agree. In any event, it would not assist the Applicant if I were to consider only the circumstances in the last day or days of John's life. John applied for welfare benefits as soon as he was released from Westover. I was presented with no evidence that he received any substantial financial support from his father during his last week. For the reasons given above, I am not persuaded that he received goods and services (in the form of food and shelter) principally from his father during this period.
I find that John was not principally dependent for financial support upon his father at the time of the accident.
Conclusion
I conclude that John Robert Palmer Jr. was not a "dependant" of the Applicant, within subsection 3(2) of the Schedule, at the time of the accident. Therefore, he was not an "insured person" under subsection 2(c). Despite the tragic circumstances of his son's life and death, Mr. Palmer Sr. is not entitled to death benefits under section 11.
Expenses:
Although the Applicant did not succeed, his application raised a legitimate factual issue. Further, the hearing was conducted in an expeditious and efficient manner. In these circumstances, I find it appropriate to exercise my discretion to award the Applicant his expenses incurred in the arbitration proceeding. If the parties are unable to agree as to the amount payable, the matter may be brought before me.
Order:
The Applicant is not entitled to death benefits.
The Applicant is entitled to his expenses incurred in the arbitration proceeding.
January 13, 1995
Nancy Makepeace Arbitrator
Date