Donna Christo v. Royal Insurance Company of Canada, 1996 ONICDRG 57

File No.: A-015318

ONTARIO INSURANCE COMMISSION

BETWEEN:

DONNA CHRISTO Applicant

and

ROYAL INSURANCE COMPANY OF CANADA Insurer

DECISION ON PRELIMINARY ISSUE

The Applicant, Donna Christo, was involved in a motor vehicle accident on January 19, 1992. She was pregnant at the time of the accident, and her son, Dustin Christo, was born on January 26, 1992. Ms. Christo claimed supplementary medical and rehabilitation benefits, payable under section 6 of Ontario Regulation 672¹, on behalf of her son. The Insurer refused benefits on the ground that Dustin was not an "insured person" at the time of the accident and therefore is not entitled to statutory accident benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The only issues in this hearing are:

Is Dustin Christo, a child who was en ventre sa mere at the time of the accident, an "insured person" for the purpose of claiming statutory accident benefits?
The Applicant also claims her expenses incurred in the hearing.

Result:

Dustin Christo is an "insured person" for the purpose of claiming statutory accident benefits.
The Applicant is entitled to reimbursement of her expenses incurred in the hearing.

A hearing will be scheduled before an arbitrator to determine whether Dustin Christo is entitled to the medical and rehabilitation benefits claimed.

Hearing:

The hearing was held by telephone conference on March 12, 1996, at 10:00 a.m., before me, Nancy Makepeace, arbitrator.

The Applicant, Donna Christo, and her husband, Dennis Christo, participated by telephone in the office of Murray Ellies, Barrister and Solicitor, who represented the Applicant. The Insurer was represented by Stanley Tessis, Barrister and Solicitor, who was assisted by Mark Isaacs, Barrister and Solicitor.

There were no witnesses, and no documents were filed in evidence. Each party filed a factum and book of authorities.

Cases considered:

Lucy Beiler and Alpina Insurance Company, Limited (Supplementary Decision), August 9, 1994, OIC File No.A-003051

Mary McLean and Wellington Insurance Company, Mary McLean and Economical Mutual Insurance Company, February 20, 1995, OIC File No. A-00649

Michael Ridgley and Zurich Insurance Company, April 13, 1994, OIC File No. A-004083 (under appeal)

Borowski v. Attorney General Canada (1987), 30 D.L.R. (4th) 731

Dehler v. Ottawa Civic Hospital et al. (1979), 1980 CanLII 1878 (ON CA), 25 O.R. (2d) 748

Duval et al. v. Seguin et al. (1972), 1972 CanLII 371 (ON HCJ), 2 O.R. 686

Fitzsimonds v. Royal Insurance Co. of Canada (1984), 7 D.L.R. 406

Kirkpatrick v. Moroughan (1927), 1927 CanLII 427 (ON SCAD), 60 O.L.R. 495

Mathison v. Hoffer (1984), 1984 CanLII 3664 (MB QB), 6 C.C.L.I. 58

Smith et al. v. Insurance Corporation of British Columbia (1980), 1980 CanLII 584 (BC SC), 21 B.C.L.R. 317

Seede et al. v. Camco Inc. (1985), 52 O.R. (2d) 218

Tremblay v. Daigle (1989), 62 D.L.B. (4th) 634

Vasey et al. v. Economical Mutual Insurance Co. (1986), 1986 CanLII 2558 (ON HCJ), 54 O.R. (2d) 692

Subsequent to the hearing, Insurer's counsel provided me with Catherwood v. Young, 1995 CanLII 7254 (ON CTGD), [1996] I.L.R. 1-3278 (Ont. Ct. Gen. Div.). Given my decision in this matter, I did not find it necessary to invite a response from Applicant's counsel concerning this decision.

Agreed Facts:

The preliminary issue was argued on the basis of the following agreed facts. Donna Christo was involved in a motor vehicle accident on January 19, 1992. She was pregnant at the time, and her son, Dustin, was born on January 26, 1992, about seven weeks premature. The Applicant claims that Dustin sustained serious injuries as a result of the accident and his premature birth.

The parties agreed that for the purpose of this hearing, I should assume that Dustin was injured as a result of the accident. If I decide that Dustin is an insured person for the purpose of claiming statutory accident benefits, the Insurer will dispute the causation issue in subsequent proceedings.

Reasons:

Nothing in the Schedule or the Act indicates whether a child who was en ventre sa mere ("in the womb of his mother") at the time of the accident, and who was born alive after the accident, can claim statutory accident benefits for injuries sustained in the accident.

On behalf of the Insurer, Mr. Tessis submitted that a fetus is not a "person" in law, and therefore is not an "insured person" within the definition set out in section 2 of the Schedule. Mr. Tessis submitted that an applicant is not entitled to statutory accident benefits unless he was an insured person at the time of the accident. It follows that a fetus who was born after the accident was not an insured person at the time of the accident and therefore cannot claim statutory accident benefits arising out of the accident.

Mr. Tessis relied on three decisions which held that a fetus is not a person in law.² However, these cases were brought by persons who were opposed to abortion and who wished to challenge the therapeutic abortion provisions of the Criminal Code. As Robins J. noted in Dehler, the Criminal Code provides that "a child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother ..." In Borowski, the Saskatchewan Court of Appeal held that a fetus is not a person for the purpose of section 7 of the Canadian Charter of Rights and Freedoms.³ The Ontario High Court came to the same conclusion with respect to the Canadian Bill of Rights in Dehler. In Tremblay, the issue was whether a fetus is a "person" or "human being" within the meaning of the Quebec Charter of Human Rights and Freedoms or the Civil Code of Lower Canada.

None of these decisions considered the provisions of the Insurance Act or any similar legislation, and all of them recognized that a fetus, once born alive, may have a right of action in tort arising out of an injury sustained before birth.⁴ The situation at common law was summarized in the Seede v. Camco decision:⁵

In Ontario there is no right of action in an unborn child to recover damages nor in favour of an unborn child unless the child is born alive. On the other hand, when the unborn child becomes a living child through birth and suffers damages as a result of prenatal injuries caused by the fault or the negligence of another the cause of action is completed. This right to the born-alive child is provided by the law on the basis of a fiction in respect of property rights clothing an unborn child who is subsequently born alive with the same rights as a child living at the time of the death of the benefactor ...

I agree with Applicant's counsel that this long-standing and well-recognized legal fiction is intended to prevent the unfairness that would result if a child could not seek compensation in tort for an injury he or she suffered en ventre sa mere.⁶

The Insurer also relies on the arbitration decision, Ridgley,⁷ in which the minor applicant was denied death benefits under section 11(2)(c) of the Schedule because he was en ventre sa mere at the time of the accident in which his father died.

To similar effect is McLean,⁸ in which Arbitrator Janice Mackintosh considered whether the applicant and her husband were spouses at the time of the accident. At the time of the accident, they had two children and had lived together in a relationship of some permanence, but they had separated for more than a year at the time of the accident; they reconciled and married after the accident. Arbitrator Mackintosh held that the applicant's status must be determined as of the date of the accident.

And in Beiler,⁹ Arbitrator Fred Sampliner held that the applicant could not claim primary caregiver benefits under section 13(4) of the Schedule in respect of her child who was en ventre sa mere at the time of the accident.

I find that the Ridgley, McLean and Beiler decisions are distinguishable in two ways. First, all three decisions involve provisions of the Schedule that set out temporal requirements. Section 11(2)(c), which was the issue in Ridgley, expressly limits death benefits to a dependant "who was a dependant at the time of the accident." The section 224(1) definition of "spouse," the issue in McLean, also includes an implicit temporal requirement: paragraph (c) says two people are spouses if they "are not married to each other and ... have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child." The issue in Beiler was primary caregiver benefits provided under section 13(4) "for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver" [emphasis added]. Relying on Ridgley, Arbitrator Sampliner held that "the key to the meaning of section 13(4) lies in the words 'at the time of the accident'."

In contrast, Dustin Christo claims medical and rehabilitation benefits under section 6 of the Schedule, which is as follows:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident ... [emphasis added]

Except for the benefit period set out in section 6(3), section 6 is not concerned with matters of timing.

The second point of distinction is that the applicants in Ridgley and McLean were not claiming benefits on the basis of having been injured in a motor vehicle accident; the applicant in Beiler did not claim that the child in respect of whom primary caregiver benefits were claimed was injured in the accident. Their claims were based on the applicant's having had a spousal, dependency or caregiver relationship with a person who was injured in an accident. In contrast, the test for entitlement to section 6 benefits is whether the insured person needs the benefits claimed as a result of his accident-related injuries. In this case, Donna Christo was an occupant of the motor vehicle involved in the accident, and she was injured, as was her fetus. It is because of the alleged ongoing effects of these injuries that the Applicant seeks medical and rehabilitation benefits on behalf of her son.

The en ventre sa mere principle was applied to automobile insurance "no fault" benefits in Smith et al v. ICBC (1980), 1980 CanLII 584 (BC SC), 21 B.C.L.R. 317 (B.C.S.C.), and Fitzsimonds v. Royal Ins. Co. of Canada (1984), 1984 ABCA 7, 7 D.L.R. (4th) 406. Other decisions have refused to apply the legal fiction: Scrimshaw v. Constitution Ins. Co. of Canada (1979), 1979 CanLII 2109 (ON HCJ), 26 O.R. (2d) 371, 102 D.L.R. (3) 447 (S.C.C.), Mathison v. Hofer et al (1984), 1984 CanLII 3664 (MB QB), 6 C.C.L.I. 58 (Man. Q.B.), and Vasey et al v. Economical Mutual Insurance Co. (1986), 1986 CanLII 2558 (ON HCJ), 54 O.R. (2d) 692 (Ont. Dist. Ct.). However, none of these cases considered whether the legal fiction applies to a child born alive, who was injured in a motor vehicle accident while en ventre sa mere. I am aware of no decisions dealing with the application of the principle to statutory medical and rehabilitation benefits.

Section 6 provides medical and rehabilitation benefits for insured persons. "Insured person" is defined in section 2 of the Schedule to include "an occupant of the insured automobile";¹⁰ the parties agree that Donna Christo was an "occupant" and an "insured person". The Act and the Schedule are silent as to whether the terms "insured person" and "occupant" include a child who was en ventre sa mere at the time of the accident, and whose mother was an occupant of the insured automobile.

In Vasey v. Economical Mutual Insurance Co.,Mr. Justice McTurk said, after recognizing the long history of the legal fiction:

In interpreting statutes such as the Insurance Act, I think cognizance must be taken that this fiction would be known to legislative draftsmen and the legislation would be passed with this fiction in mind, (at 695)

I agree. Where the statute and regulation are silent, as they are here, I find it appropriate to resolve any ambiguity by considering the state of the law at the time they were drafted.

I also find it appropriate to consider the "historic trade-off" made by the Legislature in Bill 68. In return for the right to claim statutory accident benefits without regard to fault, insureds gave up longstanding tort rights, unless their injuries were serious enough to pass the "threshold test" set out in section 266 of the Act. The Insurance Act, like the Schedule, is silent as to the application of the en ventre sa mere principle. The Insurer concedes that at common law a child can recover damages for injuries he or she sustained in a motor vehicle accident while en ventre sa mere, subject, presumably, to the "threshold." It is a principle of statutory interpretation that words or phrases should be given consistent interpretation throughout a statute, all else being equal; in my view, the same principle applies where a statute and regulation form a coherent statutory scheme. I find no absurdity in the interpretation put forward by the Applicant.

Finally, arbitrators have often referred to the great importance the drafters of the Schedule placed on rehabilitation of injured persons. I can think of no reason why the drafters of the Schedule would preclude a child who was en ventre sa mere at the time of the accident from receiving benefits which may be essential to his rehabilitation. In the absence of express language to the contrary in the Act or the Schedule, I see no reason why the common law rule should not apply.

I find that a person who was injured in a motor vehicle accident while en ventre sa mere, and was subsequently born alive, is an "insured person" for the purpose of claiming statutory accident benefits. The Applicant is entitled to an arbitration hearing on the remaining issues.

Expenses:

The Applicant succeeded in her claim on the preliminary issue. She is entitled to be reimbursed for her expenses in respect of this hearing.

Order:

Dustin Christo is an "insured person" for the purpose of claiming statutory accident benefits, and may proceed to arbitration.
The Applicant is entitled to her expenses incurred in respect to this hearing.

April 23, 1996

Nancy Makepeace Arbitrator

Date

Footnotes

Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule” will be used to refer to Regulation 672.
Dehler v. Ottawa Civic Hospital et al. (1979), 1980 CanLII 1878 (ON CA), 25 O.R. (2d) 748 (Ont. H.C.J.); Borowski v. A-G Canada (1987), 1987 CanLII 6815 (SK CA), 39 D.L.R. (4th) 731 (Sask. C.A.); and Tremblay v. Daigle (1989), 1989 CanLII 33 (SCC), 62 D.L.R. (4th) 634 (S.C.C.).
Section 7 is as follows: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
Dehler at 757-759 O.R., Borowski at 742-744 D.L.R., and Tremblay at 662-663 D.L.R.
(1985), 1985 CanLII 1938 (ON HCJ), 50 O.R. (2d) 218 at 221 (S.C.O.)
See Smith v. Fox (1922), 1922 CanLII 521 (ON SCHCD), 53 O.L.R. 54, [1923] 3 D.L.R. 785, Montreal Tramways Co. v. Leveille, 1933 CanLII 41 (SCC), [1933] S.C.R. 456, [1933] 4. D.L.R. 337 (S.C.C.), Duval et al. v. Sequin et al. 1972 CanLII 371 (ON HCJ), [1972] 2 O.R. 686, 26 D.L.R. (3d) 418, affirmed 1973 CanLII 693 (ON CA), 1 O.R. (2d) 482, 40 D.L.R. (3d) 666 (Ont. C.A.), and Seede et al. v. Camco Inc. (1985) 1985 CanLII 1938 (ON HCJ), 50 O.R. (2d) 218 (S.C.O.).
Michael Ridgley and Zurich Insurance Company, April 13, 1994, OIC File No. A-004083 (under appeal), Senior Arbitrator Frederika Rotter.
Mary McLean and Wellington Insurance Company, Mary McLean and Economical Mutual Insurance Company, February 20, 1995, OIC File Nos. A-006649 and A-006661 (under appeal), Arbitrator Janice Mackintosh. In Catherwood v. Young, 1995 CanLII 7254 (ON CTGD), [1996] I.L.R. 1-3278, Mr. Justice Ferguson of the Ontario Court (General Division) took the same approach, and referred to the McLean decision with approval.
Lucy Beiler and Alpina Insurance Company, Limited (Supplementary Decision), August 9, 1994, OIC File No.A-003051, Arbitrator Fred Sampliner.
Paragraph (a)