Neutral Citation: 1997 ONICDRG 228

OIC A95-000203

BETWEEN:

ALLAN GIROUX, SHEILA GIROUX, CARLA MILLS and SAMUEL GIROUX-GRAHAM

Applicants

and

CO-OPERATORS GENERAL INSURANCE COMPANY and MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurers

DECISION

Glen Giroux, was killed in a motor vehicle accident on May 7, 1994. The Applicants Allan and Sheila Giroux, Carla Mills and Samuel Giroux-Graham all applied for statutory accident benefits, payable under the Schedule¹ as a result of Glen Giroux' death.

Carla Mills was Glen Giroux' common law spouse and Samuel Giroux-Graham is their child. There is no dispute that Ms. Mills and Samuel Giroux-Graham are entitled to statutory accident benefits. The dispute in this case concerns who should pay the benefits, and whether Glen Giroux' parents, Allan and Sheila Giroux, are entitled to benefits as a result of Glen's death.

Allan and Sheila Giroux claim that they are entitled to benefits because Glen Giroux was financially dependent on them at the time of his death. They also claim that they were dependant on Glen Giroux for care.

If Glen Giroux was a dependant of Allan and Sheila Giroux at the time of his death, then the Giroux' insurer, Co-operators General Insurance Company ("Co-operators"), would be liable to pay statutory accident benefits in this case. Otherwise, the Motor Vehicle Accident Claims Fund ("the Fund") is responsible to pay the benefits.

The issues in this hearing are:

Which insurer, Co-operators or the Fund, is responsible to pay statutory accident benefits as a result of Glen Giroux' death?
Are Allan and Sheila Giroux entitled to statutory accident benefits as a result of Glen Giroux' death, either on the basis that he was principally dependent on them for financial support, or on the basis that they were principally dependent for care on Glen Giroux?

Allan and Sheila Giroux also claim interest on any amounts owing and their expenses incurred in the arbitration proceeding.

The Fund is responsible for paying statutory accident benefits as a result of Glen Giroux' death.
Allan and Sheila Giroux are not entitled to death benefits as a result of Glen Giroux' death, since he was not principally dependant on either of them for financial support, and they were not principally dependant on him for care.

The hearing was held in London, Ontario, on June 6 and September 9 and 10, 1996, before me, Frederika Rotter, Senior Arbitrator.

Present at the Hearing:

Applicants:

Allan and Sheila Giroux

Applicants' Representative:

Matthew G. Duffy Barrister and Solicitor

Co-operators's Representative:

Stephen M. Malach Barrister and Solicitor

The Fund's Representative:

David Young Barrister and Solicitor

Sign language Interpreters:

Lorna Shuster and Laurie Farmer

The proceedings were transcribed by London Verbatim Proceedings Inc.

The witnesses who appeared and the exhibits filed at the hearing are listed in Appendix "A."

Evidence and Findings:

Glen Giroux was 24 years old when he was killed in a single-vehicle motor vehicle accident, on May 7, 1994. The car in which he was a passenger struck a tree. Glen Giroux had no personal automobile insurance coverage, and the car involved in the accident was not insured.

Under the priority rules for determining who should pay statutory accident benefits set out at subsection 268(2) of the Insurance Act, the Fund is liable to pay statutory accident benefits in respect of Glen Giroux' death unless it can be shown that he was an insured under some policy of insurance.²

Glen Giroux' parents, Allan and Sheila Giroux, claim that Glen was insured under their policy, with Co-operators, as he was their dependant. They also claim they are entitled to death benefits under Part XI of the Schedule. The Schedule extends coverage for statutory accident benefits to spouses and dependants of persons named in an insurance policy. Section 1 of the Schedule defines the term "insured person" as follows:

"insured person", in respect of a particular motor vehicle liability policy, means,

(a) the named insured, any person specified in the policy as a driver of the insured automobile, the spouse of the named insured, and any dependant of the named insured or spouse, if the named insured, specified driver, spouse or dependant,

(i) is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile ....

[emphasis added]

Accordingly, if Glen Giroux was a dependant of either of his parents, Co-operators would be liable to pay any statutory accident benefits in respect of Glen Giroux' death.

Allan and Sheila Giroux claim death benefits under both subsections (4) and (5) of section 51 of the Schedule. The applicable subsections state:

(4) If an insured person dies as a result of an accident, the insurer shall pay, in addition to any benefit payable under subsection (1) or (2),

(a) $10,000 to each person who was a dependant of the insured person at the time of the accident; ...

(5) If an insured person dies as a result of an accident and, at the time of the accident, the insured person was a dependant, the insurer shall pay $10,000,

(a) to the person upon whom the insured person was dependent or, if that person is dead or dies within thirty days of the insured person's death, to the surviving spouse of that person if the surviving spouse was the insured person's primary caregiver; or

[emphasis added]

I will deal first with Mr. and Mrs. Giroux' claims for benefits under subsection 51(5), since this question is also determinative of the issue of which insurer is responsible for the payment of benefits in this case.

Was Glen Giroux a dependant of either Allan or Sheila Giroux?

The term "dependant" is defined in section 4 of the Schedule as follows:

For the purpose of this Regulation, a person is a dependant of another person if the person is principally dependent for financial support or care on the other person or the other person's spouse.

[emphasis added]

The applicants do not assert that Glen Giroux was dependent on them for care, but claim that at the time of the accident Glen was principally dependent on them for financial support, within the meaning of section 4 of the Schedule.

The term "principally dependent for financial support" has been considered in numerous arbitration and appeal decisions. It is now settled law that for an individual to be found principally dependent on another for financial support, the dependent person must "chiefly" or "primarily" or "for the most part" derive his or her support from the other person, as opposed to other sources.³

In this case, Glen Giroux' parents assert that his history shows a lifelong pattern of financial dependancy. The Giroux concede that in the last few months of his life Glen was less dependent on them than he had been previously. However, they argue that this was a "temporary aberration" and that Glen's financial dependancy should be looked at in the context of a broader time frame. The issue of dependancy should be assessed, they submit, by looking at Glen's situation in the last few years of his life, rather than at a single "snapshot" taken at the time of the accident. Counsel for the Fund supports this view. Counsel relied on the comment of Senior Arbitrator Naylor in Raffoul and State Farm Mutual Automobile Insurance Company⁴ "that a person's position cannot be determined solely by a single 'snapshot' of his or her circumstances at that date."

With respect, I do not interpret this comment of Senior Arbitrator Naylor as endorsing a historical or "wide angled" approach to the question of dependancy. In deciding Raffoul, Senior Arbitrator Naylor was clear in holding that each case must be decided on its own facts, based on a realistic assessment of the parties' actual financial circumstances at the time of the accident. The single "snapshot" Senior Arbitrator Naylor was alluding to (and rejecting) in Raffoul focussed on the applicant's earning capacity alone, without regard to other considerations. Senior Arbitrator Naylor rejected an approach that argued that the applicant's "imputed" earning capacity should be relied on, or that the arbitrator should consider only whether the applicant was "capable of" or could have supported herself on her own earnings, in favour of a more realistic assessment of all the actual circumstances in existence at the time of the accident.⁵

In fact, most of the decided cases refer at length to the history and circumstances of a particular alleged dependancy relationship, as a context for assessing dependancy at the time of the accident. However counsel referred me to no clear case authority for the proposition that financial dependancy should be determined having regard to a number of prior years or months, rather than at the time of the accident.

In my view, the question of dependancy is a question of fact: a status, (like marital status) which can be found to exist or not exist at a particular point in time, and which may change at any particular time. Thus, in M.J.T. and Simcoe & Erie et al. ⁶Arbitrator Sampliner considered the applicant's history and found that at the time of the accident, he was (and had been for about two months) principally dependent on his parents for support, although he had not been dependent on them for support for a period of almost two years prior to that.

Similarly, in the case of Bogdan and Royal Insurance Company of Canada,⁷ Arbitrator Palmer considered the phrase "at the time of the accident" and concluded that the words are clear and unambiguous, and refer to "the moment in time when the accident occurred."⁸ She rejected a " wide angled" approach which would take future or prospective dependancy into consideration. She also rejected a " historical" approach, in favour of an analysis of the facts in existence at the time of the accident. Thus, Arbitrator Palmer found that the husband in Bogdan had been principally dependent on his wife some months before the accident took place. However, because he obtained employment four months prior to the accident, Arbitrator Palmer concluded that he was not principally dependent on his wife at the time of the accident.

I conclude that, similarly, in the present case I must determine whether or not Glen Giroux was principally dependent for support on either of his parents based on the facts which existed at the time of the accident, and not based on a historical view of Glen Giroux' financial situation.

Both Allan and Sheila Giroux testified about their son's circumstances and living arrangements prior to the fatal accident. Glen was 24 years old when he died, but his parents maintain that they always treated him as though he was still a teenager. He was never steadily employed, and they claim he was dependent on them for all his basic needs including shelter, food, toiletries and supplies, clothing, and other incidental expenses. They claim that they provided Glen with " money’s worth" in terms of items such as food and shelter, and they also gave him some cash to help look after his other needs. They claim that their contribution to Glen's support was more than what he derived from other sources.

Allan and Sheila Giroux are both deaf. Glen Giroux was their only child. He had normal hearing and communicated with his parents using sign language.

For most of his life Glen lived with his parents. They claim he never contributed regularly to the rent. The Giroux family lived in a main-floor apartment in Strathroy, Ontario, in a building which had been subdivided as a triplex. The Giroux' unit consisted of part of the main floor and the basement. The rent on the unit was $550 monthly. There was another apartment on the first (or main) floor and there was also an apartment on the second floor. The Giroux family had been living in the unit for about 15 years at the time of the accident.

In about 1991, Glen moved out of his parents' home to live with a girlfriend, Holly, for a number of months. Glen later moved back home, but lived with Holly in his parents' apartment for perhaps three or four months, until she and Glen finally separated in 1992.

Soon afterwards, in 1992, Glen started living with the Applicant Carla Dawn Graham (now Mills.) Dawn, as she was called, was then a high school student receiving General Welfare Assistance, since she was not living with her parents. The welfare records indicate that Dawn moved into the Giroux residence in November 1992.

Sheila and Allan Giroux both testified that Dawn and Glen lived together in the basement of the Giroux residence until December 1993. The welfare records confirm that Dawn continued to receive welfare at the Giroux' address in Strathroy until December 1, 1993, when she moved to London, Ontario.⁹ Her welfare assistance included a component for rent, to be paid to the Giroux. However, the Giroux testified that Dawn never paid them any rent while she was living with Glen, after the first week, when she paid $50. Sheila Giroux testified that Glen occasionally contributed money for household expenses, in amounts of $100 or less. He and Dawn also occasionally bought, with their own funds, groceries and supplies such as bread and milk.

Dawn moved to London at the beginning of December 1993 because she was expecting a baby and wanted to be close to the hospital. Welfare helped her with the first and last month's rent deposit for an apartment in London.¹⁰ Sheila Giroux testified that Glen moved to London "later" and stayed there with Dawn for about one month before their son, the Applicant Samuel Giroux-Graham, was born on December 31, 1993.

After a couple of months, Glen, Dawn and Samuel moved back to live with Allan and Sheila Giroux in Strathroy. They shared the main floor apartment with the older couple for about a month (March, 1994). During this time, they paid no rent. At the end of March or the beginning of April, 1994, Dawn, with Samuel, moved into the second floor apartment in the building, which she shared with Christine Brown, Christine's boyfriend, Robert Mizon,¹¹ and their child. The Giroux testified that Dawn shared payment of the rent with Christine.¹²

Both Sheila and Allan Giroux confirmed that Glen moved upstairs with Dawn and Samuel. He and Dawn moved their bed upstairs, where Glen slept and generally spent time when he was not working. Sheila Giroux testified that Glen wanted "some freedom," and preferred to be with people of his own age. She testified "he would come down to visit every so often." Sheila and Allan Giroux testified that Glen kept most of his clothing, toiletries and other personal effects in his room in the Giroux' apartment, and that he often showered downstairs. This evidence was confirmed by Scott Slaughter, a family friend. Sheila Giroux also claims she did most of Glen's laundry.

Both counsel for the Giroux and for the Fund submitted that Glen was dependant on his parents for accommodation, based on the facts that he and Dawn lived with them throughout most of 1993, moved back in with them for one month in March, 1994, and that Glen kept most of his personal belongings in his parents' home. However, the Giroux' evidence is that as of April, 1994, Glen largely spent his time upstairs, with Dawn and the baby.

The evidence from Dawn Graham's welfare file is that at all relevant times, Dawn was receiving welfare assistance either as a single person or as a single parent. She never indicated to the welfare authorities that she was cohabiting with her spouse. In April 1994, when she re-applied for social assistance in Strathroy, she solemnly declared in her application form that she was living with friends, Chris Brown, Rob Mizon and their child. She told the welfare worker that the father of the baby was "someone who moved back to Thunder Bay."¹³

In the circumstances, then, I conclude that Glen kept his belongings downstairs at his parents' home because he did not wish the welfare authorities to learn that he was living with his wife and child. That information would have disqualified Dawn from receiving assistance as a single parent. I find that, at the time of the May 1994 accident, Glen was living with Dawn, and was not living with his parents or dependent on them for accommodation.

Both counsel for the Giroux and counsel for the Fund argued that the fact that Glen was living upstairs was an "aberration," and that this case is similar to J.B. (Minor) and Liberty Mutual.¹⁴ In that case Arbitrator Blackman found that a young girl, J.B., was a dependant of her mother, even though at the time of the accident, J.B. was not living with her mother but with her grandparents. In J.B.'s case, Arbitrator Blackman found that the living arrangements were a "temporary aberration" and the fact that J.B. was living elsewhere for some months did not break "the chain of principal dependancy" on her mother. J.B.'s mother had made the decisions about where she should live, and otherwise financially supported and cared for her. J.B. had no independent source of support, and Arbitrator Blackman, on all the facts, found she was dependent on her mother. I find that the facts in the present case are not analogous to J.B.'s case. Glen Giroux was a grown man who was employed and had a spouse and child. He made his own decisions about his living arrangements. I find that in his situation, the "temporary aberration" would be returning to live in his parents' home from time to time.

Sheila and Allan Giroux also claim that even after he and Dawn moved upstairs, Glen ate about half his meals with her and her husband, and half upstairs. Sheila estimated that when Glen was alive she spent perhaps $150 weekly on food, whereas now she spends about $100 weekly.

I do not accept Sheila Giroux' evidence that Glen Giroux took half his meals with his parents, after he and Dawn moved upstairs. He was working full time during this period and would not have had breakfast and lunch at his parents' home. Allan Giroux testified that Glen got up later than he and Sheila did, and did not breakfast with them. Glen would have lunch at work.

I accept that Glen probably did have some dinners with his parents. The Giroux were generous and loving parents, who were happy to share their food with their son. In any event, the maximum amount claimed by the Giroux is $200 per month on food for Glen.

Sheila Giroux stated she did most of Glen's laundry and bought many of his clothes. She also bought cleaning supplies and household toiletry items such as shampoo, which Glen freely made use of. The Giroux provided no estimates of the amounts they spent on cleaning, laundry, toiletries and clothing for Glen. Sheila Giroux testified that they also paid for other miscellaneous items: for example, $450 for dental surgery for Glen in November 1993.

The Giroux testified that they gave Glen small sums of money from time to time, when he needed it. They estimated this at perhaps $75 to $100 per month.

Both Allan and Sheila Giroux had automobiles of their own, which Glen did not drive. Glen had the use of a vehicle until April 1994, when it broke down, according to Sheila Giroux. Glen paid for his own gas and repairs. This car was apparently insured by Marilyn Graham, Dawn's mother, but the insurance coverage had been cancelled effective April 22, 1994.¹⁵

As is the case in most family situations, Allan and Sheila Giroux did not keep precise records of the amounts they spent on Glen. I find that they generously assisted their son to the extent they could, within their means. However, Allan and Sheila Giroux are not particularly well off. In 1994 Allan Giroux earned a total of approximately $18,000.¹⁶ Sheila Giroux earned about $13,500 in 1994,¹⁷ from part-time employment. Accordingly, that year Allan and Sheila together earned about $2,625 per month (pre-tax).¹⁸

Glen Giroux had a chequered work history. He had quit school at about age fifteen (after one year of high school) and, as noted above, was sporadically employed throughout the rest of his life. He worked seasonally or at short-term positions, doing various unskilled or semi-skilled jobs. In between, he received welfare and other government benefits. He was injured at work in 1992, according to Allan Giroux, and received workers'compensation benefits for "about one year".¹⁹ He also received unemployment insurance benefits from time to time.

The information in his 1993 income tax return (the year before the fatal accident) shows that Glen Giroux had approximately $8,500 in income.²⁰ He had worked for Henry Linker Roofing until July 1993²¹ and had earned approximately $3,100. He also received social assistance (approximately $3,500) and unemployment insurance benefits (approximately $1,900) that year.

He continued to receive unemployment insurance benefits in January 1994. Then on January 17, 1994, shortly after his son was born, Glen Giroux started working for Glendale Recreational Vehicles, in Strathroy. He was working full time at Glendale (40 hours weekly) until the accident, earning $8.25 per hour or $330 per week. This comes to $1,430 per month. He had earned approximately $5,000 at Glendale in 1994.²²

Glen Giroux had some expenses other than those related to his basic needs. The most significant was a loan repayment to the Bank of Montreal, at $375.61 per month, for a car loan which he had negotiated in 1990. The evidence (from his parents, and as documented by the bank²³) is that Glen Giroux was usually behind in making his loan payments. However, he did make payments of over $5,000 in 1993. He had repaid about $2,200 more in 1994.

Apart from his loan repayments, and the small amounts he occasionally gave his parents, Sheila and Allan Giroux testified that Glen Giroux also helped Dawn with items for the baby: formula, diapers and the like, and indicated that he also might have helped Dawn with the rent. He paid for gas and for repairs for the car he drove to work. He smoked a pack of cigarettes a day, drank alcohol occasionally, and had pizza and pop on weekends. Sheila and Allan Giroux testified that Glen mostly spent his money on himself, for recreation and fun.

Apart from the loan repayments, I received no documentation about any of Glen Giroux' expenses. However, at the time of his death, Glen Giroux was earning about $1,400 monthly. Sheila and Allan Giroux together were earning $2,625 per month. Even if I deduct his loan payments (at $400 per month), in order to find that Glen was principally dependent on his parents for support, I would have to find that Sheila and Allan together were spending more than $1,000 monthly to support him. This would leave them with only $1,600 to spend for their own support, including rent ($550 per month), food, utilities and all other expenses. I find this scenario quite implausible.²⁴

The Giroux made a significant financial contribution to their son's comfort and well-being. However, their evidence, at its best, is that they spent about $300 monthly on Glen, for food and occasional gifts of cash. Even allowing a generous $150 per month for a portion of their rent and utilities to be attributed to Glen and another $150 for sundry items such as clothing, toiletries, laundry and the occasional unusual expense, such as the dental bill, would only bring the total amount the Giroux spent on their son to about $600 per month.²⁵ The evidence is that Carla Dawn Graham also made some contribution to Glen's support, at least in respect of the rent.²⁶Accordingly, I cannot conclude that at the time of the accident Glen Giroux derived his support chiefly, or for the most part, from his parents. As I find that he was not principally dependent on his parents for support, he cannot be considered their dependant within the meaning of section 4 of the Schedule.

It follows that Allan and Sheila Giroux are not entitled to a death benefit under subsection 51(5) of the Schedule. It also follows that the Fund, and not Co-operators, is responsible for paying statutory accident benefits in this case.

Were Allan and Sheila Giroux principally dependent on Glen Giroux for care?

Allan and Sheila Giroux are entitled to a benefit under subsection 51(4)(a) if they can establish that, at the time of the accident, they were dependants of Glen Giroux. Allan and Sheila Giroux claim that they were principally dependent on Glen for care, and accordingly qualify for the benefit. They base their claim on the fact that they are both deaf, and relied on their son for interpretation services and communication with the outside world.

The Giroux both conceded that at the time of the accident, they did not depend on Glen for their ordinary day-to-day personal care needs. They were both able to look after themselves and attend to their basic requirements: they got up in the morning, attended to their own personal hygiene, prepared their own food, got ready for and travelled to work (both Allan and Sheila drive their own vehicles) worked regular hours at their jobs, and generally ran their own lives, quite independently. Like Glen, Allan Giroux was working at Glendale at the time of the accident, but he testified that he and Glen drove to work separately, each in his own vehicle. Allan Giroux testified that he liked to get in to work early, and Glen was generally late.

Allan and Sheila Giroux have a joint back account and look after their own financial affairs. They travel independently for family visits, for holidays and recreation. At the time of the accident, Sheila Giroux was able to shop, cook, clean her own home, do the laundry and generally run her household, on her own, and also work at her job at least 28 hours a week.

Sheila and Allan Giroux testified that they were dependent on Glen to assist them in their communications with others. He served as their sign-language interpreter and go-between, for functions such as dealing with telephone communications, dealing with doctors and making medical appointments, attending to banking and insurance business, complicated or unusual purchases, and the like. Glen first learned to sign at about the age of six, and as he grew older, his parents relied on him more and more.

Allan Giroux testified that he spent a considerable amount of time working on car repairs, since he drove an old automobile that was always in need of repairs. He testified that he used to rely on Glen to go with him to the junkyard, about once a week, on Saturdays, to look for car parts. Glen would also order car parts for his father over the phone.

The Giroux' situation is complicated by the fact that Allan and Sheila are both deaf, and were also raised in Francophone families. They originally learned to sign in French, and then had to make the transition to English signing. Neither of them attained a high level of education, so their English reading, writing and spelling skills are not very advanced. They relied on Glen not only for interpretation and assistance in communicating with others, but also in reading and understanding difficult and more complicated documents and forms. They now must look to others, such as family friends, for this sort of assistance. The Giroux testified, and I accept, that their lives were much more comfortable and much less difficult and stressful when they had their son to help them.

The Giroux are able to read and write at a primary level. They also have some ability to read lips, according to their former landlord, Ken Rosu-Myles. They are able to function at work. Allan Giroux testified that some of his co-workers sign in a rudimentary fashion, and Allan himself has a limited ability to speak, although he does not hear. Ken Rosu-Myles, testified that he regularly saw the Giroux about twice monthly (to pick up the rent, etc.) and normally communicated with them by writing notes. He often saw Glen, who would interpret using sign language, when he was there.

The Giroux are able to communicate adequately with Scott Slaughter, a long-time family friend who has some signing ability. I conclude that Sheila and Allan Giroux did not rely on Glen for routine communications with known or familiar individuals, in familiar situations (such as at work, or at home with their landlord.) They were dependent on their son's assistance for less regular transactions and communications, as described above. However, on the facts of this case, I cannot conclude that this means that Sheila and Allan Giroux were principally dependent on Glen Giroux for care.

The term "care" is not defined in the Act or the Schedule. I agree with Arbitrator Renahan, who found in Weiler and Personal Insurance Company of Canada,²⁷ that the term, as it is used in the Schedule, focuses on services which a person requires in respect of his or her personal needs and daily activities. Arbitrator Renahan cited the comments of Linden, J., to the effect that care includes such things as "feeding, cleaning, transporting, helping and protecting another person."²⁸I find that care entails attending to both the physical and emotional well-being of another person,²⁹ usually in circumstances where the individual cared for lacks the ability or resources to attend to their own needs. Part IV of the Schedule, which deals with Caregiver Benefits, suggests that a person requires care either because they are less than sixteen years of age and accordingly not of age to look after their own needs (including physical, emotional and financial needs), or because of a physical or mental incapacity which prevents them from attending to their own needs.

Thus, in order to find that either Sheila or Allan Giroux were principally dependent on Glen Giroux for care, I must carefully consider their requirements for care, within the context of the Schedule. I would have to conclude that they received more care from Glen Giroux than what was available from their own and other resources, using the same test referred to for deciding whether an individual is principally dependent on another for financial support.³⁰

I find the Giroux' deafness and marginal literacy do not together amount to a dependancy on another for care. I do not agree with the submissions of counsel, who suggested that Allan and Sheila Giroux' deafness in and of itself creates a fundamental and overwhelming requirement for care. On the contrary, the facts in this case show that the Giroux are largely self-supporting for care. The evidence is clear that the Giroux have the independent ability to look after their own personal needs for food, clothing, self-care and hygiene, transportation, and financial support. They were able to independently care for and raise their son to maturity. They have some ability to communicate with others for routine daily purposes. There is no evidence that, due to their deafness, they required any extraordinary emotional support from their son, or were otherwise dependent on him for their physical well-being.

I have no doubt that the death of their only son was a devastating loss to Sheila and Allan Giroux, a loss that can never be replaced. The evidence before me suggests Glen Giroux was a caring and attentive son.

I am satisfied that Glen Giroux provided his parents with affection, support, and frequent assistance in communicating with others and dealing with difficult or complex written material. However, I find that this falls far short of providing the degree of care for his parents required to show dependancy for care, in the sense that the term is used in the Schedule.

Expenses

This is a case that raised novel factual issues. Although Allan and Sheila Giroux were not successful, I have no doubt that their claim was sincere and genuinely motivated. The hearing proceeded in a straightforward and expeditious manner.

Subsection 282(11) of the Act gives me the discretion to award applicants the expenses they have incurred in an arbitration proceeding. I am satisfied that in this case, Allan and Sheila Giroux should be awarded their expenses.

Order:

The Motor Vehicle Accident Claims Fund shall pay statutory accident benefits as a result of Glen Giroux' death.
Sheila and Allan Giroux are not entitled to death benefits as a result of Glen Giroux' death, either under paragraph 51(4)(a) or 51(5)(a) of the Schedule.
The Motor Vehicle Accident Claims Fund shall pay Allan and Sheila Giroux' expenses incurred in respect of this arbitration proceeding.

Frederika Rotter Senior Arbitrator

Date

Appendix "A"

Witnesses:

Sheila Giroux

Allan Giroux

Scott Slaughter

Ken-Rosu Myles

Geoffrey Chandler

Exhibits:

Exhibit 1

Applicant's Production Brief

Exhibit 2

Applicant's Supplementary Production Brief

Exhibit 3

Record of Carla Graham - Welfare (social assistance)

Exhibit 4

Income Tax records of Carla Graham for 1992 and 1993

(2) The following rules apply for determining who is liable to pay statutory accident benefits:

In respect of an occupant of an automobile, i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured, ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant, iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose, iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.

Footnotes

The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
The subsection states:
Raffoul and State Farm Mutual Automobile Insurance Company (September 21, 1994), OIC A-004476 , subsequently adopted in numerous other decisions. The test was summarized in Towsley and Royal Insurance Company of Canada (February 16, 1996), OIC A-010196 and OIC A-010717.
Supra. The concept of the "snapshot" was earlier referred to by Arbitrator Draper in Donohue and State Farm Mutual Automobile Insurance Company (August 31, 1994), OIC A-006756.
This view is forcefully endorsed in Raffoul and State Farm Mutual Automobile Insurance Company (April 15, 1996), P-004476, (appeal decision) at p. 5.
M.J. T. and Simcoe and Erie General Insurance Company and Pilot Insurance Company (December 16, 1994), OIC A-007417 and OIC A-007645
Bogdan and Royal Insurance Company of Canada (February 6, 1996), OIC A-014959
As held in Vanderwal and State Farm Mutual Automobile Insurance Company, (1994) 1994 CanLII 10575 (ON CA), 20 O.R. (3d) 401, (Div. Ct.), cited at p.6 in Bogdan
Exhibit 3, Welfare file of Carla Dawn Graham
Ibid
Robert Mizon was also killed in the fatal accident in which Glen Giroux lost his life.
Carla Dawn Graham (now Mills) was not called to testify at the arbitration hearing.
Exhibit 3, copy of Strathroy Welfare file of Carla Dawn Graham: application dated April 13, 1994 and narrative report dated April 14, 1994.
J.B. (Minor) and Liberty Mutual Insurance Company (July 30, 1996), OIC A-000008
Letter from Pilot Insurance Company dated April 30, 1996, confirming cancellation of Marilyn Graham's insurance policy. None of the parties are asserting that Pilot is responsible for paying benefits in this case.
Exhibit 1, Tab 2, Income Tax returns of Allan Giroux
Exhibit 1, Tab 3, Income Tax returns of Sheila Giroux
i.e $13,500 + $18,000 = $31,500, divided by 12
Exhibit 1, Tab 4, Glen Giroux' income tax return for the year 1992, showed he received $4,562 in workers compensation benefits.
Exhibit 1, Tab 4, unaudited Income Tax Return of Glen Giroux for 1993, prepared by H & R Block
Exhibit 1, Tab 8, letter dated October 24, 1994
Exhibit 1, Tab 4, tax return and Tab 6, letter from Glendale Recreational Vehicles
Exhibit 1, Tab 1, documents pertaining to a loan from Bank of Montreal
The scenario becomes even less plausible when one takes into account the effect of income tax. Mr. and Mrs. Giroux would be left with proportionally less income, after taxes, because both were paying taxes (and Glen paid income taxes only once.)
I do not allow or attribute any financial value to the "services" such as laundry, that Sheila Giroux claims she provided for her son. I heard no evidence as to the value of these services. Further, the evidence shows, as will be seen below, that Glen Giroux in return also provided valuable services to his parents.
Carla Dawn Graham was receiving $767 in welfare monthly. As noted, she paid for a share of the rent in the upstairs apartment unit.
Weiler and Personal Insurance Company of Canada, (April 1, 1996), OIC A-95-000259
Thornborrow v. MacKinnon (1981), 1981 CanLII 1945 (ON HCJ), 32 O.R. (2d) 740 as cited in Weiler (supra,), p. 10.
As formulated by Arbitrator Blackman in J.B. (Minor) and Liberty Mutual Insurance Company (supra, note 14). The case law supports including an emotional component, as found in both J.B.(Minor) and Weiler (supra).
Weiler, supra, note 27. As Arbitrator Renahan has commented, the determination in respect of care cannot be made with the same mathematical certainty.

Allan Giroux et al. v. Co-operators General Insurance Company et al., 1997 ONICDRG 228

Case Summary

Present at the Hearing:

Evidence and Findings:

Was Glen Giroux a dependant of either Allan or Sheila Giroux?

Were Allan and Sheila Giroux principally dependent on Glen Giroux for care?

Expenses

Order:

Appendix "A"

Footnotes