Neutral Citation: 2001 ONFSCDRS 88

FSCO A00-001179

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA DEL ROCIO CRUZ

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Lawrence Blackman

Heard:

May 7 and 9, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sam C. Pitaro for Ms. Cruz

Christopher J. Schnarr for Royal & SunAlliance Insurance Company of Canada

Issues:

On August 28, 1999, the Applicant, Maria del Rocio Cruz, was injured in a car accident in Quebec, while visiting that province with friends. The vehicle in which she was a passenger was insured by Royal & SunAlliance Insurance Company of Canada ("Royal"). At the time of the accident, Ms. Cruz was living in Toronto and enrolled in a course of study to learn English as a second language. Ms. Cruz was a citizen of Mexico and had lived her entire life in that country, other than the period of less than one month she had been in Canada before this accident.

As a result of her injuries sustained in this accident, Ms. Cruz applied for statutory accident benefits from Royal, payable under the Bill 59 Schedule.¹ Royal denied Ms. Cruz's entitlement to such benefits, asserting that Ms. Cruz was not an "insured person" under the Bill 59 Schedule, which is a pre-requisite to such entitlement. As this accident took place outside Ontario, in the circumstance of this case, entitlement required residency in Ontario. Royal maintains that Ms. Cruz was only attending school in Ontario for three months and was to return to Mexico in December. As such, Royal submits that Ms. Cruz was not a resident of Ontario. Royal submits that Ms. Cruz is entitled to Quebec accident benefits.

Ms. Cruz submits that at the time of the accident she was living in Toronto for an indefinite period of time, in order to become fully fluent in English. She first argues that she meets the section 2 meaning of resident when that provision is looked at in isolation. She further argues that residency must be interpreted in light of section 57, which sets out the pre-requisites to one electing between Ontario or out-of-province accident benefits. These pre-requisites include being authorized by law to be or to remain in Canada and living and being ordinarily present in Ontario. Ms. Cruz submits that she meets these requirements, and hence, by extension was a resident of Ontario at the time of the accident and, therefore, entitled to benefits under the Bill 59 Schedule.

There was no suggestion by the Applicant that she is not entitled to Quebec accident benefits.

The parties were unable to resolve their disputes through mediation, and Ms. Cruz applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").

Accordingly, the preliminary issue in this arbitration proceeding is:

1. Is Ms. Cruz an "insured person" as defined in section 2 of the Bill 59 Schedule?

Result:

1. Ms. Cruz is not an insured person as defined in section 2 of the Bill 59 Schedule.

EVIDENCE AND ANALYSIS:

1. The Facts

Certain facts are essentially uncontested. I make the following findings, based on the oral testimony and the exhibits filed:

Ms. Cruz was born on June 30, 1973 in Mexico. She is a Mexican citizen. Spanish is her native tongue. Prior to August 1999, she had not travelled anywhere where she did not speak the language. At the time of the accident, Ms. Cruz was engaged to be married. Her fiancé lives in Mexico.

Ms. Cruz is a public accountant. On October 1, 1998, she was hired by Automotriz "Cruz," S.A. de C.V. ("Automotriz") in Mexico City, whose business is the purchase and sale of automobile parts. A significant portion of the company's business is international, specifically with English-speaking nations. In or about the spring of 1999, the company decided to promote Ms. Cruz to a new commercial department, to expand Automotriz' activities in the international market.

Ms. Cruz had only slight knowledge of English. She discussed with her employer the necessity of her learning to speak, read and write English to be able to deal with future clients and business people in the United States and Canada in her new capacity. Ms. Cruz's discussions were with Mr. Ángel Juárez Córdova, the Administrative Manager at Automotriz, whose duties included the company's human resources. It was decided that Ms. Cruz would study English in Canada. Her employer agreed to pay her salary while she was studying, as well as her schooling and associated expenses such as books, food, transportation and accommodations. Automotriz viewed its educational funding of Ms. Cruz to be a business investment. The company's condition was that Ms. Cruz return to Mexico to head its new department. The arrangements were verbal; nothing was reduced to writing.

The company left it to Ms. Cruz to make the necessary arrangements to study in Canada. Canada was chosen because it was thought to be a good place to study and because of the favourable rate of exchange.

I find that another reason for Ms. Cruz choosing Canada to study was that her younger brother, Elias, had arrived in Toronto at the end of April 1999 to study English as a second language, his own employer having given him an opportunity to learn English abroad. In May 1999, Elias Cruz found out that his sister intended to study English. He investigated on her behalf various schools and accommodations in Toronto, as well as air flights. Prior to his sister's arrival in Canada, Elias Cruz was aware that his sister would require a student authorization to be issued by the Canadian government, should she wish to study English for more than three months in this country.

On Elias' recommendation and with his assistance, Ms. Cruz was enrolled in a beginner general English program on July 7, 1999, at the Pacific Language Institute, Inc. ("PLI") in Toronto. Her brother had studied at that school, before advancing to the University of Toronto. Ms. Cruz's studies were to begin August 3, 1999. Ms. Cruz was to start an immersion program of 20 hours a week in August and then proceed to a more intensive program of 30 hours a week in September and October. Her PLI application form shows that her visa in Canada would be that of visitor (the entry for student visa being left blank). The application also indicated that she would need a "homestay family" starting August 1, 1999 and that she planned to stay five months.

Prior to arriving in Canada, Ms. Cruz had not visited the Canadian embassy in Mexico, nor had she made any inquiries of Canadian or Mexican immigration officials, nor had she investigated whether she would still be covered under her Mexican insurance coverage should she be out of that country for an extended period of time. Ms. Cruz had never previously travelled abroad for business purposes before 1999, nor had she ever gone away for any period greater than two weeks. Her brother was the only person Ms. Cruz knew in Toronto.

Ms. Cruz arrived at Pearson International Airport on August 1, 1999. Her plane ticket had a return date to Mexico City of December 20, 1999. Ms. Cruz gave the customs officer a letter written in English by her brother. Her passport was stamped December 31, 1999, which Ms. Cruz understood to mean that she could legally remain in Canada until that date.

A Visitor Record was issued on August 1, 1999 by Citizenship and Immigration Canada. It indicated that Ms. Cruz "must leave Canada by 31 Dec 1999." An automatic condition that Ms. Cruz was prohibited from attending any educational institution and taking any academic, professional or vocational training course was amended by a notation that the "subject is allowed to study English as a second language for maximum period of 3 months. Plans to study at Pacific Language Institute, Toronto." Citizenship and Immigration Canada has no notation that Ms. Cruz intended to study English for more than three months.

Elias Cruz met his sister at Pearson and assisted her through immigration. He showed her how to get around Toronto and advised her to get a Metropass, which she did. He also recommended Mexican restaurants to her. Her brother had also made arrangements for Ms. Cruz to stay with the family of Ms. Sherry Brown in Toronto, as part of PLI's homestay program. At Ms. Brown's home, Ms. Cruz was provided with a bedroom with a bed, a dresser and a mirror.

Ms. Cruz had brought with her three or four pieces of luggage, containing clothes and toiletries, as well as pictures of her parents, a stuffed bear and an alarm clock. She also brought a picture of her boyfriend in her purse. Most of Ms. Cruz's personal possessions, including most of her photographs, were left in Mexico. No furniture was sent for from Mexico. I received no evidence that Ms. Cruz purchased any furniture or household items in Canada.

Ms. Cruz brought with her to Canada approximately $1,100 Canadian. She also had use of a credit card. She did not open a bank account in Canada prior to the accident, nor did she make arrangements to have her mail forwarded to Toronto. Ms. Cruz had, however, set up an e-mail address at PLI to communicate with her family and friends in Mexico.

Ms. Cruz began her studies at PLI on August 3, 1999, at the lowest of eight levels of study. I accept the uncontradicted evidence of Ms. Jennifer Cutting of PLI, that on average, it takes two to three months to move from one level to another. Her evidence that it would take from eight to fifteen months to learn English to be able to function competently was not challenged.

On August 20, 1999, Elias Cruz returned to Mexico. On August 28, 1999, Ms. Cruz was significantly injured in a car accident in the Province of Quebec while a passenger in a rented van, in which she was asleep until just before the van crashed. She was taken by ambulance to hospital, where she remained for a week. Upon discharge from hospital, she moved into a hotel because the home where she was staying was not equipped for her wheelchair.

While staying at the hotel, Ms. Cruz was visited by a Royal representative, Ms. Gillian Colucci, and a Spanish-speaking translator on September 10, 1999. Ms. Cruz's brother Elias and her mother were present throughout the interview. Ms. Cruz was in bed, in obvious pain.

By letter dated September 8, 1999, Automotriz terminated Ms. Cruz's employment on the basis that their expansion project could not wait for her indefinite return. A replacement was hired, who also had very little knowledge of English. Automotriz paid this new employee a salary for a six-month period to learn English full time in Mexico. For the last seven months, this employee has worked half-time (four hours a day) and studied English half-time (also four hours). The employee's study of English is coming to an end.

Ms. Cruz, at points in her evidence, maintained that her stay in Toronto was indefinite, that there was no set completion date for her studies and that her employer was prepared to give her all the time that was necessary to become totally fluent in English. She repeatedly stated that her intent was to stay in Toronto until she learned to speak, write and/or read English "100 per cent." Her brother used the same term.

I do not accept this testimony. At its very best, the Applicant's case is that her employer had given her some 12 to 18 months to learn English in Canada. While an exact final date for the completion of her studies may not have been nailed down, certainly her employer (which according to Mr. Cordova saw this training as a company investment, from which one can reasonably conclude they wished to realize a return as quickly as possible) in no way saw this educational opportunity as open-ended or as a blank cheque.

Ms. Cruz further testified that at the time of her accident she intended to leave Toronto on December 20, 1999 only to spend the holidays with her family and then return to Toronto in January to continue her English studies. She testified that it was only a few days before her accident that she discovered, from acquaintances, that in order to continue her studies in Canada beyond three months, she required a government student authorization. Ms. Cruz further testified that before leaving for Quebec she telephoned her brother in Mexico, who advised that this was an easy process. Ms. Cruz stated that it was her intention to attend to these legalities upon her return from Quebec.

Elias Cruz confirmed his understanding that obtaining a student authorization was a very easy process. He testified that he had not informed his sister earlier of this requirement, thinking that as this was his sister's first time out of the country, he did not want to involve her in matters that were not important.

I do not accept that at the time of the accident Ms. Cruz had a settled intention to study English in Canada for 12 to 18 months and that would have occurred, but for this accident.

I find that although there was a possibility of extension both of Ms. Cruz's schooling and her stay in Canada (by return visit), I am not persuaded that this was by any means a probability, as no concrete action had yet been taken in this regard at the time of the accident. I find that at that point, any continuing stay in Ontario after December 1999 was still very much "up in the air."

At the time of the accident, Ms. Cruz was still required to leave Canada by December 31, 1999. She did not have a return air ticket from Mexico City to Toronto, nor had she made any arrangements to return. Her PLI enrollment ended in October 1999. She indicated that she wanted to see whether she liked PLI. She conceded on cross-examination that she had not made inquiries of any facility for study past that date. She had not taken any step to obtain a student authorization. She conceded on cross-examination that her study plans would be uncertain without such authorization. She conceded that her stay in Toronto depended on her progress.

I find it inconceivable that Ms. Cruz only became aware of the student authorization requirement a few days before her accident. To accept this, I would have to believe that Ms. Cruz, a professional woman, left all legal aspects of her travel to Canada entirely to her younger brother, that her brother, an educated man, never told Ms. Cruz about this requirement because it was "not important," that this requirement for study of more than three months was never made known to Ms. Cruz while she was passing through immigration with her brother's assistance (despite the maximum period being noted on her Visitor Record upon her arrival at Pearson). I would also have to believe that the three-month course of study at PLI which Ms. Cruz entered into through the assistance of her brother was merely coincidentally picked without any consideration or discussion with Ms. Cruz of the immigration requirements. I do not accept this.

Rather, I am persuaded that Ms. Cruz's stay in Toronto was time-limited, as there were numerous considerations to be determined before she committed to any longer stay, including one or more of the following:

• whether she wished to stay away from Mexico for a longer period from her family, friends and fiancé, especially once her brother returned to Mexico and especially considering that she had never been in a country where Spanish not spoken;

• whether she would wish to remain in Ontario or study elsewhere because of accommodation and educational facilities or other reasons; and,

• whether her employer would agree to a further stay in Ontario.

Ms. Cruz did not have a written agreement with Automotriz regarding her period of study. While her employer may have spoken of the possibility of 12 to 18 months of study, Mr. Cordova was optimistic that because of Ms. Cruz' intelligence, she would not require such a lengthy period to become suitably fluent. Mr. Cordova emphasized the investment aspect of this training. The company wished to expand, and the longer Ms. Cruz' training took, the longer this plan would be delayed. I find the haste in which Automotriz terminated Ms. Cruz' employment after the accident pertinent. Despite wishing Ms. Cruz a "speedy recovery," her employer was of the view thirteen days post-accident that it could not wait to see how much longer she might be off work. I find that it was far from a probability that Automotriz would in fact have waited 18 months for Ms. Cruz to return to her employment from a paid training period abroad, especially considering that Ms. Cruz' replacement was given a paid leave of only six months, her further English training being conducted while working half-time in Mexico.

I am persuaded, however, based on the evidence specifically of Mr. Joe Carelli, a Regional Program Advisor of Citizenship and Immigration Canada, and the experience of Ms. Cutting at PLI, that it is probable that Ms. Cruz would have been able, if so inclined, to apply for a student authorization with the requisite documentation, submit the necessary paperwork to a Canadian visa office such as in Buffalo, New York, allow for a four to six week processing period, obtain a one-day visa to the United States, attend at the Buffalo visa office, obtain a student authorization and re-enter Canada, all prior to the end of October 2000.

I further accept Mr. Carelli's evidence that one can have a dual intent upon initially entering Canada, that is enter as a visitor with the intent to legally change that to that of student, as long as one is candid about that.

2. The Law

To be entitled to any benefits under the Bill 59 Schedule, Ms. Cruz must be an "insured person" as that term is defined in section 2. The Applicant terms this the "threshold to coverage section." Ms. Cruz submits that she comes within the following threshold provision:

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

(c) in respect of accidents outside Ontario, a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at some point during the 60 days before the accident;

[emphasis added]

The term "resident of Ontario" is not defined in the Bill 59 Schedule. The parties agree that there are no cases directly on point.

The Applicant, however, relies on the proposition stated in Olson v. Ontario, [1992] O.J. No. 2447 (Gen. Div.), that:

Residency is a flexible concept which must be construed in accordance with the subject-matter and objects of the particular Legislation.

I agree.

The Applicant, however, in her factum, cites an excerpt from Black's Law Dictionary, 5^th edition, at page 1176, that includes the statement that "[r]esidence means living in a particular locality . . . [r]esidence simply requires bodily presence as an inhabitant in a given place."

I do not find that Olson stands for this proposition.

In that case the applicant, Clifford Olson, sought a declaration that he was a resident of Ontario within the meaning of the Election Act, S.O. 1984, c. 54. Mr. Olson, who had been sentenced to life imprisonment without eligibility for parole for twenty-five years, argued that Kingston, Ontario had become his residence within the meaning of the Election Act as his life had been centred in Ontario for the past ten years, he was to remain there for the foreseeable future (and perhaps for life) and that his ties with British Columbia had been severed.

Charron J. found that the onus of establishing residency fell upon the applicant. He held that:

His transfer to Ontario and his subsequent physical presence in that location for the next ten years cannot, in and of itself, effect a change in residency within the meaning of the Act since this move was made under compulsion and without the requisite intent to make a permanent home.

[emphasis added]

I do not find that the other two cases provided by the Applicant assist her, either.

Parkes v. Heiberg, [1992] O.J. No. 1921 (Gen. Div.) dealt with whether the plaintiff "ordinarily reside[d] outside of Ontario," in which case he would not be entitled to payment of some $35,836.46 by the Motor Vehicle Accident Claims Fund. The plaintiff was a farm worker, in Canada on a temporary worker's visa, when injured in a car accident. For each of the three prior years, the plaintiff had come from Jamaica for six months to live in Ontario in accommodations provided by his employer, where he received his mail. The plaintiff had a bank account in Ontario, filed Canadian income tax returns and considered Blenheim, Ontario to be his home. Mullen J. found that the plaintiff's residence in Ontario "was of a sufficiently permanent nature that he was at the time of the accident 'ordinarily resident' in the Province of Ontario."

MacPherson v. Macpherson (1977), 1976 CanLII 854 (ON CA), 13 O.R.(2d) 233, involved the question of which province had jurisdiction in a divorce proceeding. In considering the words "ordinarily resident," Evans J.A. (dissenting on a different point) held that:

the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community . . . I do not believe that intention alone can determine the issue of ordinary residence.

[emphasis added]

Dubin, J.A., speaking for the majority, however, did note that it would be "proper to reject the interpretation . . . which would create inconvenience and unfairness."

Both cases referred to Thomson v. Minister of National Revenue, 1946 CanLII 1 (SCC), [1946] S.C.R. 209, which involved the question of whether the appellant was liable for income tax as a person "residing or ordinarily resident in Canada." The reasoning of various of the justices has been cited in subsequent cases. Estey J., in particular, held that:

. . . one is "ordinarily resident"in the place where in the settled routine of his life he regularly, normally or customarily lives. One "sojourns"at a place where he unusually, casually or intermittently visits or stay. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question.

[emphasis added]

Estey J. was cited in Mann v. The Manitoba Public Insurance Corporation [1982] I.L.R. 1-1588 (Man. Q.B.), which involved, in part, the question in an insurance context of whether the plaintiff's son was a resident of Manitoba at the time of his accidental death. Manitoba Regulation 333/74 defined "resident of Manitoba" as any person "who is authorized by law to be or to remain in Canada and is living and ordinarily present in Manitoba" but not including a person who was "merely touring, passing through or visiting Manitoba."

In the five years before his death, the deceased had lived in Manitoba with his parents in the winter, but for the rest of the year travelled with a carnival, mainly in the United States. Thompson C.C.J. held that:

. . . in habitually returning to the place which was his home in Winnipeg for several months in each successive year, in the normal, ordinary course of his routine of life, came within the definition of 'resident of Manitoba," as contained in the Regulation.

[emphasis added]

Pertinent findings of fact were that the deceased left his personal belongings at his parents' home (although he took his golf clubs and fishing rod away with him), there was no evidence of his accommodation arrangements away from Manitoba nor any evidence of any furniture or other chattels or possessions owned by the deceased in the United States.

The above comments of Estey J. were also cited in Tanas Estate v. Wawanesa Mutual Insurance Co. (1990), 47 C.C.L.I. 282 (Ont. H.C.). Montgomery J., in finding that Mr. and Mrs. Tanas were not "residing in the same dwelling as the named insured," dismissed their claim under the underinsured motorist endorsement of their son-in-law's automobile insurance policy. The Tanases had come to Canada on three occasions. Their return air fare was paid for by their daughter and son-in-law living in Canada, who fed and housed them on their visits, each visit lasting two or three months. The Tanases' stay in Canada was held to be:

. . . a normal visit by parents to their children in another country. They had return air tickets to Greece. They had a home in Greece. They had no intention of remaining in Canada.

In Thomson, Kerwin J. had stated that:

There is no definition in the Act of “resident” or “ordinarily resident” but they should receive the meaning ascribed to them by common usage. When one is considering a Revenue Act, it is true to state, I think, as it is put in the Standard Dictionary, that the words "reside" and "residence" are somewhat stately and not to be used indiscriminately for "live", "house" or "home". The Shorter Oxford English Dictionary gives the meaning of "reside" as being "To dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place”. . . On the other hand, the meaning of the word "sojourn" is given as "to make a temporary stay in a place; to remain or reside for a time".

In Appel (Guardian ad litem of) v. Dominion of Canada General Insurance Co., 1997 CanLII 4132 (BC CA), [1998] 1 W.W.R. 592 (B.C.C.A.), in interpreting an exclusion clause under a homeowner's policy of insurance, Prowse J.A. cited the above passage of Kerwin J. and stated that:

Although one must be cautious in adopting definitions derived from cases decided under the Income Tax Act or other statutes when attempting to ascertain the meaning of similar words in an insurance policy, the above passage has been quoted with approval in the insurance context.

The Court then concluded that the words "residing in" "import a connotation of, if not permanence, at least an extended stay; something beyond a temporary visit."

Re Fulford and Townshend, 1970 CanLII 265 (ON HCJ), [1970] 3 O.R. 493 (Ont. Surr. Ct.), involved a consideration of the word "reside" in the Infants Act, R.S.O. 1969, c. 187. Cudney, Surr.Ct.J. held that:

in view of s. 10 of the Interpretation Act, the word “reside” nder s. 1 of the Infants Act should be given "a fair, large and liberal construction and interpretation to best ensure the attainment of the Act". I find that it should be broadly, and not narrowly, interpreted. The word "reside" means more than physical presence. In addition, there must be the intent to remain for longer than a temporary period. To constitute residence, there must be physical presence plus intent.

[emphasis added]

The Court further held that:

From the decided cases relating to the meaning of residence, it would appear that generally "residence" means a person's permanent place of abode and not his temporary place of abode. A person's mere temporary abode in a place such as his being there on vacation, a business trip, in hospital or at school, does not constitute residence in that place. The mere physical presence of a person in a place does not constitute his residence there but in addition he must have the present intention of remaining there for some time but not necessarily for all time . . . [emphasis added]

Re Fulford and Townshend was followed in Boilard v. Morozuk, [1995] O.J. No. 1768 (Gen. Div.), which involved, in part, a consideration of the meaning of "residing in the same dwelling premises" in an SEF 44 automobile insurance endorsement. Desmarais J. held that "[i]n order for residency to be established, therefore, there is a requirement that there be a present intention to remain and permanence" [emphasis added].

Likewise, in Snair v. Halifax Insurance Nationale-Nederlanden North America Corp., (1995), 1995 CanLII 4400 (NS SC), 31 C.C.L.I. (2d) 279 (N.S.S.C.), in interpreting the words "residing in your household" in an exclusion clause in a policy of insurance, Cacchione J., citing both Thomson and Tanas, held that:

The authorities agree that residency is a question of fact, and to establish residence a person must be physically present in a place for a period of time with an intention to remain. In order for a person to be residing somewhere there must be a notion of permanence or an intention to stay for an indefinite period of time. [emphasis added]

In interpreting the term "resident" on the basis of the established case law, I find that Ms. Cruz has not met her onus of establishing that she was a resident of Ontario at any material time. Ontario was not Ms. Cruz' "settled or usual abode," to use the words of Kerwin J. She did not have a history of habitually returning to the province, as in Mann or Parkes. There was certainly no intent to make a permanent home in Ontario (as stated in Olson), nor do I find that there was an intention, as required in MacPherson, to make a home in Ontario for an indefinite period.

Ms. Cruz' own evidence, at its realistic best, places her in Ontario for a maximum fixed period of some 12 to18 months, not for an indefinite length of time. The arrangements, however, which she had in place at the time of the accident regarding her schooling, airline transportation, homestay and passport requirements, make it more likely that her stay in Ontario would have ended in December 1999. The limited possessions Ms. Cruz brought with her and the type of accommodation which she had in Toronto were more consistent with a sojourn than with establishing residency. Her settled intention was to rejoin her family, her friends and her fiancé in Mexico, where she would resume her employment in the new position to which she had been promoted. What was indeterminate was only whether Ms. Cruz would indeed ever return to Toronto. Mexico was where she had left most of her possessions. Mexico was where she continued to receive her mail. Mexico was presumably where she paid her taxes and had any bank accounts.

While Thomson and succeeding cases allow that one may have more than one residence, I cannot find that Ontario was a location where Ms. Cruz "regularly, normally or customarily" lived. Succinctly put, I am not persuaded that on the facts of this case, that the element (to use the words of Estey J., and adopted in later insurance cases) of the permanent, the indefinite or the long-term outweighs the element of the temporary regarding Ms. Cruz'stay in Ontario. The Applicant, however, submits that the section 2 residency requirement must be read in conjunction with section 57 of the Bill 59 Schedule. Section 57 is contained within Part XIII, which deals with the interaction of the Bill 59 Schedule with other systems. Section 57 specifically pertains to accidents outside of Ontario and allows a person insured in a jurisdiction elsewhere in Canada or in the United States (not an "insured person" as defined in section 2 of the Schedule) to elect between being paid benefits under the Bill 59 Schedule, or receiving those benefits that would be available as if the person was a resident of the jurisdiction in which the accident occurred and was entitled to payments under the law of that jurisdiction. The provision concludes that:

(4) For the purpose of this Part, a person is insured in the jurisdiction in which the accident occurred if the person, at the time of the accident,

(a) was authorized by law to be or to remain in Canada and was living and ordinarily present in Ontario;

(b) met the criteria prescribed for recovery under the law of the jurisdiction in which the accident occurred;

(c) was not the owner or driver of, or an occupant of an automobile registered in the jurisdiction in which the accident occurred; and

(d) was,

(i) an occupant of the insured automobile,

The Applicant submits that when one looks at the entire legislative framework, one must conclude that one is a resident of Ontario if one is authorized by law to be or to remain in Canada and is living and ordinarily present in Ontario. I am, however, not persuaded that the "threshold" definition of "resident" is to be interpreted in light of this "election" provision. Moreover, I am not persuaded that the words "living and ordinarily present" in this context are as liberal in their scope as the Applicant submits.

Under the Bill 68 Schedule,² the equivalent "election" provision was mirrored by the "threshold" provision in the definition section. The latter read:

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

(b) in respect of accidents outside Ontario, a person living and ordinarily present in Ontario who is an occupant of the insured automobile;

The "election" section in the Bill 68 Schedule, however, specifically pertained only to accidents in Quebec. There was no election provision pertaining to accidents elsewhere outside of Ontario.

Under the successor Bill 164 Schedule,³ the "threshold provision" was amended to read as follows:

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

(c) in respect of accidents outside Ontario, a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at some point during the sixty days before the accident;

The "election" section again, however, specifically pertained only to accidents in Quebec. There was no equivalent provision pertaining to accidents elsewhere outside of Ontario

In interpreting legislation, related legislation, including the statutes of other jurisdictions, can be an assistive tool. Hence, Driedger states that:

Where two statutes dealing with the same subject or enacted to achieve the samepurpose use similar or identical words, the courts may readily conclude that the words have the same meaning and effect.⁴

I find the Quebec Automobile Insurance Act, R.S.Q.. chapter A-25 [updated to January 16, 2001], to be of assistance. This statute provides that:

s.7 Every victim resident in Québec and his dependants are entitled to compensation under this title, whether the accident occurs in Québec or outside Québec. Subject to paragraph 1 of section 195 [Regulations to specify or restrict the meaning of "person resident in Quebec"], a person resident in Québec is a person who lives in Québec and is ordinarily in Québec, and has the status of Canadian citizen, permanent resident or person having lawful permission to come into Québec as a visitor.

[emphasis added]

s.9 Where the victim of an accident that occurs in Québec is not resident in Québec, he is entitled to compensation under this title but only to the extent that he is not responsible for the accident, unless otherwise agreed between the Societé and the competent authorities of the place of residence of the victim . . .

Pursuant to section 195 of the Quebec Automobile Insurance Act, Regulation c. A-25, r. 3.1 was promulgated to define certain words and expressions for the purposes of the Automobile Insurance Act. Referring to section 7 noted above, it provides that:

"person who lives in Québec and is ordinarily in Québec" means a person who lives in Québec permanently and carries out the normal activities of his daily life in Québec;

Furthermore, Regulation c. A-25, r. 3, also promulgated under section 195 of the Quebec Automobile Insurance Act, specifically provides in respect of "Title II" of that legislation (which includes section 7 set out above) that a student from a country other than Canada (which was Ms. Cruz' factual situation) is not considered to be a resident.

These regulations were in effect when the Bill 68 Schedule was enacted. The Bill 68 Schedule "election" provision uses the words "living and ordinarily present in Ontario," as do its successors. The Quebec Automobile Insurance Act uses the words, "person who lives in Québec and is ordinarily in Québec." The two statutes deal with the same subject matter, namely first-party "no-fault" automobile insurance. The election provisions of the Bill 68 Schedule (as well as the Bill 164 Schedule) were restricted to accidents which took place in Quebec. It can be presumed that the Ontario drafters were aware of the Quebec legislation, when they used almost identical wording. It can also be presumed that the Ontario drafters were aware of the definition regulations set out above.

Hence, one can "readily conclude" that the words "living and ordinarily present in Ontario" in section 57, the "election" of the Bill 59 Schedule, have "the same meaning and effect" as in the Quebec legislation.

Accordingly, I am not persuaded that section 57 of the Bill 59 Schedule broadens the meaning of "resident" in section 2 so as to encompass this particular Applicant.

Nor do I find helpful, in the facts of this case, the comments of Dubin J.A. in MacPherson that it is "proper to reject the interpretation . . . which would create inconvenience and unfairness." I was given no evidence or submission as to what specific inconvenience or unfairness would befall Ms. Cruz if she were found not to be resident in Ontario, there being no assertion of her ineligibility for Quebec benefits.

The Insurer argued that for Ms. Cruz to be entitled to benefits from Royal as an "insured person," she must also establish that she was "authorized by law to be or to remain in Canada" and "was living and ordinarily present in Ontario," as set out in paragraph 57(4)(a) of the Bill 59 Schedule.

I do not agree that section 57 sets out requirements regarding the definition of "insured persons" additional to those stated in section 2. Rather, section 57 appears to have two functions. The first is to allow persons insured in the non-Ontario jurisdiction where the accident occurred to elect between those benefits available under the Bill 59 Schedule and those benefits available under the laws of the other jurisdiction. This provision does not even mention "insured persons." Rather, the section concerns itself with a very different class of individuals, namely, persons "insured in the jurisdiction in which the accident occurred." Ms. Cruz does not seek to elect Quebec benefits under this provision. To the contrary, this whole dispute is about Ms. Cruz not wanting Quebec benefits.

Secondly, section 57 appears to present a "back door" to entitlement to benefits from an insurer under the Bill 59 Schedule as a result of non-Ontario accidents (as defined), to persons who meet all the mandated criteria of being "insured in the jurisdiction in which the accident occurred," even though they are not "insured persons" under section 2. This, however, was not an issue before me nor did I receive any submissions in this regard, and hence I make no finding as to whether Ms. Cruz was a person "insured in the jurisdiction in which the accident occurred."

EXPENSES:

I may now be spoken to, if required, as to the question of the arbitration expenses of this preliminary issue hearing.

I wish to thank counsel for their most efficient use of the two hearing days, allowing us to hear from seven witnesses (three requiring the use of an interpreter), one of whom participated by telephone conference from Mexico City, as well as finish final arguments.

June 13, 2001

Lawrence Blackman Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 88

FSCO A00-001179

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARIA DEL ROCIO CRUZ

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, I determine that:

1. Ms. Cruz is not an insured person as defined in section 2 of the Bill 59 Schedule.

June 13, 2001

Lawrence Blackman Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulation 462/96, 505/96, 551/96 and 303/98.
2. 2The Bill 68 Schedule is the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 1990, Reg.672, as amended ("the Bill 68 Schedule).
3. 3The Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996, O.Reg 776/93, as amended ("the Bill 164 Schedule").
4. 4Driedger on the Construction of Statutes, 3rd ed., by Ruth Sullivan (Toronto: Butterworths, 1994), at p. 287.