Neutral Citation: 2002 ONFSCDRS 16

FSCO A01-000545

BETWEEN:

SHANNON AND WALTER WHALE

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION ON A PRELIMINARY ISSUE*

*Minor error corrected on February 12, 2002 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before:

Joyce Miller

Heard:

December 13, 2001, in London, Ontario.

Appearances:

Catherine Bruni for Mr. and Mrs. Whale

Terrence R. Shillington for Guarantee Company of North America

The Applicants, Shannon and Walter Whale, were injured in a motor vehicle accident on January 31, 2000. They applied for and received certain statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee, however, denied their claim for death benefits arising from the death of their unborn child as a result of the accident. The parties were unable to resolve their disputes through mediation, and Mr. and Mrs. Whale applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Are Mr. and Mrs. Whale entitled to death benefits arising from the death of their unborn child at the time of the accident pursuant to subparagraph 25(2)(5)(i) of the Schedule?

Mr. and Mrs. Whale are not entitled to death benefits pursuant to subparagraph 25(2)(5)(i) of the Schedule.
If needed, the parties may now speak to me on the issue of expenses.

Evidence

On January 31, 2000 at approximately 4:00 p.m., Mr. and Mrs. Whale were travelling north on Highway 40 in the municipality of Chatham-Kent. A vehicle travelling south crossed the centre line of the road and struck their car head on. Both Mr. and Mrs. Whale suffered soft tissue as well as bone fracture injuries as a result of this accident.

At the time of the accident, Mrs. Whale was 26 weeks pregnant. Earlier that day, at around noon time, Mrs. Whale had attended for an obstetrical ultrasound where fetal cardiac activity and fetal movements were observed. Mrs. Whale learned that her pregnancy was normal and that she was carrying a girl.

After the accident, at approximately 6:05 p.m., Mrs. Whale underwent a second ultrasound. This time, no fetal cardiac activity or movement was observed. It was concluded that there had been a fetal demise.

Mrs. Whale then underwent a C.T. scan of the pelvis. A uterine pregnancy was seen with a well formed fetus. There was some overlapping of the fetal skull bones. A haematoma was noted in the right abdominal wall. As a result of these findings, Mrs. Whale underwent a caesarean section on February 1, 2000 and a stillborn infant female was delivered.

Mr. Whale testified that after the caesarean he was asked if he wanted to hold his baby daughter, and he did hold her.

Due to the age of the unborn child, Mr. and Mrs. Whale were required by law to arrange a funeral and burial.

On March 3, 2000, Mr. and Mrs. Whale submitted an application to Guarantee for accident benefits. As part of their application they applied for death benefits as well as funeral and headstone expenses, the latter totalling $5,920.02.

On March 24, 2000 in response to their application, Mrs. Whale, who was the "named insured" of the vehicle insured by Guarantee, received an Explanation of Benefits Payable form from Guarantee. Guarantee also enclosed, among other things, the payment of the sum of $5,920.02 for funeral and headstone expenses with this form. However, Guarantee did not complete the death benefits section of the form.

Ms. Pat Griffin, a claims manager with Guarantee, testified that funeral and burial expenses were paid on compassionate grounds and not because of any legal obligation. Ms. Griffin testified that after the accident she spoke to Mrs. Whale who expressed concern about being unable to afford to pay the funeral and burial expenses for her daughter. Ms. Griffin stated she spoke to her supervisor, Mr. Don Wright, about this matter and they decided that for compassionate reasons Guarantee would pay for this expense.

Ms. Griffin testified that she did not recall whether she advised Mrs. Whale that the funeral and burial expenses were being paid for on compassionate grounds.

At the time that Mr. and Mrs. Whale applied for and were paid the funeral expenses they did not have a lawyer. Subsequently, they hired a lawyer.

On July 19, 2000, Guarantee wrote to Mr. and Mrs. Whale's lawyer, stating:

Please be advised that Funeral benefits were paid for compassionate reasons and not as a legal obligation on the part of Guarantee Company. The unborn child would not qualify as a dependent and therefore there is no eligibility pursuant to Section 25 of the Statutory Accident Benefits Schedule.

The issue I have to decide is whether Mr. and Mrs. Whale are entitled to death benefits arising from the death of their unborn child at the time of the accident.

The Law

Pursuant to section 25 of the Schedule, an insurer shall pay a death benefit in respect of an insured person if he or she dies as a result of an accident within 180 days after the accident.² The death benefit shall provide for payment of $10,000 to a person in respect of whom the insured person was a dependant at the time of the accident.³

Section 26 of the Schedule provides that the insurer shall pay a funeral benefit in respect of an insured person who dies as a result of an accident.

"Insured person" is defined in the Schedule, in part, as any dependant of the named insured or spouse, if the named insured, specified driver, spouse or dependant, is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile.⁴

Subsection 2(6) of the Schedule provides that:

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.

Submissions

Mr. and Mrs. Whale's Submissions

Mr. and Mrs. Whale submit that Mrs. Whale was a named insured and as a result their deceased child qualifies as an insured person as she was dependent on Mr. and Mrs. Whale by virtue of the fact that she was principally dependent for care on Mrs. Whale.

Mr. and Mrs. Whale submit that the criteria for payment of death benefits and funeral expenses as set out in the Schedule are identical and therefore should be payable on the same basis. Mr. and Mrs. Whale submit that principles conferring property rights upon an unborn should be distinguished from arguments involving pro-life or pro-abortion issues.

Mr. and Mrs. Whale submit that the legal fiction which has developed and existed for over a century with respect to the property rights of an unborn child is applicable in this case. This legal fiction states that the property rights of an unborn child who is subsequently born alive is in the same position as a child living at the time of the death of the benefactor.⁵

Mr. and Mrs. Whale submit that it would be unfair to suggest that the legal fiction does not apply with respect to their application for death benefits merely because their child was never born alive or viable when the cause of that child's death was the motor vehicle accident itself. Furthermore, they submit, to suggest that the loss suffered by them is lessened merely because their child had not been born alive and died shortly thereafter lacks common sense and runs contrary to the intention of the Schedule.

Mr. and Mrs. Whale submit that specific words of exclusion would be required in the Insurance Act and the Schedule to now exclude such rights for a child en ventre sa mere. They submit that neither of these pieces of legislation, as they apply to the accident in question, contain specific words which suggest that an unborn child should be excluded and, as such, it would run contrary to common sense to exclude same.⁶

Guarantee's Submissions

Guarantee submits that the law of Canada does not recognize the unborn child as a legal person possessing rights. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. The only right recognized is that of the born person. Any right or interest the fetus may have remains inchoate and incomplete until the child's birth.

Guarantee submits that it follows that under the law, the fetus on whose behalf Mr. and Mrs. Whale purport to act is not a legal person and possesses no legal rights. There is no legal person in whose interests Mr. and Mrs. Whale could act or in whose interests an order could be made.

Guarantee submits that to extend the meaning of "dependent" to the unborn would be the equivalent of amending the Schedule to provide for a benefit in respect of an additional class or group, namely unborn children, when such a result is not, on the basis of the words used by the Legislature, within the contemplation of that body.

Accordingly, Guarantee submits that Mr. and Mrs. Whale are not entitled to death benefits in respect of their unborn fetus.

Analysis and Findings:

This is a tragic case. One cannot help but feel sympathetic to the deep painful loss that Mr. and Mrs. Whale have experienced because of the death of their unborn child. I accept their submission that the loss of their unborn daughter is no less a loss to them, than if their child was born alive and died immediately.

Mr. and Mrs. Whale make an appealing argument that, given the remedial nature of the statutory no-fault benefits scheme, a liberal interpretation should be given to the term "insured person" to include an unborn child for the purpose of entitlement to death benefits. From a common sense perspective for Mr. and Mrs. Whale, this is the fair and just thing to do in this case. From a legal perspective, however, I find that the law does not allow for this exception. The current law is that an unborn fetus is not a "person."

In the case of Tremblay v. Daigle⁷ the Supreme Court of Canada in dealing with the issue of the legal status of an unborn child made the following statement:

The Court is not required to enter the philosophical and theological debates about whether or not a foetus is a person, but, rather, to answer the legal question of whether the Quebec legislature has accorded the foetus personhood. Metaphysical arguments may be relevant but they are not the primary focus of inquiry. Nor are scientific arguments about the biological status of a foetus determinative in our inquiry. The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties - a matter which falls outside the concerns of scientific classification. In short, this Court's task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature. [emphasis added]

In the Tremblay case the Court affirmed the civil and common law that it is at the point of birth that at which the fetus becomes a person with full and independent rights. This finding followed and affirmed the law of Ontario as enunciated in the cases of Dehler v. Ottawa Civic Hospital et al.⁸ and Medhurst v Medhurst⁹ which have held that an unborn child is not a person.

In the Dehler case the Court held that:

While there can be no doubt that the law has long recognized foetal life and has accorded the foetus various rights, those rights have been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive and, until then, a foetus is not recognized as included within the legal concept of "persons".

The Medhurst case followed Dehler and specifically stated that the law did not consider a fetus a person.

In the present case I am being asked to distinguish the Tremblay, Medhurst, Dehler line of cases which focussed on asserting the rights of a fetus with the right of Mr. and Mrs. Whale to make a claim for death benefits for the loss to them of their unborn child killed in the car accident. Succinctly, I am being asked to decide that an unborn child who is not born alive is a "person" for the purposes of entitlement to death benefits. More specifically, I am being asked to decide that Mr. and Mrs. Whale's unborn child was an "insured person" under the Schedule.

I do not believe that I have the authority to read such an exception from the current state of the law into the legislation. The present law states that a fetus is not a person. The only exception is the legal fiction which vests certain property rights to a fetus if it is born alive. There is nothing in the present legislation that would allow me to find that an "unborn child" who has never been born alive because of a car accident can be considered to be a "person" and the subject of a benefit under the Schedule. For such a significant departure from the present law, I find that the Legislature would have to clearly articulate this expansion of the meaning of "insured person."

Accordingly, for these reasons, I find that Mr. and Mrs. Whale are not entitled to death benefits for the loss of their unborn child as a result of the car accident on January 31, 2000.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses.

January 18, 2002

Joyce Miller Arbitrator

Date