Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 119

FSCO A04-000559

BETWEEN:

DUNG CHAU

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: January 18, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

George Malakassiotis for Mrs. Chau

Mark K. Donaldson for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant's daughter, Ms. Ngoc Truong, was fatally injured as a result of a motor vehicle accident on March 15, 2003. The Applicant, Mrs. Dung Chau, applied for funeral and death benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm paid Mrs. Chau's claim for funeral benefits, but denied her claim for death benefits on the basis that she was not principally dependent for financial support on her daughter, Ms. Truong. The parties were unable to resolve their disputes through mediation, and Mrs. Chau applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The hearing proceeded on the basis of documentary evidence and oral submissions. Mrs. Chau resides in Vietnam and did not attend the hearing.

The issues in this hearing are:

1. Is Mrs. Chau entitled to death benefits pursuant to section 25 of the Schedule?

2. Is Mrs. Chau entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?

3. Is either party entitled to its expenses of the arbitration proceeding, pursuant to section 282(11) of the Insurance Act?

Result:

1. Mrs. Chau is not entitled to death benefits.

2. Mrs. Chau is not entitled to interest on overdue benefits.

3. If required, the parties may now make submissions on the issue of expenses.

EVIDENCE AND ANALYSIS:

Mrs. Chau's daughter, Ms. Ngoc Truong, was forty-five years old at the time of the accident. She was a pedestrian and was struck and killed by a car insured by State Farm. Ms. Truong had emigrated from Vietnam to Canada in 1988. At all material times, Mrs. Chau resided in Vietnam. Mrs. Chau was seventy years old at the time of the accident. Mrs. Chau maintains that she is entitled to benefits in respect of her daughter's death, pursuant to section 25 of the Schedule.

Applicable Statutory Provisions

Section 25(1) of the Schedule states, in part, that an insurer is required to pay a death benefit in respect of an insured person if he or she dies as a result of an accident. Section 25(2) states, in part, that the death benefit shall provide for a payment to each of the insured's dependants of $10,000, and an additional payment of $25,000 to the insured's dependants to be divided equally among the persons entitled. Section 2(6) states, in part, that for the purpose of the Schedule, a person is a dependant of another person if the person is principally dependent for financial support on the other person. The sole issue in this case is whether Mrs. Chau was principally dependent for financial support on her daughter, Ms. Truong.

Interpretations of the phrase "principally dependent for financial support"

A number of decisions have addressed the meaning of the phrase "principally dependent for financial support." For example, in Miller v. Safeco Insurance Company of America, (1986) 1985 CanLII 2022 (ON CA), 13 C.C.L.I. 31, the Ontario Court of Appeal established the following criteria as relevant to the determination of the issue of dependence: the amount and duration of the dependency, the financial or other needs of the claimant and the ability of the claimant to be self-supporting. Despite the change in statutory language since that decision, the Court of Appeal has more recently affirmed the approach in Miller in the case of Liberty Mutual Insurance Company and Federation Insurance Company of Canada (April 10, 2000, unreported).

In the arbitration decision of Mark and Dominion of Canada General Insurance Company (FSCO A96-000341, January 27, 1999), the Arbitrator summarized the following criteria on the issue of principal financial dependence:

• the phrase "principally dependent for financial support" requires more than some financial dependence. It requires principal dependence. The applicant must "chiefly" or "primarily" or "for the most part" derive his or her financial support from that person as opposed to other sources;

• the dependence must be financial; the phrase does not refer to other forms of dependence such as social dependence except to the extent that social factors pertain to financial dependence;

• the term "financial support" is broad enough to extend beyond money to include the concept of "money's worth" or the reasonable value of goods and services provided and exchanged;

• the determination of the nature and degree of dependency is essentially one of fact and requires an assessment of all of an applicant's particular circumstances at the time of the accident to determine whether the applicant was in fact chiefly deriving his or her support from the other person. The actual circumstances must be looked at, not an imputed earning capacity;

• the question of dependency requires an assessment of the applicant's particular circumstances in their entirety at the time of the accident; however, the applicant's position cannot be determined solely by a single snapshot of his or her circumstances at that date;

• matters such as the amount and duration of the financial dependency, the financial or other means of the applicant, the ability of the applicant to be self-supporting (at the time of the accident) are appropriate considerations for determining the question of financial dependency;

• while the ability to be self supporting is a relevant criterion of dependency, nothing in the Schedule suggests that this must be measured with reference to a subsistence-level standard of living; and

• the overriding principle governing interpretation of the dependency provisions is that the benefits legislation is remedial and as such should be accorded a broad and liberal interpretation that best meets its objectives.

(emphasis in original)

In Co-Operators General Insurance Company v. Halifax Insurance Company, 2002 CanLII 79675 (ON SC), [2002] O.J. No. 2459 (S.C.J.), June 21, 2002, the Court held that "each case of dependency must be decided on its own facts, 'based on a realistic assessment of the parties' actual financial circumstances at the time of the accident" and that "to be principally dependent for financial support on another person the individual claimant must be 'chiefly or for the most part derive his or her financial support' from that other person."

The arbitration appeal decision in Berhe and State Farm Mutual Automobile Insurance Company (FSCO P02-00027, July 24, 2003) adopted the principles summarized in Mark and establishes that the Applicant "bears the onus of proving entitlement."

The evidence of principal financial dependence

By letter dated July 25, 2003, State Farm's Claims Representative, Ms. Tara Davidson, set out the reasons for the denial of Mrs. Chau's claim for death benefits and posed a number of questions for Mrs. Chau, should she wish to further pursue her claim. By letter dated August 13, 2003, Mrs. Chau's representative, Mr. Malakassiotis, responded to these questions on the basis of a telephone conversation which he had apparently had with Mrs. Chau, along with Mr. Sam Du, an agent in Mr. Malakassiotis's office who assisted with translation. At the hearing, Mr. Malakassiotis stated that he did not record the specific date of the telephone call, but that it must have taken place between July 25 (the date of Ms. Davidson's questions) and August 13, 2003 (the date of his response). Counsel for State Farm, Mr. Donaldson, did not object to the introduction of Mr. Malakassiotis's August 13, 2003 letter, but pointed out a number of deficiencies and submitted that these ought to be considered in determining the weight to be attributed to this evidence. I admitted the letter and will address some of the problems with this piece of evidence later in this decision. State Farm's questions and Mr. Malakassiotis's responses are as follows:

1. With whom does Ms. Chau reside? According to the money transfer receipts, and the documents submitted in support of Kim Hang Truong's adopted status, Ms. Chau resides at the same address as at least one daughter, one son and two granddaughters.

Ms. Chau claims that three sons and three daughters reside with her.

2. Does Ms. Chau own, or rent her permanent residence?

Ms. Chau owns the house in which she resides.

3. How many children does Ms. Chau have?

Ms. Chau had ten children altogether and now as the result of this unfortunate and tragic accident she has nine.

4. Do any of these other children aid Ms. Chau during her constant financial hardship?

Ms. Chau claims that the six of her children living with her are all dependant [sic] on her for food and shelter. The other three children reside in other countries. One resides in Taiwan and the other two in Sweden.

5. Is Ms. Chau now, or has she ever been employed? If so, where and for how many years?

Ms. Chau claims that she has never been employed or held a job and solely relied on her late husband for his income as he was the one working before he passed away. Since her husband passed away in 1993 she has relied on the financial support from her daughter, Ngoc Truong.

6. Does Ms. Chau have any other sources of income in the form of employment, government assistance, old age pension etc.? Please provide documentation to support the answers to these questions, i.e. bank accounts and statements, income tax returns (or the equivalent) etc.

Ms. Chau has never received and is not receiving any other or additional form of income other than the financial support she would receive from her daughter, Ngoc Truong, before she passed away.

7. What are Ms. Chau's monthly expenses?

Ms. Chau's monthly expenses consist of food, hydro, water and clothes on occasion. These expenses amount to approximately $200.00 US on a monthly basis.

8. Since the death of Ms. Chau's daughter, by what means has Ms. Chau supported herself?

Since the death of her daughter Ms. Chau indicates that she has had to borrow money from friends. She has also indicated that she can provide receipts to justify this upon request.

9. How have the needs of Ms. Chau changed since the death of her daughter?

Ms. Chau indicated that her needs (financial) remain the same since the death of her daughter and nothing has changed in that regard. However at this time she is experiencing great financial hardship as she realizes that she cannot continue to borrow money from her friends for much longer than she already has to date and since the death of her daughter. Ms. Chau claims that she has been loaned money from friends in order to survive this difficult time. She also received money from friends in order to pay for her flight in order to come to Toronto to attend the funeral of her daughter. She has indicated that she will need to reimburse them in the event that [she] receives any type of remuneration from State Farm Insurance or otherwise in that regard.

10. How long had Ms. Chau been receiving financial assistance from her daughter?

Ms. Chau has been receiving financial support from her daughter, Ngoc Truong, since her husband passed away in 1993.

Mr. Malakassiotis submitted a statement made by Mrs. Chau before the local Vietnamese police authority on October 13, 2004, "certified" by Lt. Col. Tran Van Hong, the Police Chief of Ward 11, District 8, Ho Chi Minh City, and translated by Nguyen Thi Van An, a "collaborator" with Ho Chi Minh City Notary Public Bureau No. 5. Mrs. Chau's statement is as follows:

From the past to that date [March 15, 2003, the date of the accident and Ms. Truong's death], I lived on monthly remittances from my daughter, TRUONG NGOC, who sent a remittance of 500 (five hundred) Canadian dollars to support me for every three months. From the date of my daughter's death to date, I have been facing much financial difficulty because I am old and weak and I am unable to do anything.

I hereby request the local authorities to certify my above statement is true.

I shall assume full responsibility for anything fraudulent. Your kind certification will be used to support the documentation in Canada for the court hearing on my daughter's car accident.

[signed by Mrs. Chau]

Certification: The above declaration about the family facing much financial difficulty made by Chau Dung, born in 1933, permanently residing at 137/2A Phong Phu St., Ward 11, District 8, is true.

[signed by Lt. Col. Tran Van Hong]

Mr. Malakassiotis submitted various money transfer receipts dated from June 1996 to January 2003 and showing the transfer of funds at various times, to various recipients and in varying amounts. There are twenty-five receipts showing the transfer of a total of $5845 US funds and $8366 CDN funds. The receipts from June 1996 to January 2002 all have the same recipient's address. Three of the last four receipts from March 2002 to January 2003 show a different recipient's address. The last receipt has no recipient's address. Only five of the twenty-five receipts show Mrs. Chau as the recipient. Of these, two receipts show a Truong My Hanh (one of Mrs. Chau's daughters) as an alternate or co-recipient, and three receipts show a Truong Nu as an alternate or co-recipient. Of the twenty other receipts, eight other individuals (including Truong My Hanh and Truong Nu) are shown as recipients. Mr. Malakassiotis attempted to explain that due to Mrs. Chau's age and long line-ups, Ms. Truong would occasionally forward the funds to other family members or friends and that these individuals would then give the money to Mrs. Chau.

Mr. Malakassiotis submitted fourteen letters from Ms. Truong to her mother and siblings in Vietnam, dated from November 1995 to January 2003. The letters had been translated from Vietnamese in November 2004 by Mr. Chau Tran, a translator with All Languages Ltd. The letters indicate that Ms. Truong is sending money back to her mother and siblings. There is no particular pattern as to the amounts or times at which Ms. Truong sends money. Further, other than two brief periods in mid-1997 and mid-2000, the amounts Ms. Truong states in the letters that she is sending do not coincide with the dates or amounts shown in the various money transfer receipts.

There are three letters in the three years preceding the accident. In the first (dated July 1, 2000), Ms. Truong states that she has sent $800 CDN, of which $500 is for her mother and $300 is for her younger brother's wedding. In the second letter (dated January 28, 2002), Ms. Truong states that she is sending $360 CDN to her mother to "spend on groceries" and to "spend frugally." Ms. Truong also indicates that her younger brother Hai is sending Mrs. Chau $320 CDN and $80 CDN for each of four of their younger siblings. Ms. Truong tells her mother that she should plan for the $680 to "last 4 months." The last letter (dated January 10, 2003) indicates that Ms. Truong is sending $200 US to her mother and a further $600 CDN, $150 for Mrs. Chau and the rest in varying amounts for her younger siblings. Ms. Truong asks her mother to "spend [the money] frugally" as she will only be able to "send some more in 3 months."

Mr. Malakassiotis submitted some of Mrs. Chau's daughter's tax information for the years 1994-2002 to establish that Ms. Truong had enough income to make the payments shown in the money transfer receipts. The tax documents show that Ms. Truong had a net annual income of between $17,200 and $24,101.40.

Mr. Malakassiotis submitted bank statements for Ms. Truong's account at Scotiabank from December 1998 to March 2003, and for her account at Canada Trust from April 2002 to February 2003. The bank statements show various account activities, including withdrawals in varying amounts and at varying times in the months and years preceding the accident. The withdrawals shown do not coincide with the information contained in either Ms. Truong's letters or the money transfer receipts.

Mr. Malakassiotis provided two further documents, the first being a schedule of the "Quantum of Dung Chau's Household Expenses" which noted utilities (electricity and water) of $70-80 per month and food of approximately $90 per month, for a total of approximately $170 per month. The second document contained a list of the "names, ages and employment information [of] the other individuals living with Dung Chau in her household." The list names five individuals, all unemployed, and ranging in age (at the time of the accident) from thirty-seven to forty-five years old. The information in these documents was apparently based on Mr. Malakassiotis's 2003 telephone conversation with Mrs. Chau.

Findings regarding Mrs. Chau's financial dependence on her daughter

I find that Mrs. Chau has not discharged the onus on her of establishing that she was principally dependent for financial support on her daughter, Ms. Truong, within the meaning of sections 25(2) and 2(6) of the Schedule.

I accept the principle set out in Mark and Dominion of Canada and applied in decisions such as Berhe and State Farm concerning the importance of the remedial nature of the Schedule and the flexibility with which it should be interpreted. I am also cognizant of the concern raised in the private arbitration decision of Co-Operators General Insurance Company and Her Majesty the Queen in [the] Right of the Province of Ontario (the Motor Vehicle Accident Claims Fund) and reiterated in the arbitration decision of Chou and ING-Halifax Insurance Company (FSCO A02-001343, May 8, 2003) concerning the reality that few people keep records that are sufficiently detailed for a hearing on the issue of financial dependency. However, as noted in both Mark, supra, and Co-Operators General Insurance Company v. Halifax Insurance Company, supra, I must nevertheless conduct a realistic assessment of Mrs. Chau's circumstances in their entirety at the time of the accident in order to determine her financial dependence on her daughter. On the evidence before me, and in all of the circumstances, I find that Mrs. Chau has not established the requisite degree of dependence.

Mrs. Chau maintained that she depended more on Ms. Truong than any other source in order to cover her monthly expenses. Mrs. Chau's position raises four issues. The first is what or who were the sources of Mrs. Chau's income? Secondly, how much was Mrs. Chau's income? Thirdly, what were Mrs. Chau's monthly expenses? Finally, was Mrs. Chau chiefly, primarily or for the most part dependent on Ms. Truong's assistance to cover her monthly expenses?

(i) The sources of Mrs. Chau's income

In my view, in order for Mrs. Chau to maintain that one of her children was her principal source of income, she must, at the very least, establish how many children she had.

Mr. Malakassiotis's August 2003 letter to State Farm states that Mrs. Chau lives with six of her children (three sons and three daughters). However, Mr. Malakassiotis's list of the "names, ages and employment information with respect to the other individuals living with Dung Chau in her household" lists five people. Mr. Malakassiotis's letter states that, prior to the motor vehicle accident, Mrs. Chau had ten children. However, the evidence suggests that Mrs. Chau had as many as fourteen children. Six of the children are Ms. Truong and the five people listed in Mr. Malakassiotis's letter. The five people listed by Mr. Malakassiotis are also identified as Mrs. Chau's children and/or Ms. Truong's siblings in Ms. Truong's letters to her mother. Ms. Truong also refers to the following as members of her family: "older sister Hai in Australia" (February 17, 1996 letter), "Xay Lu" (April 6, 1998), "older brother Nam" (May 28, 1998), "older sister Tuyet" (May 29, 1998), "younger brother Hai" (January 28, 2002), "younger sibling Phat" (January 28, 2002), "Kim Chi" (April 26, 1999), "younger sibling Xay Muoi" (January 10, 2003). The letters do not clarify who is living with Mrs. Chau. Nam, Tuyet, Kim Chi, sister Hai and brother Hai appear not to live in Vietnam.

I find that Mrs. Chau has not established how many children she had at the time of the motor vehicle accident. Other important information would be the ages, addresses and occupations of her various children. Mrs. Chau has not provided any direct and/or reliable evidence on these points.

In response to State Farm's question as to whether any of Mrs. Chau's other children aided her "during her constant financial hardship," Mr. Malakassiotis relays the information that all six of the children living with Mrs. Chau were dependent on her for food and shelter, and that the other three children resided in other countries (one in Taiwan and the other two in Sweden). Mr. Malakassiotis provided no information as to whether any of the children, particularly those who did not live with Mrs. Chau (either in her house or in Vietnam), provided financial or other assistance to Mrs. Chau. This is particularly significant in light of the fact that Mrs. Chau likely had more than ten children at the time of the accident. It is also significant given that financial support and dependence, as discussed in the arbitration decision of Mark, is "broad enough to extend beyond money to include the concept of 'money's worth' or the reasonable value of goods and services provided and exchanged."

Further, Ms. Truong's letters suggest that at least some of her siblings provided financial assistance to Mrs. Chau. For example, in February 1996, Ms. Truong inquires as to whether her older sister Hai in Australia gave her mother $100 or $500. In April 1999, Ms. Truong suggests that her siblings Hai and Kim Chi will assist with Mrs. Chau's expenses while travelling to Sweden. In November 1999, Ms. Truong states that her younger brother Hai will be sending Mrs. Chau $200 US (which Ms. Truong tells her mother to "bring with [her] to spend in Taiwan"). In January 2002, Ms. Truong states that her younger brother Hai is sending Mrs. Chau $320 CDN. In an undated letter, Ms. Truong states that "in April, older sister will send you some more money." Given this evidence, I find that Mrs. Chau has not adequately responded to State Farm's inquiry concerning whether and to what extent her other children provided her with financial assistance. I find that Mrs. Chau has not established that she received a greater amount of financial assistance from Ms. Truong than from her other children.

State Farm asked whether Mrs. Chau had any other sources of income, and asked to be provided with supporting documentation. Mr. Malakassiotis responded that Mrs. Chau had "never received or is not receiving any other or additional form of income other than the financial support she would receive from her daughter, Ngoc Truong, before she passed away." However, as noted above, Ms. Truong's letters suggest that some of the other children provided Mrs. Chau with financial assistance. One letter from Ms. Truong (dated November 26, 1999) suggests that Mrs. Chau had been borrowing money. Ms. Truong tells her mother: "DON'T borrow first and repay later as the interest keeps growing and growing and I have no way of taking care of it" (emphasis in original). Mr. Malakassiotis's letter states that, after the accident, Mrs. Chau had to borrow money from friends in order to travel to Toronto for her daughter's funeral. However, at the hearing, Mr. Malakassiotis indicated that he believed that Mrs. Chau's daughter in Taiwan financed her trip to Toronto for the funeral. Mrs. Chau did not provide any documentation supporting her claim that Ms. Truong was her only source of income. Nor did she provide any evidence of her inability to obtain this information. I do not accept Mrs. Chau's claim (via Mr. Malakassiotis) that she had no other sources of income than her daughter, Ms. Truong.

(ii) The amount of Mrs. Chau's income

The only evidence Mrs. Chau provided of the extent of her income was the October 2004 "certified police statement." Mrs. Chau stated that she received "monthly remittances" from her daughter in the amount of "500...Canadian dollars...for every three months." Mrs. Chau also stated that, since her daughter's death, she has been experiencing financial difficulty. The local Police Chief certified Mrs. Chau's "declaration about the family facing much financial difficulty" as true. While I have no reason to doubt the integrity of the process Mrs. Chau followed in obtaining this statement, for the following reasons I do not accept it as reliable evidence of her financial circumstances.

The statement and certification are themselves confusing. It is not clear whether Mrs. Chau received remittances each month from her daughter ("monthly remittances") or whether she received remittances every three months of 500 Canadian dollars to last for three months. Similarly, it is unclear whether the certification is in respect of Mrs. Chau's statement concerning the amount and intervals of Ms. Truong's remittances, or in respect of Mrs. Chau's statement concerning her financial difficulty, or both. Mrs. Chau also refers to the fact that she, personally, has been experiencing great financial difficulty since her daughter's death, whereas the certification refers to the "family facing much financial difficulty." While not necessarily determinative (particularly in light of the language/translation issues that might be involved), I find that these points tend to weaken this piece of evidence as establishing either the amount or the duration of Ms. Truong's support of her mother.

Mr. Malakassiotis submitted that I should accord respect to Mrs. Chau's police statement in the same manner as did the Arbitrator in Berhe and State Farm Mutual Automobile Insurance Company (FSCO A01-001117, September 9, 2002) regarding a finding by an Ethiopian communal court. However, in Berhe, a judicial tribunal had squarely considered the issue of dependence on the basis of evidence from three independent witnesses. The Arbitrator proceeded to determine the question of principal financial dependence on the basis of the court's ruling, as well as the Applicant's affidavit and supplementary documentation. In the present case, a court did not adjudicate the issue of Mrs. Chau's dependence on her daughter on the basis of independent evidence. While Mrs. Chau's statement was "certified" by an important local official, unlike the court ruling in Berhe, the certification itself is unclear, does not set out the evidence upon which it was made and does not squarely address the issue of financial dependence (particularly in respect of the issue of monthly expenses). I am, therefore, not prepared to accord significant weight to Mrs. Chau's police-certified statement.

The police statement is also significantly at odds with the other evidence presented by Mrs. Chau. Mrs. Chau asserts that she received $500 CDN from her daughter for every three months. However, neither the letters nor the money transfer receipts establish such a pattern. Ms. Truong indicates in her letters that she is sending her mother money for monthly expenses. However, the letters do not establish a particular amount of support or that the money is being sent on a regular basis.

For example, between November 1995 and April 1998, Ms. Truong indicates that she is not able to regularly send her mother money because she is unemployed or because her job has changed in some way. The letters in this period indicate that Ms. Truong only sends $550 CDN and $300 US over two and a half years. Despite Ms. Truong's statement to her mother in February 1996 that she is unemployed and cannot send money regularly, the money transfer receipts submitted by Mr. Malakassiotis for the next fourteen months indicate five separate transfers in amounts ranging from $160 US to $500 US. According to Mr. Malakassiotis's submissions, not all of the people to whom the money was sent were Mrs. Chau's children. No evidence was presented as to who the other individuals were.

Between April 1998 and November 1999, Ms. Truong's letters suggest various things regarding the amount of support she is providing her mother. Her April 1998 letter states that she will be sending her mother money in August (four months later). Her May 1998 letter states that she has already sent $150 CDN to her mother and that she is sending a further $500 CDN for her to use on her monthly expenses. Approximately two weeks later (on June 12, 1998), Ms. Truong states that she is sending her mother $300 CDN for three months. She also indicates that she is sending $700 CDN each to two of her siblings to start a business. The September 1998 money transfer receipt shows Ms. Truong sending $3,000 CDN to another of her siblings.

Between November 1999 and January 2003 (approximately the last three years before the accident), Ms. Truong's letters indicate that she continues to provide financial assistance to her mother, but in varying amounts and under different circumstances. In her November 1999 letter, Ms. Truong states first, that she is sending $300 CDN for her mother to use for three months on food and to take care of Ms. Truong's nephews and nieces, and secondly, that she is sending her mother $150 CDN for each month. The November 1999 letter also indicates that Ms. Truong's younger brother, Hai, will be sending Mrs. Chau $200 US. Ms. Truong tells her mother to "bring [this] with you to spend in Taiwan." The letter also indicates that Ms. Truong is repaying some money her mother borrowed to purchase an airplane ticket for a trip to Sweden (apparently to visit her son Hai). There is no evidence as to how the trip to Taiwan was financed.

In her January 2002 letter, approximately a year before the accident, Ms. Truong states that her "company is very slow" and that she can only give money to her mother and not to her siblings. However, a money transfer receipt earlier that month shows Ms. Truong forwarding $1,225 US to one of her siblings. She also states in her letter that she is sending $360 CDN for her mother and $80 CDN each for four of her other siblings. Further, Ms. Truong indicates that her brother Hai is sending $320 CDN and that her mother should plan so that the money from herself and her brother "will last 4 months."

In the last dated letter (January 2003), Ms. Truong states that she is sending six of her siblings a total of $450 CDN. She also states that she is sending her mother $150 CDN and $200 US, and says to her mother, "spend it frugally, as I can only send some more in 3 months." However, money transfer receipts two weeks later indicate two transfers of $500 CDN each to a person not previously identified as a member of the family. This is also the case for two money transfers of $200 US and $500 CDN respectively in March and August 2002.

Finally, in an undated letter, Ms. Truong tells her mother that she can only provide her with $100 US a month. Ms. Truong also states that "in April, older sister will send you some more money."

Both Mrs. Chau in her statement and Mr. Malakassiotis in his letter and submissions suggested that Mrs. Chau was in poor health. Mr. Malakassiotis suggested that this prevented her from going to the local office to pick up the money being transferred by her daughter. Mr. Malakassiotis suggested that the money would be sent to other family members or friends to be picked up and given to Mrs. Chau. However, no evidence was presented on this point. Neither Mrs. Chau nor Mr. Malakassiotis provided evidence as to why only some of the money transfer receipts identified Mrs. Chau as a recipient and, then, why she was named as an alternate or co-recipient at those times. No explanation was given as to why some of the recipient addresses were different, particularly in the year before the accident. Neither Mrs. Chau nor Mr. Malakassiotis provided any evidence as to why there were significant gaps in both the letters and the money transfer receipts, despite the fact that these documents were obtained from approximately seven years pre-accident.

On the basis of this information, I do not accept Mrs. Chau's statement to the local police that her daughter sent her $500 CDN for every three months. Ms. Truong's letters, themselves, do not establish such a pattern. Ms. Truong's letters also bear little, if any, resemblance to what the money transfer receipts suggest she was sending back to Vietnam.

(iii) Mrs. Chau's monthly expenses

Based on numerous discrepancies in the evidence before me, I find that Mrs. Chau has not established what her monthly expenses were at the time of the motor vehicle accident.

In his August 2003 letter, Mr. Malakassiotis stated that Mrs. Chau's monthly expenses amounted to approximately $200 US a month, and consisted of food, hydro, water and occasionally clothes. However, Mr. Malakassiotis provided a schedule as to the "Quantum of Dung Chau's Household Expenses" as follows:

1. Utilities (Electricity and Water) range from $70.00 - $80.00 per month.

2. Food is an average cost of $3.00 per day or $90.00 per month.

In conclusion, Dung Chau's expenses are approximately $170.00 per month.

The schedule makes no mention of clothing costs. Nor does it specify whether the costs are in Canadian or American dollars (a potentially significant difference, depending on the exchange rate in the years and months before the accident). Even if the currencies were the same, the stated monthly amounts, themselves, vary. Mrs. Chau's police statement (in conjunction with Mr. Malakassiotis's letter to the effect that Ms. Truong was her mother's sole source of income) suggests that Mrs. Chau had monthly expenses of $167 CDN ($500 CDN for every three months). Assuming the accuracy of this amount, this is significantly less than the $200 US noted in Mr. Malakassiotis's August 2003 letter. At the hearing, Mr. Malakassiotis, himself, suggested that Mrs. Chau's police statement was unreliable as it pertained to the amount and frequency of Ms. Truong's support of her mother.

Ms. Truong's letters to her mother raise several other questions as to nature and extent of Mrs. Chau's monthly expenses. The letters indicate that Ms. Truong occasionally sent her family medicine, such as anti-bacterial cream, menthol oil and burn medication. This raises the question of whether Mrs. Chau had certain medical needs and expenses not referred to in Mr. Malakassiotis's documents or in Mrs. Chau's police statement. Ms. Truong's letters also suggest that she is sending her mother money to buy rice, groceries and charcoal. It is unclear whether Mr. Malakassiotis's statements concerning the monthly expense of "hydro" is something different and/or in addition to Mrs. Chau's apparent need for "charcoal."

The letters suggest that Ms. Truong is sending money so that Mrs. Chau can support her family, including her grandchildren. For example, in November 1999, Ms. Truong writes that she is sending her mother "$300 Canadian for you to buy rice and take care of my nephews and/or nieces for 3 months." Mr. Malakassiotis also stated that Mrs. Chau claimed that all six children living with her (some of whom appeared to be married and to have children of their own) were dependent on Mrs. Chau for food and shelter. Mr. Malakassiotis's letter is unclear as to whether Mrs. Chau's stated monthly expenses were for her personally or for her family as a whole. As noted above, Mrs. Chau has not established how many children she has, nor how many children live with her, and therefore, how many people she has had to support.

Mr. Malakassiotis stated that Mrs. Chau owned the home in which she lived. However, no evidence was provided to this effect. Even if Mrs. Chau did own her house, this raises the question of whether she had any monthly expenses to maintain it, including cleaning or repairing the house, or paying taxes on it. Finally, this raises the issue of whether and to what extent Mrs. Chau's children (all of whom appeared to be well into their adult years at the time of the accident) provided assistance around the house. Neither Mrs. Chau nor any of her children presented evidence on this issue. Again, in relation to the issue of "money's worth," Mrs. Chau has not established whether certain housing expenses existed and/or were provided by her grown children.

(iv) Conclusion

On the basis of the evidence before me, I find that Mrs. Chau was not principally dependent for financial support on her daughter, Ngoc Truong.

I am required to consider all of Mrs. Chau's circumstances at the time of the accident. However, Mrs. Chau provided very little information in this regard. She did not provide any explanation as to why she did not give State Farm some of the basic information it requested, nor did she provide any direct or reliable evidence on various basic issues regarding her family situation and living conditions. I note in this regard that Mr. Malakassiotis indicated at the hearing that he had, in fact, met with Mrs. Chau when she travelled to Toronto after the accident, and that they canvassed the issues of financial dependence. Mrs. Chau was also able to produce letters and money transfer receipts from several years before the accident, and was able to approach the local Police Chief to obtain a "certified" statement. I find that Mrs. Chau ought to have provided significantly more information on some of the basic issues in this hearing, or at the very least, have provided an explanation as to why this information could not be obtained.

The jurisprudence in this area requires me to consider the amount and duration of Mrs. Chau's dependency, her financial or other needs and her ability to be self-supporting. I find that Mrs. Chau has failed to establish any of these basic elements. Specifically, she did not establish the sources of her income, the amount of her income, the nature and extent of her monthly expenses and any other support available to her. While Ms. Truong's letters and money transfer receipts suggest that she was sending money and other items back to Vietnam, Mrs. Chau has not established how much or how often she received payments from her daughter. Mrs. Chau has also failed to address whether any of her many other children could or did provide her with financial or other support. This is particularly important given that Ms. Truong appeared not be fully aware of whether and to what extent her siblings were providing Mrs. Chau with support (in terms of both money and money's worth). I have found Mrs. Chau's only direct evidence on the issue of who was supporting her and to what extent (namely, the police statement) to be incomplete, inaccurate and unreliable. The evidence directly from Ms. Truong is simply too sporadic, varied and inconsistent to establish that she was providing her mother with a regular amount of support sufficient to cover her monthly expenses and which eclipsed the assistance provided by her other siblings.

Mrs. Chau was unable to establish the basic matter of what her monthly expenses were at the time of the accident. Mrs. Chau's evidence on this point had significant gaps and inconsistencies. The available information suggests that Mrs. Chau had significantly greater obligations than those referred to by Mr. Malakassiotis. The information provided by Mr. Malakassiotis was, itself, inconsistent and unreliable. Without knowing what Mrs. Chau's expenses were prior to the accident, I am unable to conclude that Ms. Truong's support (whatever it may have been) was the principal source by which Mrs. Chau managed those expenses.

I conclude that Mrs. Chau has not discharged the onus on her of establishing that she was principally dependent for financial support on her daughter, Ms. Truong. Mrs. Chau's claim for death benefits pursuant to section 25 of the Schedule is dismissed.

EXPENSES:

The parties did not address the issue of expenses at the preliminary issue hearing. If required, the parties may now make submissions on this matter, pursuant to the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

August 26, 2005

Eban Bayefsky Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 119

FSCO A04-000559

BETWEEN:

DUNG CHAU

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mrs. Chau's claim for death benefits pursuant to section 25 of the Schedule is dismissed.

August 26, 2005

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.