Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 62
FSCO A06-002122
BETWEEN:
DEBORAH PRINCZ
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Jeffrey Rogers
Heard:
Written submissions were completed on January 17, 2007. Further submissions received orally, by telephone conference call, on February 7, 2007.
Appearances:
Paul A. Oddi, solicitor for Mrs. Princz Todd J. McCarthy, solicitor for State Farm Mutual Automobile Insurance Company
Issue:
The Applicant, Deborah Princz, was involved in a motor vehicle accident on November 17, 2004. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm denied her claim for weekly caregiver benefits. The parties were unable to resolve their dispute through mediation, and Mrs. Princz 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:
- Is Mrs. Princz precluded from receiving the weekly caregiver benefits claimed because the child for whom the services were allegedly provided was born on March 23, 2005?
Result:
- Mrs. Princz is precluded from receiving the weekly caregiver benefits claimed because the child for whom the services were allegedly provided was born on March 23, 2005.
ANALYSIS:
Facts and Parties' Positions
Mrs. Princz was four months pregnant when she was involved in a motor vehicle accident, on November 17, 2004. She claims caregiver benefits, for services provided for the child she was carrying, born March 23, 2005.
To be entitled to the benefit, Mrs. Princz must show that she was the primary caregiver for, and residing with, her unborn child at the time of the accident. She must show that the unborn child was a "person in need of care" and that as a result of her injuries in the accident, she suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident.2 Her position is that she meets those qualifications.
State Farm's position is that, because the child was not born at the time of the accident, Mrs. Princz was not "residing with a person in need of care" and further, if she was "residing with a person in need of care", she cannot show that she suffered a "substantial inability to engage in the caregiving activities in which...she engaged at the time of the accident."
Relevant Caselaw
Mrs. Princz relies on a line of decisions, both in the Courts and at the Commission, that have applied the en ventre sa mere principle in finding that an unborn child is "a person" for the purpose of determining entitlement to various Statutory Accident Benefits. She submits that the cases which denied benefits to unborn children were wrongly decided. She provided no cases in which caregiver benefits have been awarded and I have found none.
An unborn child is not "a person" at law, for all purposes. However, in some circumstances, the en ventre sa mère principle confers rights on an unborn child. The principle, and its application, are summarized as follows, in Vasey v. Economical Mutual Insurance Co.3
A fiction has developed in the law that in respect of property rights 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. This fiction has existed over a century. It is so well established that for a statute conferring property rights on children to be interpreted as excluding a child who was en ventre sa mere at the time of the death of the father, would require specific words of exclusion.
The hallmarks of the principle are that it is applied in order to protect the property rights of an unborn child and that it requires "specific words of exclusion".
In Vasey, a pregnant woman whose partner to whom she was not married, was killed in an accident. She claimed a benefit for which one of the qualifications was that she must be the spouse of the deceased. The Schedule defined "spouse" to include "either of a man a woman not being married to each other who have cohabited in a relationship of some permanence where there is a child born of whom they are the natural parents". The couple had no other children. The child, born alive after the accident, claimed a benefit on the grounds of being a dependant of the deceased. The Court found that the woman was not a spouse of the deceased, for the purpose of the Schedule in force at the time. The Court also found that the unborn child was not a dependant of the deceased.
The Court reasoned that the en ventre sa mère principle could not be used to assist the mother in meeting the definition of "spouse" because the application of the legal fiction is restricted to circumstances which are for the benefit of the unborn child.
"Dependant" was defined as "a person under the age of 18 years who resides with and is principally dependent upon the head of the household...". Relying on an earlier decision on entitlement to accident benefits, along with a line of abortion rights cases, addressing the rights of a fetus, the Court found that the unborn child was "not a person at the date of the accident, nor was he residing with or principally dependent upon the head of the household."4
Three FSCO appeal decisions have addressed the issue. The earliest is Christo and Royal Insurance Company of Canada5. In that decision, Director's Delegate Draper confirmed the Arbitrator's ruling that a child born alive was an "insured person" for the purposes of claiming medical/rehabilitation benefits under the relevant Schedule, in relation to injuries the child sustained en ventre sa mère. The Director's Delegate distinguished Vasey on the basis that the legislation applied in Vasey included a requirement that an unborn child could not meet. In other words "the legislation was sufficiently specific to oust the en ventre