Basmatie Rampersaud v. TD General Insurance Company, 2013 ONFSCDRS 25

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 25

FSCO A11-002773

BETWEEN:

BASMATIE RAMPERSAUD

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator John Wilson

Heard: October 3, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Naresh Misir for Ms. Rampersaud

Michael Kennedy for TD General Insurance Company

Issues:

The Applicant, Basmatie Rampersaud, was injured in a motor vehicle accident on July 6, 2009. She applied for and was denied certain statutory accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Rampersaud applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Ms. Rampersaud’s primary claim involves caregiving services that she provided to her mother in the period before the accident, and which she claimed to be unable to perform after the accident. One of the primary objections to entitlement to a Caregiver benefit given by TD, was that it did not accept that Ms. Rampersaud resided with a person in need of care as required by the Schedule. By agreement, this discrete issue was addressed as a preliminary issue.

The preliminary issue is:

Is Ms. Rampersaud precluded from claiming a caregiver benefit for the care of her elderly parents on the grounds that she was not “residing” with the person in care at the time of the motor vehicle accident?

Result:

Ms. Rampersaud was “residing” with the person in care at the time of the motor vehicle accident and consequently is not barred from proceeding with her claim for caregiver benefits.

EVIDENCE AND ANALYSIS:

The underlying facts in this claim for caregiver benefits are not seriously in dispute. Ms. Rampersaud, at the time of her motor vehicle accident, lived in the same apartment building as her elderly parents. Her mother, Mrs. Chandrawanty Persaud, who was around 78 years old at the time of the accident, suffered from stage 6 Alzheimer’s and needed significant supervision and support.

Her elderly parents, Mr. and Mrs. K. Persaud, lived at the time of the accident in apartment 710, in the same apartment building with the same municipal address as his daughter, Ms. Rampersaud. Ms. Rampersaud lived in apartment 905 on a different floor of the same building, having moved there prior to the accident with the intention of caring for her elderly parents.

At issue in this preliminary hearing is not whether Ms. Rampersaud was the primary caregiver for her parents, or whether she is unable to perform those caregiving duties, but whether she is barred from claiming a caregiver benefit by reason of the fact that she lived in a different apartment from her parents, albeit in the same apartment building at the same street address, and hence did not “reside with” the person or persons in need of care.

For the purposes of this preliminary issue, TD has conceded that Ms. Rampersaud and her family, prior to the accident, intended to arrange their affairs so that Ms. Rampersaud would be available to provide caregiving services in proximity to her parents. To this end she moved into their apartment building.

The caregiving benefit provisions of the Schedule read as follows:

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

The phrase “residing with” used in section 13(1) is not defined in either the Schedule or the Insurance Act. Consequently, reference may be made to other sources to define what the creators of the section may have intended.

Black’s law dictionary² defines “reside” as “Live, dwell, abide, sojourn, stay, remain, lodge.”

The French version of the provision reads as follows:

(1) L’assureur verse une indemnité de soignant à la personne assurée qui souffre d’une déficience à la suite d’un accident si elle répond aux critères d’admissibilité suivants :

Au moment de l’accident :

i. d’une part, elle résidait avec une personne ayant besoin de soins,

ii. d’autre part, elle était le soignant principal de la personne ayant besoin de soins et dispensait les soins gratuitement.

The word “résider” according to LaRousse,³ derives from the the latin “residere” and has been taken to mean “avoir sa résidence quelque part, y demeurer de façon habituelle.” The general sense is to have a residence somewhere or to remain habitually in one location in a sustained manner.

Residence is often compared and contrasted with “domicile” which is a purely juridical construction. Black’s defines “domicile” as:

That place where a man has his true, fixed and permanent home and principal establishment and to which whenever he is absent he has the intention of returning.

One of the points of departure in any discussion of residence in Canadian law is Rand J.’s decision in Thomson v. M.N.R:

The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance 'residing' is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new. ⁴

Rand went on to contrast the more restrictive term “ordinarily resident”:

The expression 'ordinarily resident' carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.

Bonner J., in S.R. v. The Queen⁵, made the following comments on the use of the word “reside” in the context of income tax:

The word 'reside' [sic] with as used in the section 122.6 definition of the term 'eligible individual' must be construed in a manner which reflects the purpose of the legislation. That legislation was intended to implement the child tax benefit.

In this case the legislative purpose that gives context and meaning to the words “resides with” is that of the accident benefit system as a whole. It has long been accepted that legislation giving access to the accident benefit system, a form of consumer protection, should be liberally interpreted. In Youden, the court approached accident benefits as follows:

In interpreting ambiguous words, I must give them their plain and ordinary meaning within the object and scheme of the Act and the Regulation. This is remedial legislation. The "no fault" legislation deprived the plaintiff of his common law right to sue for damages for loss of income due to another's negligence. The Regulation provides for prompt payment of an income benefit to replace income lost due to the accident without need to prove fault and in lieu of any amount the plaintiff might have been awarded and recovered at common law. The qualifications for the benefit and the formula used are necessarily arbitrary. In this context the legislation should be interpreted broadly and liberally.⁶

Translating the above comments from income replacement benefits to a caregiver benefit, it might be said that an insured is entitled to expect that accident benefits ensure that he or she is entitled to receive compensation adequate to provide at least an approximation of the cost of the continuance of pre-accident caregiving activities.

The Schedule has two different aspects to be considered. On one hand it is a regulation under the Insurance Act and should be interpreted in accordance with the long-established standards of legislative interpretation developed by the courts.

On the other hand, by virtue of section 268 (1) of the Insurance Act, statutory accident benefits are incorporated into each and every automobile insurance policy and may be accessed as a contractual right.

I should note the general rule in construing insurance contracts is, in the presence of any ambiguity, to interpret coverage liberally while strictly construing any restriction or derogation from that coverage.

Having established an approach to take in dealing with the question of residency, it remains to be seen if Ms. Rampersaud’s actual living arrangements are congruent with the intention of section 13(1) of the Schedule. This brings us back to the various attributes of the word “reside” as used in that section.

In Lapierre v. The Queen⁷, Dussault J. stated:

Although residence is the fundamental concept applied to determine if a person is subject to income tax under the Act, that term is nonetheless not defined therein and it is the courts that have attempted to establish its scope. Essentially a question of fact, a person's residence in a given place is determined by a certain number of criteria of time, object, intention and continuity that do not necessarily always carry the same weight and which can vary according to the circumstances of each case. All things considered, residence implies a certain constancy, a certain regularity or else a certain permanence according to a person's usual lifestyle in relation to a given place and is to be distinguished from what might be called visits or stays for specific purposes or of a sporadic nature. When the Act sets as a condition to reside with another person, I do not consider it appropriate to attribute to the verb 'to reside' a meaning which deviates from the concept of residence as it has been developed by the courts.

Dassault J. concluded:

To reside with someone is to live or stay with someone in a given place with a certain constancy, a certain regularity or else in an habitual manner.

Whether or not Ms. Rampersaud was “residing” with a person in need of care at the time of her motor vehicle accident then is a question of fact, which may be determined in the context of time, object, intention, and continuity.

At the time of the accident, it was Ms. Rampersaud’s evidence that she lived in the same apartment building as her elderly parents. She cared for her mother before and after work and on weekends and assisted her father in dealing with the mother in her absence.

Ms. Rampersaud maintained her own apartment in the same building. She had two children who could not be accommodated in the parents’ apartment. While she conceded that her own personal mail went to that apartment and not her parents’, Ms. Rampersaud was insistent that she “resided with” her parents to the extent that was possible under the circumstances.

Notwithstanding the emphasis on Ms. Rampersaud’s postal address put by TD in cross-examination, I do not accept that the postal address necessarily governs residency.

Postal addresses have their own vagaries. One need only point to rural addresses where the same postal address may apply to hundreds of people. Likewise, post office boxes, which are also common, may result in a situation where two persons sharing accommodation having two different addresses, or indeed, the contrary where persons having not only different residences but different domiciles having the same postal address.

I do not read much into Ms. Rampersaud’s admission that the postal address on her bills and correspondence included a different apartment number than her parents. Indeed, the legislation speaks to residing at the time of the accident, and does not delve into Ms. Rampersaud’s future intentions once her mother’s illness has run its course and care was no longer needed. Under such circumstances it simply makes sense that Ms. Rampersaud maintained her own postal address.

This is especially so given Ms. Rampersaud’s evidence as to intention and TD’s concession thereto.

Notwithstanding the case-law relied upon by the Insurer suggesting that residency must have both an intimate proximity and an open-ended commitment, I do not accept that the jurisprudence supports a rejection of Ms. Rampersaud’s claim.

Unlike in McCabe and Guarantee⁸, Mrs. Persaud (the person in need of care) was not resident in an institution which provided the default care, however inadequate, but was in close proximity in both time and space to the caregiver claimant, Ms. Rampersaud.

Nor were Ms. Rampersaud’s caregiving activities temporally limited by visa requirements such as occurred in Kaur and Personal.⁹ Ms. Rampersaud was clear that her commitment to the caregiving task was open-ended and unrestricted.

Indeed, both these cases emphasise that a decision on residency is fact-driven. In this case, a factual analysis supports Ms. Rampersaud.

One could speculate that had Ms. Rampersaud’s family the financial resources to live in an extravagant estate in a posh neighbourhood, this issue would not even arise, since such a large house would have accommodated both her children and her parents with room to spare – all at the same civic and postal address. Access to consumer protection, however, should not be dependent on wealth.

Ms. Rampersaud testified, and TD has accepted for the purposes of this hearing, that she had moved to the building, specifically with the intention of being able to care for her parents. Once she moved there, she remained, undertaking the care on an ongoing basis. Intention, as Rand J. noted, is an important element in determining residency.

It can be said that in doing so, Ms. Rampersaud sojourned, stayed, dwelt or abided¹⁰with a person in care for an indeterminate time on a sustained basis, even though her fixed and permanent home to which she would ultimately return would be her own apartment in the same building. Such is the flexibility of the meaning of “reside” that Rand J. noted in Thomson.¹¹

Consequently, I accept that such a liberal interpretation of “reside” meets with the social welfare and consumer protection aspects of the Schedule. Under such an interpretation Ms. Rampersaud clearly “resided” with her parents at the time of the accident, as that term is used in the Schedule, and I so find.

EXPENSES:

Should the parties be unable to agree on the issue of expenses, I may be spoken to on that issue provided that the provisions of the Dispute Resolution Practice Code are complied with.

February 19, 2013

John Wilson Arbitrator

Date