G.K. v. Security National Insurance Company, 2017 CanLII 33677

Date: 2017-05-17

Tribunal File Number: 16-001904/AABS

Case Name: 16-001904 v Security National Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

G. K.

Applicant

and

Security National Insurance Company

Respondent

DECISION

Adjudicator: Lori Marzinotto

Appearances:

Applicant: G.K.

Counsel for the Applicant: David J. Levy and Michael Courneyea

Counsel for the Insurance Company: Linda Matthews and Alana Daley

Interpreter: Zeba Ahmed

Court Reporter: Matthew Dixon

HEARD In Person: February 7, 2017 and February 9, 2017

Overview / Introduction:

1. The applicant, G.K., was injured in a motor vehicle accident on November 8, 2014 in Alberta (the “Accident”).

2. Security National Insurance Company (the “respondent”), had issued payments to the applicant under an Alberta Accident Benefits policy in the amount of $91,600.00, which, according to the respondent, was the full coverage available under the Alberta policy. Having paid out the full benefits available in Alberta, the respondent closed its file.

3. On December 11, 2014, the applicant applied for accident benefits in Ontario under the Statutory Accident Benefits Schedule – Effective September 1, 2010.

4. The respondent denied the applicant’s application for accident benefits in Ontario on the basis that the accident happened in Alberta and the applicant was a resident of Alberta.

5. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) seeking benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹

6. An in-person preliminary hearing was held on February 7 and February 9, 2017.

7. The issue to be decided at the preliminary hearing is as follows:

Is the applicant a resident of Ontario and entitled to benefits under the Schedule as an insured person?

Result

8. I find that the applicant is a resident of Ontario under the Schedule and is entitled to seek benefits as an insured person.

9. Accordingly, whether the question of the applicant’s entitlement to the specific benefits denied by the respondent will proceed to a hearing on June 19 - 20, 2017, as ordered at the case conference held on November 1, 2016.

Law and Analysis

10. The issue I must decide is whether the applicant is a resident of Ontario and entitled to benefits under the Schedule as an insured person.

11. Under s.2(4) of the Schedule, benefits are payable to an “insured person”.

12. There are two sections of the Schedule that pertain to accidents that occur outside of Ontario: s.3(1)(c) and s.59(4)(a).

13. The applicant is an “insured person” under s.3(1)(c) if I find that he is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident if the accident occurs outside of Ontario.

14. Section 59 under Part XI of the Schedule, deals with the “Interaction With Other Systems” for accidents that occur outside of Ontario.

15. Pursuant to s.59(4)(a) of the Schedule, a person is insured in the jurisdiction in which the accident occurred if, at the time of the accident the person was authorized by law to be or to remain in Canada and was “living and ordinarily present” in Ontario.

16. The applicant submits that s.3(1)(c) is the relevant section of the Schedule.

17. The respondent submits that s.59 is the relevant section of the Schedule to determine whether the applicant is an insured person since the accident happened outside of Ontario.

18. I agree with the applicant that s.59(4)(a) does not inform whether the injured person is an “insured person” for the purpose of entitlement to benefits but rather whether the applicant is an “insured person” for the purposes of electing benefits in a particular jurisdiction.

19. In this proceeding, I find that s.3(1)(c) is the relevant section for the purpose of determining whether the applicant is a resident of Ontario and entitled to benefits under the Schedule as an “insured person”.

20. In any event, if I am wrong with respect to my interpretation of the application of s.59, I find that the applicant is a “resident” of Ontario (s.3(1)(c)) and/or “ordinarily present in Ontario” (s.59(4)(a)) and therefore an insured person under the Schedule.

21. Neither the Insurance Act, R.S.O. 1990, c. I-8, nor the Schedule defines resident. However, there is considerable jurisprudence which considers residency.

22. In Thomson v. Minister of National Review, 1946 CanLII 1 (SCC), [1946] S.C.R. 209 at 232, a case often cited when questions of residency are at issue, the Court found that determining whether a person is a resident or determining a person’s ordinary residency, requires taking all relevant factors into consideration.

23. As stated in Thomas, resident is not a static term.

…“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. (pg. 224)

24. A person may be a resident whether they live in a place permanently, temporarily or ordinarily resides in a place. Residency is “a matter of degree to which a person in mind and fact settled into or maintains or centralised his ordinary mode of living with its accessories in social relations, interest and conveniences…” (Thomas pg.225)

25. There is no dispute that the applicant sustained serious and catastrophic injuries in the Accident.

26. He had sustained a traumatic brain injury and formal cognitive testing revealed severe cognitive impairment.

27. The applicant remained in the hospital in Alberta until January 2015. On January 27, 2015, a day after he was discharged from the hospital, the applicant returned to Ontario where he continues to live today.

28. There is no dispute that at the time of the Accident, the applicant held an Ontario driver’s licence and was driving a vehicle that was insured in Ontario. The applicant was not a named insured on the Ontario insurance policy.

29. A number of relevant factors lead me to the conclusion that the applicant was a resident of Ontario.

Basis for Finding the Applicant is a Resident of Ontario

i) Life and Connections in Ontario

30. The applicant, born in India, arrived in Toronto Ontario on a student visa in May 2010 to study at Humber College.

31. The applicant testified that there was a large Indian community at Humber College and he met the students that he began living with while attending school.

32. The applicant testified that soon after he arrived in Ontario he obtained a cell phone. He has maintained an Ontario cell phone although not the same number since arriving in Canada

33. When the applicant arrived in Ontario, he stayed with a friend in Malton. The applicant then moved to an address (“Address #1”), in Etobicoke and rented a basement apartment with other students from Humber College.

34. In 2012, the applicant moved to a different apartment in Etobicoke (“Address #2”), also with other students. The applicant could not recall how long he lived at Address #2 but believed he lived there until the end of 2013 or January or February 2014 until he moved to another address in Etobicoke address (“Address #3”).

35. The applicant worked at an off campus McDonald’s location from July 2012 until the end of April 2014.

36. In March 2014, the applicant obtained his Ontario G Driver’s Licence.

37. In May 2014, after taking a course, the applicant obtained his Ontario AZ Driver’s Licence, enabling him to drive a truck.

38. The applicant filed income tax returns in Canada. A notice of assessment for the 2010 tax year and Income Tax Return Information from the Canada Revenue Agency was provided for the 2011-2015 tax years.

39. The applicant testified that he attended a Sikh temple that was close to his house 2-3 times per week and during special occasions in June or July. He would attend with his friends and with H.K., his fiancé.

40. The respondent disputes that the applicant was engaged to H.K.

ii) Relationship with H.K.

41. I find as a fact that the applicant and H.K. were engaged.

42. The applicant met H.K., in 2012 or 2013 at Humber College. The applicant testified that H.K. had been living at Address #2 with him and then they moved together to Address #3. The applicant submits that he became engaged to H.K. in 2013 or 2014.

43. The applicant testified that both he and H.K. had informed their parents that they were engaged.

44. There is a sworn affidavit from R.S., the landlord of Address #3, confirming that the applicant and H.K. lived there and were engaged. The respondent objected to having the affidavit admitted into evidence because she was not in attendance at the hearing to be cross-examined. The applicant’s counsel submitted that R.S.’s husband would not give permission to R.S. to attend the hearing.

45. After hearing submissions, I found that the affidavit of R.S. was admissible and I would decide what weight to give it. Although the affidavit is sworn, I placed little weight on it given that R.S. was not available for cross-examination.

46. However, even though I did not place much weight on the affidavit, I find that there is sufficient evidence to support the fact that the applicant and H.K. were engaged.

47. Subsequent to the Accident, H.K. submitted an Application for the Alberta Health Care Insurance Plan² dated November 20, 2014, on behalf of the applicant where she indicated that she was the applicant’s fiancé. In addition, the Application for Accident Benefits, dated December 11, 2014 lists H.K. as the applicant’s fiancé. Hospital records also indicate that he was engaged to be married and his fiancé lives in Ontario (Ex 44).

iii) Post Humber College Graduation

48. The applicant graduated from Humber College in July or August 2013, with a Business Management degree.

49. After graduating, the applicant applied for a work permit. The applicant obtained several study and work permits extending his stay in Canada. A three year work permit was issued by Citizenship and Immigration Canada on November 5, 2013 with an expiry date of November 4, 2016.

50. After he graduated, the applicant testified that he was looking for office jobs. J.C., a friend the applicant met while at Humber College who had moved to Edmonton after completing his studies, told the applicant that he could make money as a truck driver in Alberta. Rather than sit idle while looking for an office job, the applicant could make some money in Alberta.

51. The applicant testified that he and H.K. discussed the applicant going to Alberta for a few months to earn some money and then return to Ontario. He did not want to sit unemployed while looking for an office job. H.K. would remain in Ontario while the applicant was in Alberta.

52. The applicant submits that J.C. told him he would call him when he found a job for the applicant. Subsequently J.C. called him and told him there was work in Alberta.

Leaving for Alberta

53. A few days after the applicant received the call from J.C., the applicant purchased a one-way plane ticket to Alberta and left Ontario on August 7, 2014. H.K. remained in Ontario.

54. The applicant testified that he booked a one way ticket because he was unclear of the job at the time and was not sure if it was a one day assignment, two week assignment or if it was just to talk about the job and then return to Ontario.

55. The applicant testified that he continued to help H.K. pay the rent in Ontario while he was in Alberta.

56. The applicant testified that he did not want to stay in Alberta. The applicant testified that his intention was to go to Alberta, make some money and return to Ontario. His friends and H.K. were in Ontario.

Facebook Posts

57. On August 5, 2014, the applicant posted the following on his Facebook page “Live alone is something different and annoying..feeling shattered……” (Ex #15)

58. On August 11, 2014, the applicant posted the following on his Facebook page, “I miss my Toronto home n hope to see u sooooooonnnnnnnnnnnnn……” (Ex#14)

59. In a reply post on August 12, 2014, the applicant also stated “New home callgaryyyyyyyy……..” (Ex #14)

60. The respondent submits that the Facebook posts are indicative of the applicant breaking up with H.K. prior to leaving for Alberta and of the applicant’s intention to make Alberta his home.

61. The applicant submits that he and H.K. did not end their relationship before he went to Alberta and that he felt alone. He was already separated from his parents and now he would also be apart from H.K.

62. I find the applicant’s evidence credible with respect to the Facebook posts. H.K.’s post-Accident behaviour does not suggest that she and the applicant had ended their relationship. H.K. attended at the hospital in Alberta after the applicant’s Accident and in the application for health care in Alberta and the Application for accident benefits, H.K. was listed as the applicant’s fiancé.

63. After being discharged from the hospital and returned to Ontario in January 2015, the applicant and H.K. remained at Address #3 for a few more days and then they moved together to Address #4. The applicant testified that H.K. had to work and was unable to care for him.

64. The applicant testified that he and H.K. remained together until February 2015 when H.K. ended their relationship.

Alberta Living Arrangements

65. Once in Alberta, two people who the applicant had never met before, took him to an apartment where J.C. and a few others were living.

66. The applicant was not sure if he had paid rent while he was living in Alberta. He could not recall paying rent or if it was deducted from his wages.

67. The applicant testified that he did not sign an employment contract in Alberta.

68. The respondent submits that the applicant signed a lease agreement while in Alberta. There is no evidence to support that the applicant signed a lease agreement. The lease agreement that was submitted into evidence (largely illegible) had the applicant’s name hand-printed on the first page but did not contain the applicant’s signature. The applicant also testified that the lease agreement did not contain his signature. (Ex #35)

Alberta Employment

69. The applicant began working as a truck driver for an oil company in September 2014.

70. Although the applicant produced one cheque which he said were his wages, he stated that the cheque was not honoured. Despite requests from the respondent, no banking records or receipts were produced to show that the cheque was not honoured.

71. The applicant also testified that he only received $1000 from the company for his work in Alberta. The applicant indicated that money was given to H.K. while he was in the hospital but the applicant did not receive any of it.

72. On November 8, 2014 the applicant was in the Accident and hospitalized in Alberta until January 2015.

Respondent’s Not Authorized by Law Argument

73. The respondent went to great lengths to demonstrate that the applicant was in violation of the conditions of his study and/or work permits and therefore may not have been “authorized by law” to be in or reside in Canada. The respondent argued that if the applicant was not authorized to be in Canada due to permit violations he would not be “insured” under the Schedule.

74. While in Ontario, the applicant applied for and obtained study permits and work permits. The permits contained conditions, for example, authorizing the applicant to work in certain circumstances, prohibiting the applicant from working in certain circumstances, and unless authorized, prohibited the applicant from attending education institutions and taking any academic, professional or vocation training courses. The permits also indicated the date upon which the applicant had to leave Canada.

75. There has been no finding that the applicant was in violation of his permits or was not authorized by law to be in or reside in Canada. Based on the information provided, I am unable to make a finding that the alleged violations are sufficient to find he is not authorized by law to be in or reside in Canada.

76. I find as a fact that at the time of the accident, the applicant held a valid work permit that was issued on November 5, 2013 with an expiry date of November 4, 2016. (Ex #4)

77. The case law is clear in that you do not need to be a permanent resident in order to be deemed a resident. Individuals on student or work visas may be considered residents.

78. In Parkes v. Heiberg, 1992 CarswellOnt 3426 (OCJ (Gen.Div.)), Parkes, a Jamaican citizen, who worked as a farm labourer in Ontario on temporary work permits for 3 years from June until December and returned to Jamaica each December, was found to be “ordinarily resident”³ in Ontario at the time of the accident.

79. It is clear from the Parkes case that individuals on temporary work permits may be found ordinarily resident. In Parkes, his residency was found to be of a sufficiently permanent nature at the time of the accident that he was a resident of Ontario.

80. The respondent relies on the Cruz v. Royal & Sun Alliance Insurance Company of Canada (2003), O.F.S.C.I.D. No. 150, Appeal P01-00032, case where the Director’s delegate indicated that “residency involves an element of permanent, the indefinite or the long term that must outweigh the temporary”. Cruz was found not be a resident of Ontario.

81. The facts in Cruz established that she had no intention to remain in Ontario or make Ontario a permanent home. I find Cruz distinguishable on the facts. Cruz, a Mexican citizen, arrived in Ontario after her employer agreed to pay her to study English after which she would return to Mexico to head a new department. The applicant in this proceeding was clear in his testimony that he did not want to remain in Alberta and was to return to Ontario in a few months.

82. Based on the totality of the evidence before me, I find that the applicant was a resident of Ontario at the time of the accident. The evidence demonstrates that the applicant:

i) had a significant relationship in Ontario: a fiancé;

ii) had friends in Ontario;

iii) worshipped in Ontario;

iv) maintained an Ontario cell phone number even while in Alberta;

v) continued to pay rent in Ontario while in Alberta; and

vi) returned to Ontario immediately upon discharge from the Alberta hospital

83. I find that it was not the applicant’s intention to remain in Alberta but to return to Ontario.

Preliminary Issues:

i) Admissibility of the Investigator’s Report and Unsworn/Unsigned Statement of J.C.

84. The respondent sought to have a report of investigator Greg M. Hutchinson dated January 31, 2017 (the “Report”), and the unsigned statement of J.C. (the “Statement”), entered as exhibits and have the oral testimony of Mr. Hutchinson admitted.

85. After hearing submissions from the parties, reviewing the Report, Statement and case law with respect to the admissibility of the proposed evidence, I find the Report and Statement admissible but I will determine what weight to give it. Mr. Hutchinson is available to testify and therefore the applicant will have an opportunity to cross-examine him on his Report and the Statement.

86. The Report outlined Mr. Hutchinson’s interviews with J.C. and also an interview with R.K.⁴ I gave little weight to the Report, Statement and oral evidence of Mr. Hutchinson.

87. I gave little weight to the Statement because it was unsigned and but for a correction, it essentially mirrored what was contained in the Report. Although the Report outlined the interviews of J.C. and R.K., there was no statement obtained from R.K.

88. The information from J.C. and R.K. that Mr. Hutchinson outlines in his Report are contradictory. Although the information in the Statement would be relevant to the proceedings, I do not find it reliable given that the information between the two individuals is contradictory on important facts.

89. For example, J.C. indicates that the applicant and H.K. were not engaged, while R.K. indicates that they were engaged. More importantly, J.C. indicates that the applicant told him he intended to stay in Alberta and believes that the applicant would have stayed there but for the Accident. R.K. indicates it was her belief that it was the applicant’s intention to stay in Alberta for a few months and then return to Ontario. R.K. further indicates that the applicant did not intend to reside in Alberta permanently and that he was only testing the Alberta job market.

90. The contradictory statements go to the heart of the issue in dispute. Given the contradictory information and that the Statement of J.C. is unsigned, I find little if any value in the Report, Statement or oral testimony of Mr. Hutchinson, which was largely a repetition of what was contained in the Statement and Report.

ORDER

91. After considering the evidence, pursuant to the authority vested in me under s.280(2) of the Act, I find that the applicant is a resident on Ontario and accordingly an insured person under the Schedule. The question of whether the applicant is entitled to the specific benefits denied by the respondent will proceed to a hearing on June 19-20, 2017, as ordered at the case conference held on November 1, 2016. I am not seized for the hearing.

Released: May 17, 2017

____________________________

Lori Marzinotto,

Adjudicator

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Although the applicant did not obtain an Ontario Health Insurance Plan Card until after the accident, he had a medical and health card as a student. There is evidence that the applicant did not have medical insurance while in Alberta until H.K. submitted an application dated November 20, 2014. (Ex# 11) This was after having already received medical treatment that was not insured in excess of $160,000.00. A Judgment against the applicant in the amount of $166,406.45 for Alberta Healthcare was entered into evidence. (Ex #24)
3. 3In Parkes, the Court was asked to make a finding as to whether Parkes was “ordinarly resident” outside of the Province of Ontario within the meaning of s.25 of the Motor Vehicle Claims Act, R.S.O. 1990, c. M-41.
4. 4R.K., who is identified in the Report as R.K., is earlier described as R.S.