G.K. v. Security National Insurance Company, 2017 CanLII 81584

Safety, Licensing Appeals and Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 | 1-800-255-2214 TTY: 416-916-0548 | 1-844-403-5906 Fax: 416-325-1060 | 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 | 1 800 255-2214 ATS : 416 916-0548 | 1 844 403-5906 Téléc. : 416 325-1060 | 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair Date: December 1, 2017 File: 16-001904/AABS Case Name: G.K. v. Security National Insurance Company

Written Submissions By: For the Respondent: Linda Matthews, Counsel For the Applicant: David J. Levy, Counsel

Overview

1This reconsideration concerns a motor vehicle accident that took place outside of Ontario and the resulting question of whether G.K., who was injured in the accident, is covered under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). In turn, that question required the Licence Appeal Tribunal (the "Tribunal") to determine whether G.K. is an "insured person" under the Schedule. That is the central determination at the heart of this reconsideration.

2G.K. arrived in Canada on a student visa in 2010 and lived in Toronto until August 2014, when he moved to Alberta for a work contract. While in Alberta, he sustained serious and catastrophic injuries in a motor vehicle accident on November 8, 2014. Security National Insurance Company ("Security National") issued payments to G.K. under an Alberta accident benefits policy. However, on December 11, 2014, G.K. then applied for benefits in Ontario under the Schedule. Security National denied his application on the basis that the accident happened in Alberta, that G.K. was not a resident of Ontario at the time, and, therefore, that he did not meet the definition of "insured person" under the Schedule.

3G.K. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") to dispute Security National's denial.

4The Tribunal held an in-person hearing on February 7 and February 9, 2017 to resolve the parties' dispute. In its decision of May 17, 2017, the Tribunal found that, at the time of the accident, G.K. was indeed a resident of Ontario within the meaning of the Schedule and therefore, an "insured person" under the Schedule.

5On July 6, 2017, Security National asked me to reconsider the Tribunal's decision, arguing that the Tribunal erred in a number of ways, discussed below.

6For the reasons that follow, I deny Security National's request for reconsideration.

Reasons

7The relevant test for granting a reconsideration is set out in Rule 18.2(b) of the Tribunal's Rules of Practice and Procedure ("LAT Rules"). It states that the Executive Chair will not grant a request for reconsideration unless the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different outcome.

8Security National submits that the Tribunal misapprehended the test for resident under the Schedule; ignored the 60-day residency requirement in part (c) of the definition of "insured person" outlined in s. 3 of the Schedule for persons who have left Ontario; failed to consider or assign appropriate weight to evidence of central importance to the legal test, including G.K.'s temporary Canadian visa or his full time work in Alberta; and made findings of fact in the absence of documentary evidence where adverse inferences were appropriate instead. I disagree.

9I am not persuaded that the Tribunal made any error. To the contrary, I find that the Tribunal applied the correct legal test and appropriately considered and weighed the relevant evidence in reaching its conclusion that G.K. was a resident of Ontario and, therefore, an "insured person" under the Schedule.

10At the heart of its request, Security National disagrees with the Tribunal's findings of fact. However, it is not the role or purpose of reconsideration to second-guess reasonable factual findings made based on sufficient evidence.

The Tribunal did not err in determining G.K. is an "insured person" and a resident of Ontario as per the Schedule

11Under s. 2(4) of the Schedule, benefits are payable to an "insured person". Thus, in order to claim accident benefits under the Schedule from Security National, G.K. must be an "insured person."

12In turn, "insured person" is defined in s. 3 of the Schedule. Relevant to this case is part (c) of the definition of "insured person" outlined in s. 3 of the Schedule as follows:

3. (1) [...] "Insured person", means, in respect of a particular motor vehicle liability policy,

[...] (c) a person who is an occupant of the insured automobile and who 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 Ontario;

13The above definition makes clear that, if an accident takes place outside of Ontario, the applicant's place of residence becomes relevant to whether or not he or she is an "insured person" and therefore eligible for accident benefits in Ontario.

14Because the term "resident" is not defined in the Insurance Act¹ or the Schedule, the determination turns largely on the facts of each case. According to the established case law, residency is a question of fact and a matter of the degree to which the person's connection with the place is permanent or temporary.²

15In this case, the Tribunal found that G.K. was a resident of Ontario at the time of the accident and, therefore, that he satisfied the definition of an "insured person" as defined in s. 3 of the Schedule.

16Essentially, Security National disagrees with the Tribunal's findings of fact as they relate to G.K.'s residency in Ontario. More specifically, Security national disagrees with the weight the Tribunal allotted to some to the evidence. However, I find that the Tribunal did not err in its finding of G.K.'s 'residence' in Ontario.

17The factual dispute between the parties was about the nature and intended duration of G.K.'s stay in Alberta.

18G.K. was born in India. He arrived in Ontario in 2010 on a student visa. He lived and studied in Ontario for a period of approximately three years. After graduating from Humber College in the summer of 2013 with a Business Management degree, he was unable to find an office job in Ontario. On August 7, 2014, he left to Alberta when his friend, J.C., called him with news of a job as a truck driver. He began working as a truck driver for an oil company in Alberta in September 2014.

19On November 8, 2014, he was in a serious accident in Alberta. He was hospitalized until January 2015. Upon his discharge from the hospital, he returned to Ontario.

20The Tribunal held an in person hearing over two days and heard oral evidence from G.K. and another witness, Mr. Hutchinson, a private investigator retained by Security National.³ The Tribunal also considered other evidence presented as exhibits or documents in briefs.

21The Tribunal accepted G.K.'s evidence that he intended to stay in Ontario and that Alberta was not his residence on a permanent basis. It concluded, "it was not the applicant's intention to remain in Alberta but to return to Ontario." On that basis, the Tribunal concluded G.K. met the residency requirement outlined in s. 3 of the Schedule.

22Because the term "resident" is not defined in the Insurance Act, or the Schedule, the Tribunal considered relevant court decisions and appropriately concluded that the determination of an applicant's residence is contextual and fact specific.

23The Tribunal accurately relied on Thomson v. Canada (Minister of National Review)⁴, a Supreme Court of Canada case often followed in the accident benefits context when questions of residency are at issue.⁵ In this case, 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. It also emphasized that 'resident' is not a static term.

24In its interpretation of the legal test for "resident", the Tribunal stated the following.

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 the 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..."⁶

After considering the evidence of this case, as it applies to the legal test above, the Tribunal was satisfied that G.K. did not intend to permanently stay in Alberta and that he met the Ontario residency requirement in the Schedule. The Tribunal considered G.K.'s living and work arrangements in Alberta and his intention to return to Ontario. The Tribunal made factual findings with respect to G.K.'s ties to Ontario such as his education, his significant relationships with his fiancé and his friends. On that basis, the Tribunal found that Ontario is G.K.'s place of residence.

25The Tribunal summarized some of the persuading factors that led to its conclusion that G.K. satisfies the residency requirement in the Schedule. The Tribunal found that G.K.:

• had friends and a fiancé, H.K., in Ontario;
• worshipped in Ontario;
• maintained an Ontario driver's licence;
• maintained an Ontario cell phone number even while in Alberta;
• continued to pay rent in Ontario while in Alberta; and
• returned to Ontario immediately upon discharge from the Alberta hospital.

26Security National submits that the Tribunal ignored and did not accord adequate weight to the following evidence:

• Inconsistencies relating to Facebook posts and the relationship with H.K.;
• Information that G.K. was paying rent in Alberta and had signed a lease;
• The purchase of a one way flight ticket to Alberta;
• G.K.'s employment situation in Alberta; and
• The non-permanent nature of G.K.'s immigration status.

27However, this evidence did not persuade the Tribunal. For example, on the evidence related to the Facebook posts and relationship with H.K. the Tribunal found that the relationship with H.K. continued while G.K. was in Alberta and beyond his return to Ontario after the accident. It stated as follows.

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.

28On other evidence related to the lease and payment for rent the Tribunal stated the following:

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)⁷

29It was the Tribunal's conclusion that G.K. was a "resident" of Ontario. It was open to the Tribunal to reach this conclusion. In my opinion, there was sufficient evidence before the Tribunal to determine that G.K. was a resident of Ontario as required by the Schedule. I find that the Tribunal correctly applied the legal test with respect to residency in the context of accident benefits and the facts of this case.

30Security National, in its reconsideration, put forward an alternative definition of "resident" on the basis of which G.K. would not qualify. Security National submits that the Tribunal did not refer or follow the binding decision of the Court of Appeal in Young v. Ontario (Minister of Finance)⁸. In that decision, the Court of Appeal examined whether a claimant was "ordinarily resident" in Ontario and entitled to coverage under the Motor Vehicle Accident Claims Fund. Security National argues that although s. 3 of the Schedule does not use the term "ordinarily resident" but rather refers only to "resident", the Tribunal made a significant error by failing to apply the distinction between the two terms. In addition, Security National argues that the Tribunal ought to have applied the stricter "actual residence" test because "resident" connotes a degree of physical presence. I disagree for the following reasons.

31First, the Tribunal is not required or expected to refer to every argument or every case raised by the parties. Second, the Tribunal is not obligated to interpret the Schedule in a narrow fashion by assessing a distinction between terms that are not explicitly mentioned in the Schedule. In other words, the Tribunal is not required to import the stricter "actual residence" test into the definition of "resident" in s. 3 of the Schedule. Third, the facts of this case are distinguishable from G.K.'s situation. In Young v. Ontario (Minister of Finance), the Court of Appeal was required to determine whether a person who was born, raised, educated and lived in Ontario for most of her life before travelling to New Mexico was "ordinarily resident" in Ontario at the time of the accident.

32Even if "ordinarily" restricts the definition of "resident" in the Schedule, the case law affirms that residency involves permanent and long term elements⁹. Significantly, the Tribunal acknowledged that residency is a question of fact and a matter of the degree to which the person's connection with the place is permanent or temporary. The Tribunal then found G.K.'s residence in Ontario to be of a sufficiently permanent nature such that he was not a resident of Alberta and a "resident" of Ontario for purposes of the Schedule.

33Essentially, Security National's request for reconsideration disagrees with the Tribunal's assessment of the evidence and findings of fact. The Tribunal was persuaded that G.K.'s permanent and long-term stay in Ontario outweighed the elements of his temporary stay in Alberta. The Tribunal had the opportunity to observe the witnesses and to consider all the evidence in its entirety. Its factual findings and reasons do not appear unreasonable, and I do not find any significant errors of law or fact such that the Tribunal would likely have reached a different outcome.

The Tribunal did not err in its interpretation of s. 59(4)(a) of the Schedule

34According 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.

35Security National submits that the Tribunal erred in its focus on G.K.'s residency as outlined in s. 3 and that s. 59(4)(a) of the Schedule is the determinative and appropriate analysis in this case. Security National argues that G.K. is not entitled to accident benefits because he fails to satisfy s. 59(4)(a) of the Schedule.

36Security National argues that G.K.'s immigration status disentitles him from satisfying the requirements of s. 59(4)(a) and that the Tribunal erred in its interpretation of the evidence as it applies to this section. I disagree for two reasons.

37First, I am not convinced the Tribunal made an error in identifying s. 3 as the relevant section for the purposes of determining whether G.K. is an "insured person" and a resident of Ontario and is therefore entitled to accident benefits under the Schedule. The Tribunal found that s. 59(4)(a) does not inform whether G.K. is an "insured person" for the purpose of entitlement to benefits, but rather whether he is an insured person for the purposes of electing benefits in a particular jurisdiction. I agree. Significantly, s. 59 is under Part XI of the Schedule that deals with "Interaction With Other Systems" for accidents that occur outside of Ontario. In my opinion, this means that G.K. may elect the jurisdiction in which to claim benefits if he satisfies s. 59(4). However, s. 59(4)(a) does not inform G.K.'s entitlement to benefits in accordance with Ontario's Schedule. The starting point in this case is s. 3 and an analysis of whether G.K. is an "insured person".

38Second, the Tribunal considered Security National's argument and evidence related to s. 59(4)(a) and found no basis or sufficient evidence for which G.K. can be disentitled as an "insured person" under this section.

39Security National argues that the Tribunal erred in its interpretation under s. 59(4)(a) because G.K. was not authorized by law to be or to remain in Canada and was not "living and ordinarily present" in Ontario. Security National takes the position that the Tribunal made an error in its determination on this issue and that, in fact, there was nothing permanent in G.K.'s stay in Canada due to his immigration status. I do not agree with Security National.

40G.K. arrived in Toronto on a student visa in May 2010 to study at Humber College. After graduating from Humber in the summer of 2013, he obtained several study and work permits extending his stay in Canada. Citizenship and Immigration Canada issued a three-year work permit on November 5, 2013, with an expiry date of November 4, 2016.

41The Tribunal was unable to determine that G.K.'s alleged violations of the conditions of his study and/or work permits are sufficient to find he is not authorized by law to be or remain in Canada, as Security National argued.

42After reviewing the evidence and the case law, the Tribunal found that G.K. is not disqualified by virtue of s. 59(4)(a). The Tribunal made the following findings:

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)

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.

43The Tribunal found that individuals on temporary work permits may be found "living and ordinarily present" in a jurisdiction on the basis of case law.

44In this respect, the Tribunal was guided by Parkes v. Heiberg, 1992 CarswellOnt 3426 (OCJ (Gen.Div.) ("Parkes"). In 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" in Ontario at the time of the accident. Similar to Parkes, the Tribunal found G.K.'s residency to be of a sufficiently permanent nature at the time of the accident that he was a resident of Ontario.

45Security National relied on Cruz v. Royal & Sun Alliance Insurance Company of Canada (2003), O.F.S.C.I.D. No. 150, Appeal P01-00032 ("Cruz"), where the applicant was deemed not to be an 'insured person' because she had no intention to remain in Ontario or make Ontario her permanent home. Ms. Cruz lived in Mexico her entire life. Her employer agreed to pay her to study English in Canada, after which she would return to Mexico to head a new department. She arrived on a visitor's visa that was valid for a very short period and had a return ticket dated 4 months after her arrival in Canada. The Arbitrator did not accept her evidence that she intended to stay for 12 to 18 months in Ontario and concluded that she did not meet the residency requirement.

46Although not bound by Financial Services Commission of Ontario ("FSCO") decisions, the Tribunal appropriately distinguished Cruz on the basis of the facts. In Cruz, FSCO's Director's delegate found that Ms. Cruz was not a resident of Ontario and that s. 59(4)(a) (then s. 57(4)(a)) did not assist Ms. Cruz because the Arbitrator determined that she was not "living and ordinarily present in Ontario."¹⁰ I note that Ms. Cruz's evidence of her presence in Ontario does not compare to G.K.'s evidence of permanence.

The Tribunal found that G.K. is not disqualified by virtue of s. 59(4)(a), and that he was, in fact, "living and ordinarily present" in Ontario. Unlike Cruz, the Tribunal was satisfied that G.K.'s intention was not to remain in Alberta and that Ontario was his permanent home. I see no error in the Tribunal's decision.

Conclusion and Order

47For the reasons stated above, I am not persuaded by Security National's arguments. The Tribunal identified the correct law and applied the correct test for residence in accordance with the evidence. In this case, there is no reason not to afford deference to the Tribunal's role as a fact finder. The Tribunal's reasons and line of analysis were entirely reasonable, and I do not find any significant errors of law or fact such that the Tribunal would likely have reached a different outcome.

48I find that the Tribunal did not err when it determined that G.K. is a resident of Ontario and an insured person under the Schedule. As a result, this reconsideration is dismissed, and the order of the Tribunal dated May 17, 2017 is affirmed.

Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1R.S.O. 1990, c. I-8.
2. 2Thomson v. Canada (Minister of National Review), 1946 CanLII 1 (SCC), [1946] S.C.R. 209 at page 702 [Thomson].
3. 3The Tribunal made a ruling on the admissibility of documents allowing Mr. Hutchinson’s investigator report and unsworn and unsigned statement of J.C. However, it ultimately afforded little weight to J.C.’s unsworn statement and Mr. Hutchinson’s evidence.
4. 4Thomson, supra note 2 at page 232.
5. 5Cruz v. Royal & Sun Alliance Insurance Company of Canada (2003), O.F.S.C.I.D. No. 150, Appeal P01-00032 [Cruz].
6. 6Thomson, supra note 2, at page 225.
7. 716-001904 v. Security National Insurance Company, 2017 CanLII 33677 (ON LAT) at 68.
8. 82003 CanLII 23640 (ON CA), [2003] O.J. No. 4832.
9. 9Thomson, supra note 2; Parkes v. Heiberg, [1992] O.J. No. 1921; Cruz, supra note 6.
10. 10Cruz, supra, note 6, at page 11.