J. W. C. v. Certas Direct Insurance Company, 2018 CanLII 132573

Date: 2018-12-05

Tribunal File Number: 17-007593/AABS

Case Name: 17-007593 v. Certas Direct 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:

J. W. C.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher A. Ferguson

APPEARANCES:

Counsel for the applicant:

Douglas Wright

Counsel for the respondent:

Rupinder K. Tatla

HEARD in Writing on:

October 15, 2018

OVERVIEW

1The applicant JWC was injured in an automobile accident on August 4, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2JWC applied for benefits from the respondent Certas Direct Insurance Company (“Certas”) and then applied to the Licence Appeal Tribunal (“the Tribunal”) when the disputed benefits were denied.

3JWC claimed income replacement benefits and various medical benefits.

4Certas has requested that JWC’s appeal be dismissed because JWC is not an “insured person” as defined by the Schedule and therefore is not entitled to claim benefits.

5The Tribunal’s order of August 8, 2018 requires me to determine this issue, and if I find that JWC’s appeal is not barred, the Tribunal must contact the parties to schedule a case conference to discuss and decide next steps in this matter.

PRELIMINARY ISSUE

6The issues before me are:

(1) Does the applicant meet the definition of “insured person” prescribed by the Schedule?

(2) Is JWC eligible to make a s.59 election (explained below)?²

FINDINGS

7I find that JWC has failed to prove that he an “insured person” as defined by the Schedule. Accordingly he is ineligible for benefits and his appeal is dismissed.

8The s.59 election option is not available to JWC.

REASONS

9The Certas policy holder in this case is JWC’s sister, JC. JWC is not listed as a policy-holder or a driver under the Certas insurance policy.

10JWC was at the time of the accident a permanent resident of Canada. He had lived here since 2010. He was sponsored by his mother.³ He moved to British Columbia from Ontario in April 2015.

11In the accident, JWC was a 23 year-old pedestrian struck by a motor vehicle driven by a third party. The accident occurred in British Columbia, and the vehicle involved was registered there.

12JWC expressly agrees in his submission that he can only be considered an “insured person” under the Certas policy if he was dependent on the policy holder, JC.

13The Schedule defines “insured person” in s.3(1) as follows to mean, “in respect of a particular motor vehicle liability policy,

(a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant⁴ of the named insured or of his or her spouse,

i. if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or

ii. if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant, […]”

Was JWC a dependant of the policy-holder at the time of the accident?

14I find that JWC has failed to prove that he was a financial dependant of the policy holder JC at the time of the accident.

15JWC’s own words indicate that:

i. He was married, had a daughter and had employment in restaurants as a waiter and in roofing during the two years leading up to the accident.⁵

ii. He was a self-employed home renovation contractor for six months preceding the time of the accident, working steadily and earning $2,600-$2,700 per month.⁶

iii. He sent $1,000.00 to his wife and daughter overseas for 17 months, until they moved to Canada in February, 2015. He indicated that some of this money was earned from employment, and some was provided by the policy holder JC.⁷

iv. He acknowledges that he is unable to estimate with any certainty the amount of financial support he got from the policy holder JC. He states only that she “gave him a lot”. He mentions that his sister paid for his travel to his homeland and for the flight of his wife and daughter to Canada.⁸

16I acknowledge that JWC submits that the statement attributed to him in para [17]ii above is “inconsistent” with the evidence he provided in his EUO, with the statement made by the policy holder JC, and is unbacked by contemporaneous clinical notes or other corroborating evidence. I nevertheless accept this point of evidence from Certas because:

i. JWC does not flatly deny making the statement attributed to him.

ii. I find the evidence of a regulated medical professional to be credible.

iii. The information provided by JWC is vague and somewhat inconsistent – different assessor were told different things, according to his own submissions. But they were all told by JWC that he was working in construction for some time before the accident.

iv. It is not up to Certas to explain or reconcile inconsistent statements about work or income – the onus is on JWC to do that.

17Criteria for determining financial dependence are set out by the Court of Appeal in Miller v. Safeco. The criteria include: duration of dependency; amount of dependency; the financial and other needs of the alleged dependent; and the ability of alleged dependent to be self- supporting. ⁹

18The courts have gone on to provide additional guidance to reaching a finding on financial dependence:

i. If a person’s income and other resources are sufficient to meet 50% or more of their financial needs, they cannot be considered financially dependent.¹⁰

ii. Once the 50% test is met, whether or not others provide the person with financial help is irrelevant.¹¹

iii. To claim financial dependence on the policy holder, the person must rely on the policy holder for more than they provide to themselves for their financial needs. If several people each provide the person with small amounts to assist them financially, it is unlikely that the person will be found to be financially dependent on any one of those people.¹²

19Certas submits that JWC has not provided it with any documentation that would establish his financial dependence on the policy holder JC. He has failed to provide tax returns or statements to establish income, paystubs, reliable evidence of pre-accident expenses or financial needs or of the amounts purported to have been given to him by the policy-holder JC. He provides no documentation of his sponsorship status that might inform discussion of his dependent status. Accordingly, Certas argues, JWC does not meet the onus on him to prove that he was a dependent of the policy holder JC at the time of the accident.

20I find that JWC is not a financial dependent of the policy holder JWC because:

i. JWC does not dispute the almost complete lack of documentation needed by Certas, and by me, to make a determination of financial dependency. The one OCF-2 provided by JWC indicating income for the month preceding the accident is simply not evidence of his ongoing financial status pre-accident, given his own accounts of a pattern of employment for cash payment, and his account of such expenses as rent and groceries.

ii. JWC’s submissions contain no analysis of the criteria set out by the courts for determining financial dependence. There is, for example, no sense given of the portion of JWC’s financial needs met by the policy holder JC.

iii. His evidence is overwhelmingly based on his recollections, and those of his sister, which overall I find to be too vague to have strong persuasive or probative value.

iv. Taking the above points together, I find no evidentiary basis for determining that JWC was a financial dependant of the policy holder JC.

s.59 Election

21Under s.59 of the Schedule, a person who is insured in another jurisdiction may elect to receive benefits described in the Schedule if:

i. s.59(1)(a) an accident occurs in another jurisdiction within Canada or the USA;

ii. s.59(1)(a) the person is insured in the jurisdiction where that accident occurred;

iii. s.59(4)(b) the person meets the criteria for recovery of benefits prescribed in the jurisdiction where the accident occurred;

iv. s.59(4)(c) the person was not the owner, driver or occupant of an automobile registered in the jurisdiction in which the accident occurred;

v. s.59(1)(b) no benefits were received under the law of the jurisdiction in which the accident occurred.

22If it is determined that an applicant received benefits under the law of the jurisdiction where the accident occurred, the applicant does not have the election option under s. 59 of the Schedule.

23Certas submits that it has confirmed that JWC received benefits from the Insurance Corporation of British Columbia (ICBC) for occupational therapy, home care, medical equipment and transportation expenses. This confirmation is supported by a number of documents appended to the affidavit of AK, Certas claims adviser on JWC’s file, dated September 19, 2018. ICBC paid JWC accident benefits until November 2, 2016, according to an e-mail from the ICBC adjuster to Certas dated October 3, 2017.

24JWC argues that any benefit payments by ICBC were made without his “specific knowledge”. JWC asserts that he was never provided any advice on his options by persons assisting him after the accident, and made no express choice.

25JWC contends “It cannot be said that s.59 purports to take away an injured person's right to make an informed election. Where a person has not been given any choice, much less any information on which to make a decision about that choice, there cannot have been an ‘election’."

26I find that JWC cannot avail himself of the “s.59 election” because:

i. The evidence is that JWC received accident benefits from ICBC which precludes him by operation of s.59(1)(b) of the Schedule. JWC submitted an application for accident benefits dated September 12, 2016 to ICBC.¹³

ii. JWC offers no legal basis for his flat assertion that unless he made an express, informed decision to accept accident benefits from ICBC, he cannot be precluded from the s.59 election option. My plain reading of the Schedule offers no support for such a proposition: there are no exceptions or preconditions attached to the “no benefits received” criterion set by s.59(1)(b).

iii. In any event, my reading of s.59 of the Schedule leads me to believe that it does not apply to persons who are not eligible for accident benefits in the first place. JWC is ineligible to receive benefits because he is not an “insured person” as defined by the Schedule.

"Insured Person" and the Impact of the Priority Regime

27Certas has an ongoing dispute with ICBC about who is required to pay accident benefits to JWC.

28Certas provided JWC with a Notice to Applicant of Dispute Between Insurers on November 25, 2017. JWC was required to object to this transfer of responsibility to ICBC within 15 days under s.5 of O.Reg 283/95. He did not.

29JWC argues that Certas must pay his claims because they were the first insurer to which JWC applied for benefits. JWC is asking to apply his reading of s.2 of Ontario Regulation (“O.Reg”) 283/95, under the Insurance Act (“the Act”) to this matter.

30O. Reg. 283/95, s. 2(1) prescribes that “The first insurer that receives a completed application for benefits is responsible for paying benefits to an insured person pending the resolution of any dispute as to which insurer is required to pay benefits under section 268 of the Act. Section 2(6) states “The first insurer that receives a completed application for benefits from the applicant shall commence paying the benefits in accordance with the provisions of the Schedule pending the resolution of any dispute as to which insurer is required to pay the benefits.”

31JWC argues that Certas acknowledged the application of these provisions when it forwarded notice of a priority dispute to ICBC, and when it advised him that it was obliged to pay benefits as the first insurer to receive a completed application. As a result of these ‘pay now dispute later’ provisions, JWC argues, Certas is required to pay the claimed benefits, and pursue any priority argument against ICBC.

32I note that JWC raised this issue in submissions. It was not properly before me. However, Certas raised no objection and decided to engage the issue in its own submissions. I will therefore consider the issue.

33I find nothing in Certas’ management of JWC’s claim that obliges it effectively to concede JWC’s claim to entitlement.

34I find that the “priority issue” raised by JWC is irrelevant to this matter. I further find that JWC’s claim cannot be advanced on the basis proposed by JWC because:

i. Nothing in my reading of the language O. Reg. 283/95, s. 2 suggests to me that an insurer is obliged to pay benefits to a person who is not included in the definition of an “insured person”.

ii. JWC simply fails to explain how his “priority regime” argument should lead me to conclude that Certas is required to pay benefits to a claimant who has not proved himself to be an “insured person” under the Schedule or how it operates to defeat Certas’ contention that JWC is barred from this appeal because he is not an “insured person”.

iii. I can find no basis for finding that the dispute between Certas and ICBC is or ought to be in in any way determinative of the issues before me.

CONCLUSIONS

35JWC is not entitled to claim accident benefits from Certas because he is not an “insured person” as defined by the Schedule. JWC failed to prove that is a financial dependent of the policy holder JC.

36JWC’s appeal is dismissed.

Footnotes

1. 1O.Reg. 34/10
2. 2NB: Certas asked to add this issue in its submissions. JWC indicated his consent to adding the issue in his submissions and made arguments on it. Accordingly, I will admit the new issue and deciding it.
3. 3Examination Under Oath (EUO) of JWC dated October 19, 2015.
4. 4Emphases are mine.
5. 5ibid
6. 6Reported by JWC in a psychological IE report dated October 13, 2016.
7. 7EUO of JWC dated October 19, 2015.
8. 8ibid
9. 9Miller v. Safeco Insurance Co. of America (1984) 1984 CanLII 2019 (ON HCJ), 48 O.R. 451 (Ont HCJ), affirmed by OCA in (1985) 1985 CanLII 2022 (ON CA), 50 O.R. 2d 797, submitted by both parties
10. 10Dominion of Canada General Insurance Co. v. Ontario (Minister of Finance), 2013 ONSC 4717, submitted by Certas
11. 11Ibid.
12. 12Allstate Insurance v. ING Insurance el al. 20 15 ONSC 4020
13. 13Certas attached a true copy of an application signed by JWC and witnessed to its submissions.```