N.F. v. Certas Direct Insurance Company, 2020 CanLII 37668

Citation: N.F. vs. Certas Direct Insurance Company, 2020 ONLAT 19-004334/AABS

Released Date: 05/25/2020

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:

[N.F.]

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Patricia Conway

APPEARANCES:

For the Applicant:

[N.F.], Applicant

Michelle Jorge, Counsel

For the Respondent:

Matthew Chomyn, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant’s adult son was involved in an automobile accident on August 13, 2013 and the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant, who at the time of the accident was a 52-year-old widow, was the owner of a motorcycle being driven by her adult son on the night of August 13, 2013. The motorcycle was insured by the respondent. The named insured was a person the applicant described as a “friend of her son” named [A.A.]. The applicant’s son was a named driver of the motorcycle on the policy.

3The applicant’s son collided with a motor vehicle making an illegal left hand turn and was killed on August 13, 2013. Since the accident, the applicant, who already suffered from depression and was on ODSP, claims that she has been extremely depressed and basically unable to function at any but the most basic level. On April 30, 2015, she applied for Accident Benefits (OCF 1) to Certas Direct Insurance Company (Certas) in connection with the August 13, 2013 accident that killed her son.

4To be eligible for benefits as a result of the accident, the applicant must have been an “insured person” under the Certas policy that insured the motorcycle involved in the accident.

5Certas conducted an examination under oath of the applicant and thereafter on November 24, 2015 sent her a letter stating that she was not an “insured person” under the policy as she was not a named insured nor a dependant of the named insured on the policy of insurance covering the motorcycle.

6The applicant submitted another OCF 1 to the respondent on or about April 12, 2017 and was again denied, on the same grounds, on April 25, 2017.

7On December 7, 2017, York Region Psychological Services submitted a claim for medical benefits (OCF 18) to Certas for medical and psychological and other services on behalf of the applicant. Certas responded refusing to pay any of the amount requested, once again on grounds the applicant was not a dependent of the insured at the time of the accident.

8On April 15, 2019, the applicant made this application to the LAT.

PRELIMINARY ISSUES

9The respondent has raised the following preliminary issues for determination:

i. Was the applicant an “insured person” under the Schedule at the time of the accident?

ii. Is the applicant statute- barred from claiming the benefits sought as she failed to commence a proceeding to the LAT within two years of the respondent’s denial?

RESULT

10I find that the applicant has not proved on the balance of probabilities that she is an “insured person” under the Schedule at the time of the accident. Therefore, her application to the Tribunal fails.

11Because of my finding on the first issue, the second issue is moot.

LAW

Who is an” insured person”

12The Schedule s 3(1) sets out an expanded definition of an “insured person”. It provides that an “insured person” includes the named insured, a person designated as a driver under the policy, the spouse of the named insured and a dependant of the named insured or of his spouse.

13In this case, the applicant is not the named insured; she is not designated as a driver under the policy and she is not a spouse. The only way she can be covered is if she is a dependant of the “insured person” in the policy, [A.A.], who was her son’s friend.

What is a dependant

14To answer this question, I must first consider what a dependant is for purposes of the Schedule.

15Section 3 (7)(b) of the Schedule states in part that a person is a dependant of an individual if the person is “principally dependent for financial support or care” on that individual.

How do I determine what “principally dependent for financial support or care” means?

16The Ontario Court of Appeal has stated that the Insurance Act and its regulations are consumer protection legislation and should be given a broad and liberal interpretation to achieve this objective. (The Dominion of Canada General Insurance Company v. State Farm Mutual Automobile Insurance Company (2018) ONCA 101).

17This Tribunal has recognized that the language of the Insurance Act and the Schedule should be interpreted in accordance with its grammatical and ordinary meaning, and that finding that there are limits on the persons who are encompassed within the expanded definition of “insured person” is not inconsistent with the Schedule’s consumer protection objective. (18-001020 v Wawanesa Mutual Insurance Company, 2018 Can LII 83527 (ONLAT).

Which party has the obligation to prove what?

18The applicant must prove on the balance of probabilities that she is an “insured person” under the Schedule to succeed in this application.

EVIDENCE

Was the applicant an “insured person” under the Schedule at the time of the accident?

19The applicant was examined under oath regarding her circumstances at the time of the accident. She stated the following:

i. On August 1, 2013, she was living alone in an apartment [in Toronto].

ii. Her son had formerly lived with her and paid some expenses. However, at the time of the accident he was renting a room from her long-time boyfriend and was not living with the applicant.

iii. She was the registered owner of the motorcycle involved in the accident. She bought it for her son to use.

iv. Her son was a designated driver on the insurance policy taken out on the motorcycle; she was not. She has not driven since 2007 when her husband died.

v. The named insured, [A.A.], was a friend of her son. The applicant does not know where in Toronto he lives. The applicant has never lived with him, and he has never supported her or cared for her financially or emotionally.

vi. At the time of the accident she was in receipt of a disability benefit and she was self-supporting.

20There is extensive law on the meaning of the phrase “principally dependant for financial support or care”. However, it is not necessary to set it out and consider it in detail here, because the applicant has brought forth no evidence at all on the basis of which the Tribunal could find that she was a dependant of the named insured at the time of the accident. She appears not to have had any relationship at all with the named insured. She bought or took title to the motorcycle for her son’s use. There is no evidence to explain why [A.A.] is named as the insured under the policy. But the applicant’s evidence is clear that she did not rely on the insured for any support; she was financially self-reliant.

21Applicant’s counsel has put forward no argument or interpretation of the Schedule that could possibly make the applicant fall within the definition of an “insured person”. Her only argument is that since the Schedule is consumer protection legislation, it should be interpreted broadly enough to include the applicant as insured. A consumer protection interpretation of the Schedule would direct me to resolve any ambiguity in the language or meaning of a particular provision in favour of the consumer. However, there is no ambiguity in the provisions of the Schedule defining “insured person” or “dependant”.

22It is clear that the applicant must satisfy the Tribunal on the balance of probabilities that she was principally dependant on [A.A.] for financial support or care at the time of the accident. By her own statements, she has admitted that she was not.

23Applicant’s counsel argues that the applicant’s first language is Farsi, and that she had no interpreter for her examination under oath and did not understand the questions respondent’s counsel asked her. Her position is that as a result, I should give little or no weight to her responses. I have some sympathy with this submission. I think it would have been preferable to have had an interpreter at the examination. The applicant’s answers were sometimes non-responsive and at some points she seemed to be confused. However, the applicant was represented by counsel during the examination and counsel did not object and evidently did not see the need for an interpreter.

24I also note that author of the OCF 18 submitted on behalf of the applicant claiming benefits, states that the applicant was interviewed over the telephone in English and had no discernible difficulty responding to questions. I am satisfied therefore that the applicant has a good understanding of English and is sufficiently fluent in the language to make her understanding of the questions during the examination reliable. I therefore find that her testimony during the examination can be relied on.

25Even if I accept the submission of applicant’s counsel and give little or no weight to the applicant’s statements in the examination, the applicant would still fail to establish that she is a dependant within the meaning of the Schedule and therefore an insured person entitled to claim benefits. If her examination evidence is disregarded, there is still no evidence to suggest that she was dependent on the insured when the accident happened. Since the applicant has the onus of proof on this point, she must fail.

26Because of my finding, the second issue is moot. There is no valid application before me.

CONCLUSION

27I have considered the evidence before me and the arguments of counsel and find that the applicant is not an insured under the policy of insurance for the motorcycle. I appreciate that this may seem unfair. The applicant owned the motorcycle and bought it for her son who died while driving it, and this accident has allegedly markedly increased the applicant’s psychological distress. However, as the cases have pointed out, it is clear from the detail of the definition of “insured person” that the legislature has, while expanding those covered by a policy, carefully circumscribed the expanded “family circle” created by the definition. The applicant cannot come within that circle because she has no relationship with the insured, according to her own evidence.

ORDER

28The application is dismissed.