Licence Appeal Tribunal File Number: 19-013437/AABS
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:
[D.I.]
Applicant
and
TD General Insurance Company
Respondent
DECISION ON A PRELIMINARY ISSUE
ADJUDICATOR:
Lindsay Lake, Vice-Chair
APPEARANCES:
For the Applicant:
Frank McNally, Counsel
For the Respondent:
James Brown, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1On September 15, 2015, [SI] [Mr. I], [DI]’s father, was involved in a motor vehicle accident. At the time of the accident, [Mr. I] was driving an automobile that was insured by a policy held by [LW], [Mr. I]’s mother-in-law. [Mr. I] was listed as a driver on the policy.
2As a result of [Mr. I]’s motor vehicle accident, [DI], the applicant, applied for accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (Schedule) from TD General Insurance Company, the respondent. At the time of the accident, the applicant was an autistic 8 year-old child.
3On February 2, 2018, the respondent initially accepted the applicant’s application for accident benefits. On September 24, 2018, however, the respondent rescinded the applicant’s accident benefits taking the position that he did not qualify as an “insured person” under the Schedule. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
4At the case conference, the respondent raised the preliminary issue of whether the applicant was an “insured person” under the policy. This hearing is to decide that preliminary issue.
PRELIMINARY ISSUE
5The following preliminary issue is to be decided:
(a) Is the applicant an “insured person” under the policy?
RESULT
6I find that that the applicant is not an “insured person” for the purposes of s. 3(1) of the Schedule such that he is entitled to accident benefits under [Ms. W]’s insurance policy. As a result, the application is dismissed.
PROCEDURAL ISSUE – Exclusion of Documents Submitted on Reply
7In its sur-reply submissions, the respondent sought an Order from the Tribunal:
(a) Excluding the following documents submitted with the applicant’s reply submissions as evidence for this preliminary issue hearing:
i. An article entitled, “The real cost of raising children” by Anita Khanna, Karen Duncan, Martha Friendly, and Sid Fankel dated March 7, 2017 available online at: The real cost of raising children (irpp.org); and
ii. Rental Market Report: [cities] CMA (Ontario) released Fall 2015, Canadian Mortgage and Housing Corporation; and
(b) Striking the applicant’s reply submissions regarding these documents at paragraphs 9, 10, 19, 25 and 27.
8The respondent submitted that the applicant failed to disclose the two documents by the deadlines set out in the December 10, 2021 Case Conference Report and Order and the applicant offered no explanation for his non-compliance. The respondent submitted that the inclusion of these documents in reply submissions for the first time represents an improper attempt to split the applicant’s case.
9The applicant did not reference either of the two documents set out in paragraph [7] above in his initial submissions and they were not included in his document brief. I agree with the respondent that introducing new documents at the reply stage is not appropriate and, in effect, is splitting the applicant’s case. For these reasons, the respondent’s request to exclude the two documents set out in paragraph [7] above and strike the applicant’s references to these documents in his reply submissions is granted.
ANALYSIS
10Section 2(4) of the Schedule provides that benefits are payable to “insured persons.”
11The definition of an “insured person” in s. 3(1)(a)(ii) of the Schedule includes a dependent of the named insured, who was not involved in an accident, but who suffers psychological or mental injuries as a result of an accident that resulted in a physical injury to their parent.
12Section 3(7)(b) further states that a person is a dependent of an individual if the person is principally dependent for financial support or care on the individual or individual’s spouse.
13In this matter, it is undisputed that:
(a) [Mr. I] sustained physical injuries as a result of the accident;
(b) The applicant was not involved in the accident and did not witness the accident; and
(c) The named insured at the time of the accident was [Ms. W] who passed away on April 28, 2019.
14Therefore, the applicant must prove on a balance of probabilities that he:
(a) Suffered psychological or mental injuries as a result of the accident that caused physical injuries to [Mr. I]; and
(b) Was principally dependent for financial support or care on [Ms. W], the named insured, at the time of the accident.
15For the reasons that follow, I find that the applicant has failed to prove on a balance of probabilities that he suffered psychological or mental injuries as a result of the accident that caused physical injuries to [Mr. I] and that he was principally dependent for financial support or care on [Ms. W] at the time of the accident. As a result, the applicant is not an “insured person” for the purposes of s. 3(1) of the Schedule.
The applicant has failed to prove that he suffered psychological or mental injuries as a result of [Mr. I]’s accident
16The applicant submitted insufficient evidence to support a finding that he suffered psychological and/or mental injuries as a result of [Mr. I]’s accident.
17The applicant relied upon a November 30, 2017 Social Work Family Needs Assessment report by Christa McParlan, social worker, to support his position that post-accident, he “suffered increased behavioural issues and had difficulty coping with the changes in the family dynamic due to the injuries [Mr. I] suffered from the collision” (Applicant’s Written Submissions, para. 5).
18In McParlan’s report, however, the applicant is not diagnosed with any psychological or mental injuries as a result of the accident. Rather, McParlan only noted that the family has been “greatly impacted,” and that, “without appropriate professional supports for the entire family, this family has many risk factors that will result in significant family deterioration and impact family function” (page 11).
19The applicant also submitted correspondence from the respondent that included the “fax back” portion of a treatment and assessment plan (OCF-18) dated March 16, 2018. This OCF-18 sought treatment for the applicant from a Rehabilitation Assistant. The OCF-18 noted that the applicant’s “biggest concerns/symptoms he displays are: rigidity, routine, social issues, impulsivity, lacks problem solving and sensory issues.” Further, the OCF-18 noted that “without intervention and support[,] limited changes will occur impacting [DI]’s ability to reach milestones and to improve overall family functioning.”
20The concerns/symptoms identified in the OCF-18, however, were largely identified and documented in the pre-accident medical documents before me. For example, in the November 18, 2013 Psychological Assessment Summary Report by Jennifer Metcalf and Dr.Yolanda Korneiuk, psychologist, the applicant was referred for the assessment due to “violent outbursts, rigid fixation on topics and objects, repetitive behaviours, ‘awkward social skills,’ anxiety, obsessions, and sensory issues” (page 1). Additionally, in a May 1, 2015 report by Dr. Peter Humphreys, neurologist, the applicant is noted as having “extremely disruptive behaviour” and had “problems with social interaction and lack of empathy.”
21The applicant also submitted a [the hospital] Emergency Department report from March 12, 2015. This pre-accident report indicated that the applicant’s behavioural issues due to his autism had been worsening, there were increased safety concerns, and the applicant was diagnosed with aggressive behaviour due to mental health.
22The only other medical evidence submitted for the preliminary issue hearing by the applicant was an undated clinical note and record (CNR) following Dr. Humphrey’s May 1, 2015 report. In addition to bearing no date, this document is also incomplete as the page numbers at the bottom indicate “Page: 2/4.” As a result, I am unable to place any weight on this CNR.
23In summary, the limited medical evidence before me contradicts the applicant’s position and shows that the applicant’s behavioural issues were worsening prior to the accident. Therefore, I find that the applicant has failed to prove on a balance of probabilities that he sustained a psychological or mental injury as a result of the accident that physically injured [Mr. I].
The applicant was not principally dependent upon [Ms. W] for care
24I also find that the applicant was not principally dependent upon [Ms. W] for care at the time of the accident.
25The applicant’s mother, [JCI], was in receipt of Ontario Disability Support Plan (ODSP) payments at the time of the accident and did not work outside of the home. While the applicant was enrolled in school at the time of the accident, he was often not at school for various reasons. When he was not at school, [Ms. CI] testified in her cross-examination on her affidavit that he would be “home.” I infer from her testimony that he would be home with [Ms. CI] as [Ms. W] did not reside in the home where the applicant lived.
26[Ms. CI] also affirmed in her March 25, 2022 affidavit that the applicant is administered multiple daily medications at different times throughout the day for impulse control, hyperactivity, and behaviour management. There is no evidence before me to suggest that [Ms. W] was the person primarily responsible to administer this medication especially as [Ms. W] did not reside in the same home as the applicant.
27Further, when asked about [Mr. I]’s part-time employment allowing him to pick up the applicant from school and take them to medical appointments, [Ms. CI] testified in cross-examination that “the medical part was between my mother and myself.” In her affidavit, [Ms. CI] also affirmed that [Ms. W] would babysit the applicant and his siblings and would take them to activities.
28[Ms. CI]’s description of the level of [Ms. W]’s involvement in the children’s care pre-accident differs from McParlan’s November 30, 2017 Social Work Family Needs Assessment report. In fact, McParlan’s report does not mention [Ms. W] at all including under the section entitled, “Pre-accident Family Function.” McParlan reported:
(a) [Ms. CI] and [Mr. I], “were heavily involved in all aspects of the children’s education and school. [Mrs. C] and [Mr. I] were a strong team prior to the accident, they had the mentality of ‘divide and conquer’” (page 5);
(b) [Ms. CI], “relied on her husband as a co-parent of three busy children with unique needs. [Mr. I] was a very involved and engaged co-parent prior to the accident;” and
(c) “[Mr. I] and [Mrs. C[I]] spent time together planning activities, holidays and managing all household tasks” (page 5).
29I place greater weight on the information provided in McParlan’s report over the information provided by [Ms. CI] as McParlan’s report was completed prior to the applicant applying for accident benefits from the respondent. If [Ms. W] had a larger care-taker role in the applicant’s life as described by [Ms. CI] at the time of the accident, this information would likely have been included in McParlan’s report and it was not.
30Even if I am wrong in placing greater weight on McParlan’s report over [Ms. CI]’s evidence, I find that the assistance provided by [Ms. W] of transporting the applicant to medical appointments, babysitting, and taking him to activities does not position [Ms. W] in the role of a primary care provider to the applicant.
The applicant was not principally dependant upon [Ms. W] for financial support
31I find that the applicant was not principally financially dependent upon [Ms. W] at the time of the accident.
32To determine whether the applicant was principally dependent upon [Ms. W] for financial support, the following two-part test from Miller v. Safeco Insurance Co. of America, 1984 CanLII 2019 (ON SC) (Miller) at para. 25 applies:
(a) At the time of the accident, was the applicant self-supporting or was he financially dependent?
(b) If he was financially dependent, was there a principal dependency relationship by the applicant on [Ms. W]?
33The respondent relied upon the Tribunal’s decision in 17-002899 v. Aviva Insurance Canada, 2018 CanLII 83513 (ON LAT) that to meet the requirement that the applicant “principally” depended upon [Ms. W], the applicant is required to prove that more than 50% of the individual’s expenses were covered solely by [Ms. W] (para. 10).
34I agree with the applicant, however, that the assessment of “principally dependent” does not turn on the mathematical analysis of whether a person provides more than 50% of the needs of another. Rather, the determination of principal dependency requires a broader consideration of the following factors set out in Miller, which is also known as the “big picture approach:” Economical Insurance Group v. Desjardins Insurance, 2020 ONSC 1363 at paras. 24-25:
(a) The amount and duration of the financial dependency;
(b) The financial or other needs of the claimant; and
(c) The ability to be self-supporting.
35Therefore, while the “50% +1” approach is an important factor, it is not the only consideration in determining principal dependency: State Farm Mutual Insurance Company v. R, 2018 ONSC 4258 at para. 70.
36As the applicant was not self-supporting at the time of the accident and had no ability to be self-supporting given his age, the dispute regarding the applicant’s financial dependency rests solely on whether the applicant was principally financially dependent upon [Ms. W] at the time of the accident considering the amount and duration of the financial dependency and the financial or other needs of the applicant.
37I agree with the respondent that the applicant failed to submit any admissible evidence regarding the applicant’s financial needs as required by the “big picture approach” in Miller. Even if I had not struck the March 7, 2017 article entitled, “The real cost of raising children,” from the hearing evidence, this article would not have assisted the applicant in discharging his burden as he provided no specific information regarding his own financial needs especially in light of his autism diagnosis.
38Further, I place little weight on [Ms. CI]’s evidence regarding the financial support [Ms. W] provided to the family pre-accident as much of it is incomplete, confusing, and unreliable when tested against [Ms. CI]’s ODSP file information.
39[Ms. CI] was in receipt of ODSP at the time of the accident and had been since 2013. In her ODSP application dated January 14, 2013, [Ms. CI]:
(a) Listed all three of her children including the applicant as her dependent children;
(b) Indicated that she was paying $1,200.00 monthly in rent to [Ms. W];
(c) Indicated that she paid $260.00 per month to [Ms. W] for the 2007 Pontiac Montana that she co-owned with [Ms. W]; and
(d) Only indicated that support income may be available for her three children, including the applicant, in response to whether there were any other financial resources/income to which she or her dependant children may be entitled to.
40In a January 14, 2013 note in [Ms. CI]’s ODSP file, it states that she is the “sole support female with 3 children,” that she had been separated from her spouse of 14 years effective January 10, 2012,1 and that a residential tenancy agreement is on file.
41[Ms. CI] also signed a statutory declaration which included declaring:
(a) That she supplied the information in the application to the best of her knowledge and believed and that all statements were true, and no information required to be given had been withheld or omitted; and
(b) That if there were any change in circumstances relevant to the assistance provided to her, including changes to her assets, income, and living arrangements, that she would notify the administrator, Director, or their designate.
42In an August 13, 2013 correspondence from the Ministry of Community and Social Services, [Ms. CI] was notified that she was approved for ODSP. This correspondence again advised her that she must report any changes in the information that she provided in support of her ODSP application on a Changes Report form. Examples of reportable changes provided were changes to her shelter costs, “such as a change in the amount you pay for rent, mortgage, hydro or gas.”
43[Ms. CI]’s ODSP file contained no Changes Report forms. However, [Ms. CI] testified in her cross-examination that the monthly rent amount payable to [Ms. W] was “intended” to be $1,200.00, but that this amount was “not correct” and that she did not think that that is what she fully paid.
44Further, in the “Accommodation” section of [Ms. CI]’s ODSP Application Checklist, the following expenses/items were not noted as “required:” mortgage information; utilities; heat; property taxes; and condo fees. Information for hydro and insurance expenses, however, were required. While it was [Ms. CI]’s evidence that [Ms. W] paid for the applicant’s family residence’s mortgage, insurance, property tax, condominium fees, utility bills, and Bell services (TV, internet, phone, and cell phones) as evidence that [Ms. W] was primarily financial supporting the applicant, it is unclear if these amounts were to be included in the monthly rent. Indeed, there was a residential tenancy agreement in place between [Ms. CI] and [Ms. W], but no such agreement was submitted as evidence for this hearing. Based on the information contained in the ODSP Application Check list, I am drawing an adverse inference from the tenancy agreement not being produced as evidence for this preliminary issue hearing.
45In any event, it is unclear what monthly amounts [Ms. CI] and [Mr. I] were paying to [Ms. W] prior to the accident. This confusion is well illustrated by the parties’ submissions. For example, [Ms. CI] stated the following in her affidavit:
I would try to pay my mother $1000 a month to help with the above expenses but many months I would be unable to make this payment. My mother would continue to cover the expenses and not expect repayment (para. 17).
46The respondent interpreted this statement to mean that the applicant was paying $1,000.00 a month for expenses in addition to the unspecified amount of monthly rent and the monthly $260.00 payment for the 2007 Pontiac Montana. In reply, however, the applicant submitted that the maximum monthly contribution that [Ms. CI] made to [Ms. W] was $1,000.00 which included rent, utilities, car payments, and miscellaneous expenses. In addition to providing no evidence to support this position as submissions are not evidence, the applicant’s interpretation of [Ms. CI]’s statement regarding the $1,000.00 monthly payment to [Ms. W] is not supported by any Change Forms filed with ODSP.
47Even if I did afford weight to [Ms. CI]’s evidence, which I do not, at best it demonstrates that [Ms. CI] and [Mr. I], as opposed to the applicant, received direct financial support from [Ms. W]. Indeed, even [Ms. CI] affirmed that, “in order to sustain our family’s financial needs, my husband and I have relied heavily on my mother for substantial financial support…since before [DI] was born in 2007” (March 25, 2023 affidavit, para. 12).
CONCLUSION AND ORDER
48I find that the applicant:
(a) Failed to prove on a balance of probabilities that he sustained a psychological or mental injury as a result of the accident that physically injured [Mr. I];
(b) Was not principally dependent upon [Ms. W] for financial support or care at the time of the accident; and
(c) Is not an “insured person” for the purposes of s. 3(1) of the Schedule.
49As a result, the applicant is not entitled to accident benefits under [Ms. W]’s insurance policy and the application is dismissed.
Released: July 18, 2023
Lindsay Lake
Vice-Chair