Licence Appeal Tribunal File Number: 22-009742/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:
Chelsia Clarke
Applicant
and
Coseco Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Daniel Strigberger, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Chelsia Clarke (“the Applicant”) was involved in an automobile accident on July 13, 2020, and sought benefits from Coseco Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Respondent concluded that the Applicant was not an insured person under the Schedule and denied her entitlement to benefits. The Applicant disagrees with this characterization and has applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
3The preliminary issue in dispute is:
i. Does the Applicant meet the definition of an “insured person” as defined under section 3(1) and section 3(7)(b) of the Schedule?
ISSUES
4The issues in dispute are:
i. Is the Applicant entitled to accident benefits under the Schedule?
ii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the Applicant does not meet the definition of an “insured person” as defined under section 3(1) and section 3(7) of the Schedule. Accordingly, she is not entitled to accident benefits under the Schedule.
BACKGROUND
6The Applicant was a passenger in an rideshare that was involved in an accident in British Columbia. She was 24 at the time of the accident and did not hold an auto insurance policy of her own. She claims entitlement to benefits pursuant to a policy held by her mother, whom she claims she is dependent on.
7The central issue in this matter is whether the Applicant is a dependent of her mother. If she is, she is entitled to claim benefits under her policy. If not, she is not entitled to benefits under the Schedule.
8The onus is on the Applicant to demonstrate that she is a dependent of her mother.
ANALYSIS
9Relevant to this hearing, section 3(1) of the Schedule describes an “insured person” as “a dependant of the named insured”. Section 3(7) states that a person is dependent on an individual if the person is principally dependent for financial support or care.
10The parties agree that the Applicant is not dependent on her mother for care. Accordingly, her path to coverage is through a finding that she is dependent on her mother for financial support.
11To assess whether the Applicant is dependent on her mother for financial support, I must first decide on the appropriate time frame to consider. The Applicant submits that I should consider her circumstances for the three-year period preceding to the accident. She submits that the precarious nature of the pandemic year of 2020, her ongoing mental health, and her ongoing education at the time of the accident warrant an analysis considering the three years preceding the accident. The Respondent submits that I should consider, at most, the one-year period preceding the accident, but more so a period of 5.5 months preceding the accident.
12The test for dependency is primarily guided by Miller v. Safeco Insurance Co. of America, 1984 CanLII 2019 (ON HCJ), 1984 48 O.R. (2d) 451 (“Miller”). When addressing the period of time to analyse a person’s dependence, Miller states the following:
“the true characterization of a dependent relationship at the time of the accident will usually require consideration of that relationship over a period of time, particularly in the case of young adults whose lives are in transition. The parameters of that period will depend on the facts of the case. The time frame chosen will also be influences by the nature of the relationship between the person providing the care and the person receiving the care. The analysis may also consider the degree of care provided to the individual at certain times as well as the individual’s need for care.”
13I find that the year preceding the accident is an appropriate period to evaluate the Applicant’s dependency for the following reasons.
Consideration for the Applicant’s academic status
14I find that the Applicant’s academic status does not warrant consideration of a three-year period preceding the accident.
15The Applicant has not demonstrated that she was enrolled in post secondary education. Central to the Applicant’s claims are that she was engaged in an early childhood education program at a local college and was in a period of transition from student life to a career. However, she has not provided any objective evidence demonstrating that she was enrolled in such program. Her evidence of enrollment in a post-secondary institution is limited to her own statements – provided in an interview dated November 9, 2020, and in an examination under oath (“EuO”) dated October 19, 2021, which contradict each other. In the interview, she stated that her employment in early 2020 was dependent on her school schedule. In the EuO, she stated that she wasn’t in her program at the time she was working. The Applicant has not provided any transcripts or other documents that independently corroborate her claims that she was engaged in a post-secondary education program.
16Considering the contradiction in her statements, and the lack of independent evidence to support the claim, I am unable to consider the Applicant’s academic status when assessing her dependency. The Applicant’s academic status, based on this evidence, is purely speculation and not reasonable for this exercise. Accordingly, I reject the Applicant’s request that her academic status warrants consideration for the three years preceding the accident.
Consideration for the Applicant’s mental health history
17I find that the Applicant’s mental health history does not warrant consideration of a three-year period preceding the accident.
18I find no evidence demonstrating that the Applicant suffers from ongoing mental health issues which impact her dependency. The Applicant submits evidence that confirms two episodes of mental health issues which warranted in-patient care on September 1, 2017 and September 15, 2018. However, these instances pre-date the accident by nearly two years. Moreover, there is no evidence before me demonstrating that the Applicant had ongoing mental health issues, or that the instances in 2017 and 2018 troubled her at a time immediately preceding the accident, and thereafter.
19Accordingly, I find that the Applicant’s mental health status does not warrant consideration of a three-year period preceding the accident.
Consideration for the pandemic year of 2020
20I find that the covid-19 pandemic does not warrant consideration for a three-year period preceding the accident.
21Indeed, the pandemic brought about uncertainty, but it ultimately provided greater financial stability for the Applicant. For the period from January 27, 2020 to March 27, 2020, during her tenure as an on-call supply early childhood assistant, the Applicant earned, at most, $3,210.48 in gross employment. This amounts to a gross weekly income that is less than the Canadian Emergency Response Benefit (“CERB”) payment of $500.00 per week that the Applicant was receiving at the time of the accident. For the year of 2019, the Applicant reported total income in the amount of $16,247.00, or $312.44 per week. This too is less than the $500.00 weekly CERB the Applicant received.
22I find that CERB must be accounted for when assessing the Applicant’s dependence. Indeed, CERB is not considered income from employment, but it does not mean that it cannot be considered when assessing financial dependence. The Schedule is silent on the issue, and caselaw does not prohibit consideration for other forms of income. From a practical perspective, consideration for all forms of income should be made because financial dependence is not measured solely by income from employment or self-employment. Indeed, many people support themselves be means other than income from employment or self-employment, such as social assistance or on capital gains. Accordingly, I find that it would be an error to limit the scope of this assessment to include income from employment or self-employment and not a benefit like CERB.
Market basket measure
23I find that, when applying the 12-month period of analysis to the Market Basket Measure (the “MBM”), the Applicant is not principally dependent on her mother for financial support.
24The parties agree that the MBM is the appropriate means to assess the Applicant’s financial dependency. The Applicant must demonstrate that she meets no more than 50% of her financial needs. The MBM pegs the annual cost of needs for a person in the Applicant’s region to be $24,864.00 per year, or $2,072.00 per month.
25I find that the Applicant’s sources of income for the year prior to the accident to total approximately $15,291.00, or $1,274.25 per month. This is based on the income reported from the Applicant’s employment during the period from July 13, 2019 to December 31, 2019, her employment during the period from January 27, 2020 to March 27, 2020, and her CERB earnings from March 15, 2020 to July 13, 2020 – the date of the accident. I excluded $3,793.00 from the calculation because it appears to be from social assistance payments which pre-date the 12-month period preceding the accident. With sources of income in the amount of $1,274.75 per month, the Applicant exceeds 50% of her financial needs of $2,072 per month. Accordingly, I find that the Applicant is not dependent on her mother for financial care.
26I find that the Applicant’s additional costs in the amount of $4,609.88 for items such as tuition and textbooks, should be excluded from the MBM analysis. The purpose of the MBM is to provide an estimate of a modest, basic standard of living for a region. Adding items to the MBM rate augments the analysis and has the affect of allowing the Applicant to pick and chose an analysis that best suits her. Further, the Applicant has not substantiated the expenses. As found earlier, there is no objective evidence demonstrating that the Applicant was enrolled in a post-secondary program or incurred the associated costs such as textbooks.
27Even if I were to accept that the additional expenses should be added to the MBM, the Applicant’s finances would continue to account for more than 50% of her financial needs. Adding the additional $4,609.88 in expenses to the MBM of $24,864.00 gives a total of $29,473.88, or $2,456.16 per month. The Applicant’s average monthly income over the 12-month period is $1,274.25, which remains more than 50% of the Applicant’s financial needs.
28Having found that the Applicant meets more than 50% of her financial needs, it follows that I find that the Applicant is not principally dependent on her mother for financial support.
Other commentary
29Notwithstanding the mathematics conducted above, I must note that the Applicant provided no evidence demonstrating that she is financially supported by her mother. She has provided no bank statements or other evidence of any transfer of funds to the Applicant from her mother. To this end, it is nearly impossible to conclude on a balance of probabilities that someone is financially supported by their mother without any evidence demonstrating financial support. There are many possible explanations for how the Applicant covered the shortfall, and the Tribunal cannot assume that the Applicant’s mother is liable for that shortfall.
Entitlement to accident benefits and interest
30Having concluded that the Applicant not a dependent as defined under section 3(1) of the Schedule, it follows that she is not entitled to accident benefits, nor interest.
CONCLUSION AND ORDER
31The Applicant is not dependent upon her mother for financial care thus, she is not an insured person as defined under section 3(1) of the Schedule.
32The Applicant is not entitled to accident benefits, nor interest.
33The Application is dismissed.
Released: December 2, 2024
Brian Norris
Adjudicator