Naim v. Co-operators General Insurance Company, 2024 CanLII 123327

Citation: Naim v. Co-operators General Insurance Company, 2024 ONLAT 22-011775/AABS

Licence Appeal Tribunal File Number: 22-011775/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:

Elias Naim

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yianniko Kozoronis, Counsel

For the Respondent: Daniel Strigberger, Counsel

HEARD: By way of written submissions

OVERVIEW

1Elias Naim (“the Applicant”) was involved in an automobile accident on August 24, 2021, and sought benefits from Co-operators General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent initially accepted the Applicant’s claim for benefits, but later determined that he was not a dependent of his Aunt, whose policy he claims accident benefits coverage though. The Respondent then stopped funding benefits.

3The Applicant disputes the Respondent’s position on his dependence on his Aunt and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

4Is the Applicant a dependent of his Aunt for the purpose of being an “insured person” under section 3 of the Schedule?

ISSUES

5The substantive issues in dispute are:

i. Is the Applicant entitled to rehabilitation benefits in the amount of $65,496.75 for home modifications, proposed by Ari Shuster OT in a treatment plan dated June 3, 2022?

ii. Is the Applicant entitled to a medical benefit in the amount of $4,220.00 for psychological services, proposed by David Ross in a treatment plan dated July 28, 2022?

iii. Is the Applicant entitled to a medical benefit in the amount of $1,945.85 for occupational therapy services, proposed by Ari Shuster OT in a treatment plan dated August 12, 2022?

iv. Is the Applicant entitled to a medical benefit in the amount of $1,917.60 for occupational therapy services, proposed by Ari Shuster OT in a treatment plan dated August 17, 2022?

v. Is the Applicant entitled to a medical benefit in the amount of $2,120.00 for physiotherapy services, proposed by Markham Lymphatic Centre in a treatment plan dated August 18, 2022?

vi. Is the Applicant entitled to a medical benefit in the amount of $4,220.00 for psychological services, proposed by David Ross in a treatment plan dated September 19, 2022?

vii. Is the Applicant entitled to a medical benefit in the amount of $7,047.53 for physiotherapy services, proposed by Neurocore Physiotherapy in a treatment plan dated November 22, 2022?

viii. Is the Applicant entitled to a medical benefit in the amount of $7,087.43 for case management services, proposed by Ari Shuster OT in a treatment plan dated November 30, 2022?

ix. Is the Applicant entitled to a medical benefit in the amount of $4,465.00 for psychological services, proposed by David Ross in a treatment plan dated March 2, 2023?

x. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

xi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

6I find that the Applicant is not a dependent of his Aunt. Accordingly, he is not entitled to accident benefits from the Respondent.

BACKGROUND

7The Applicant was a passenger of a vehicle which was involved in a single-vehicle accident. The sedan he was a passenger in hydroplaned in a sudden rainstorm, causing it to flip over onto the driver’s side. The Applicant sustained a fractured vertebrate, and other ongoing injuries, as a result of the accident.

8The Applicant claimed entitlement to accident benefits from the Respondent, under the policy of his Aunt, whom he lived with at the time of the accident, together with his grandparents, who own the home. The Applicant claimed entitlement under his Aunt’s policy as a dependent of hers.

9The onus is on the Applicant to demonstrate that he is a dependent of his Aunt. If he establishes that he is a dependent of his Aunt, he remains entitled to keep claiming benefits. If he is unable to establish dependency, the Respondent is not liable to pay for any further benefits claimed by the Applicant.

ANALYSIS

10Relevant 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.

11The parties agree that the Applicant was not dependent on his Aunt for care at the time of the accident. Accordingly, his path to coverage is through a finding that he is dependent on his Aunt for financial support.

12To assess whether the Applicant is dependent on his Aunt for financial support, the parties agree that I should consider the Applicant’s circumstances for the one-year period preceding the accident (“the relevant period”).

13The parties also agree that the Market Basket Measure (“MBM”) approach is the most appropriate way to assess the Applicant’s financial dependence on his Aunt.

14Of note, the Applicant resided in Waterloo for the period from August 2020 until the end of April 2021. His residence was a shared accommodation with a few other students. After April 2021, the Applicant moved into his grandparent’s home, which was also the residence of his Aunt – she moved back in with her parents at the onset of the pandemic in 2020.

Market basket measure (“the MBM”) and Low-Income Cut-off (“the LICO”)

15The parties agree that using the Market Basket Measure (“the MBM”) and Low-Income Cut-Off is the appropriate means to assess the Applicant’s financial dependency. They further agree that a 12-month period is appropriate when conducting the analysis on the Applicant’s dependency on his Aunt.

16The Applicant must demonstrate that he meets no more than 50% of his financial needs and is principally dependent on his Aunt for financial support.

17According to the Applicant, the MBM and LICO assesses his financial needs to be between $22,546.00 and $27,200.00 for the relevant period. He submits that his income for the relevant period totals $8,131.00, or about 29-36% of his overall needs, making him financially dependent on others. While the Respondent disagrees with the figures provided, the income submitted by the Applicant does not change the outcome once the common law is applied to his case.

The law

18The primary case dealing with financial dependency as it relates to being an insured person for the purposes of the Schedule is Miller v. Safeco insurance Company of America, 1984 (“Miller”). Miller outlined four factors to consider when assessing financial dependency, particularly when evaluating the dependence of a person who is transitioning from dependent to independent, such as the case here for the Applicant. The four factors are: the duration of dependency, the amount of dependency, the financial or other needs of the dependent, and the ability of the dependent to be self supporting.

19More applicable to the case at hand than Miller is the case of Allstate Insurance v ING Insurance et al, 2015 ONSC 4020 (“Allstate”). Allstate addressed situations of dependency where the person is dependent on multiple sources. In Allstate, the Court clarified that not only must a dependent be unable to provide for more than 50% of their own needs, but another person must provide more for the dependent than the dependent provides for themselves. It further states that “if several people each provide a small amount to assist the claimant, it is unlikely that (they) will be found to be dependent on any of the providers.” Allstate is binding on me and has direct application to the case at hand.

20I find that, when considering Allstate and applying the 12-month period of analysis, the Applicant is not principally dependent on his Aunt for financial support.

ADS report inaccurately reports the contribution from the Applicant’s Aunt

21I give very little weight to the ADS report regarding the Applicant’s Aunt’s contribution because it attributes financial contributions from the Applicant’s Aunt that were never accounted for.

22The ADS report attributes the Applicant’s cost of the household expenses to the his Aunt, which is inaccurate considering that his grandparents own the residence and there is no evidence to suggest that the Applicant’s Aunt was paying for any of the household expenses there. The ADS report estimates the household expenses based on Statistics Canada and divides the expenses evenly amongst the residents of the household, allocating $12,953.25 in expenses per person. The ADS report then assumes that the Applicant’s Aunt is responsible for the Applicant’s portion of the household expenses without any evidence demonstrating that his Aunt was responsible for expenses such as utilities, food, and transportation related to a home owned by the Applicant’s Grandparents. This error is fatal to the overall persuasiveness of the report because it causes an artificial increase in the support provided by the Applicant’s Aunt to him, in the amount of $12,042.25 for the relevant period.

23The receipts provided by the Applicant’s Aunt do not lead me to conclude that she is the provider for the Applicant’s household expenses. The receipts total approximately $4,000.00 and relate to various items that can be attributed to several members of the household. Few of those items are noted to be attributed solely to the Applicant, such as sheets and pillowcases. The receipts also include prescription expenses paid for by the Applicant’s Aunt, which are not included in the $12,042.25 allocation, but are included in a separate line in the ADS report. The end result here is that the contributions of the Applicant’s Aunt are inflated because some expenses are counted twice, and others are attributed to her when there is no evidence she was responsible for such expenses.

24In her examination under oath (“EuO”), the Applicant’s Aunt reported that she would give the Applicant approximately $600-$1000.00 per month, mostly via e-transfer. However, the Applicant’s bank statements contradict this and show e-transfers totalling no more than $2,800.00 from his Aunt for the relevant period. Using the balance of the figures in the ADS report, including consideration for contributions for prescriptions and vision care, as well as music supplies, the total financial contribution paid directly to the Applicant by his Aunt is $3,357.35. If I were to disregard the over-reporting discrepancy, and added the two sums together, the total amount contributed by the Applicant’s Aunt is $7,357.35, which remains below the Applicant’s income of $8,131.00.

25It follows then, that the Applicant is not financially dependent on his Aunt because he has not demonstrated that he meets no more than 50% of his financial needs and is principally dependent on her for financial support.

Substantive issues

26The Applicant’s entitlement to the substantial issues: the medical and rehabilitation benefits claimed, interest, and an award, is dependent on him being deemed a dependent of his Aunt. Having concluded that he is not a dependent of his Aunt, it follows that the Applicant is not an insured person and is not entitled to any accident benefits from the Respondent, particularly those listed under the substantive issues in dispute.

CONCLUSION AND ORDER

27The Applicant is not dependent on his Aunt. Accordingly, he is not entitled to claim benefits from the Respondent.

28The Application is dismissed.