Licence Appeal Tribunal File Number: 23-000161/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:
[T.T] (A minor by their litigation guardian, [B.M])
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Kaitlyn MacDonell, Counsel
For the Respondent: Aida Davari, Counsel
For the Related Party, The Dominion of Canada General Insurance Company: Krista Groen, Counsel, in related Tribunal file numbers 23-000160/AABS and 23-000162/AABS
HEARD: By Way of Written Submissions
OVERVIEW
1[T.T] (“[T]”) passed away as a result of an automobile accident that occurred on May 15, 2018. [T]’s daughter, [T.T], the applicant, sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2There are four separate but related disputes at the Tribunal. The applicant’s sister is seeking death benefits from the respondent in Tribunal file number 23-000158/AABS. The applicant and her sister are also seeking death benefits from The Dominion of Canada General Insurance Company in Tribunal file numbers 23-000162/AABS and 23-000160/AABS, respectively. The Tribunal ordered on August 21, 2023, that the same adjudicator will adjudicate all of the related files.
ISSUES
3The issue in dispute is:
i. Is the applicant entitled to a death benefit pursuant to s. 26 of the Schedule, in the amount of $10,000.00 plus interest?
RESULT
4The applicant is not entitled to a death benefit or interest from the respondent.
PROCEDURAL ISSUES
Respondent’s motion to exclude the applicant’s reply submissions
5The respondent filed a motion requesting an order to strike the applicant’s reply submissions in their entirety from the hearing record. The respondent submits that the applicant’s reply submissions address, for the first time, that the respondent is raising a preliminary issue in their materials that was never properly before the Tribunal. It argues that the applicant is splitting her case by making factual and legal assertions that should have been made in her initial submissions.
6The respondent’s motion is denied.
7In its initial submissions, the respondent indicated its belief that [T] was not an insured under a policy issued by the respondent, and his children were accordingly not entitled to a death benefit. The applicant argued in reply that the respondent was raising a preliminary issue that was not properly before the Tribunal.
8Although the respondent argues that no new evidence is permitted as part of a reply, no new evidence was filed by the applicant. The only documents appended to the applicant’s reply submissions were the Case Conference Report and Order of August 21, 2023, which both parties relied on in their initial submissions, and a copy of a cheque for funeral benefits which was also included with the applicant’s initial submissions.
9The applicant has the burden of proof and I find that she would be prejudiced if her reply was excluded in its entirety.
10In any event, as I will address further below, I do not accept the applicant’s argument regarding the preliminary issue. Even if the respondent was deprived of its right to address what constitutes a preliminary issue, it has not been prejudiced as a result.
Applicant’s request for costs of the motion
11The applicant requests her costs for having to respond to the respondent’s motion in the amount of $1,000. She argues that the motion was unnecessary and was an attempt to provide a sur-reply when the respondent was not entitled to do so.
12The applicant’s request for costs is denied.
13Rule 19.1 of the Common Rules of Practice & Procedure provides that a party may make a request to the Tribunal for its costs where it believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
14The applicant has not convinced me that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith just by bringing its motion, which was within its right to do. Further, although I agree that the respondent made arguments outside the scope of its motion, the applicant also made submissions regarding the “preliminary issue” in her motion materials which was outside the scope of the motion. I find that it would not be appropriate to award costs against the respondent where the applicant has behaved in a similar manner.
Applicant’s submission that a preliminary issue is not properly before the Tribunal
15The applicant argues that the respondent has raised a preliminary issue in its submissions that was never properly before the Tribunal, namely whether [T] was an insured under a policy issued by the respondent. The applicant submits that the respondent should have brought a motion in advance of the hearing to add it as a preliminary issue. This would have allowed the parties to adduce evidence on the factors to be decided regarding whether [T] was an insured. The applicant submits that the most appropriate evidence in this regard would have come from [T]’s father, who was the name insured under the policy.
16The applicant also submits that the respondent’s motion is an attempt to provide a sur-reply and is an abuse of process. I agree that it is not appropriate for the respondent to try and address the substance of the applicant’s reply submissions in its materials for a motion to strike those submissions. In the same vein, it was not appropriate for the applicant to make submissions regarding the “preliminary issue” in her motion materials. In making my decision, I will not consider any submissions made by either party within their motion materials that relate to the substantive issue in dispute or whether the respondent raised a preliminary issue.
17I find that the applicant has failed to explain why this is a “preliminary issue” such that it is not properly before the Tribunal. The applicant has not directed me to any authority or any section of the Schedule or the Tribunal’s Common Rules of Practice & Procedure that specifies that this type of question, or any type of question, must be addressed separately as a “preliminary issue”.
18In addition, the applicant appears to have acknowledged in her initial submissions that [T]’s insurance status needed to be addressed. In her submissions, the applicant stated that [T] was an insured under Intact Policy Number 742557055 (issued to [T]’s father and stepmother) and included evidence of this in the form of a cheque provided by the respondent to [T]’s father for a funeral benefit. Further, s. 26 states that an insurer shall pay a death benefit in respect of an insured person who dies as a result of an accident. In quoting s. 26 in her initial submissions, the applicant bolded and underlined the words “an insured person”. The respondent’s argument is a defence to the applicant’s claim that [T] is an insured under the policy, and it is part of the analysis under s. 26. I find that it was not improper for the respondent to have raised an objection to the applicant’s position in that regard.
19Further, this is not a novel issue that was raised for the first time in the respondent’s submissions. On February 29, 2024, the respondent provided a letter to the applicant advising that, based on the evidence elicited during the cross-examination of the applicant’s mother, [B] Montague (“[B]”), on November 10, 2023, it was of the view that [T] would not be considered an insured person under the policy issued by the respondent, and accordingly the death benefit would not be payable. After reviewing the letter, the applicant knew the respondent’s position and could have anticipated the argument it would raise at this hearing. The applicant had an opportunity to obtain additional evidence or request an adjournment from the Tribunal if more time was necessary to do so.
20I accordingly find that the question of whether [T] was insured under the policy issued by the respondent is properly before me.
ANALYSIS
21For the reasons below, I find that the applicant has not met her onus in proving that [T] was an insured under the policy issued by the respondent. She is accordingly not entitled to a death benefit from the respondent.
22Section 26 of the Schedule states that an insurer shall pay a death benefit in respect of an insured person who dies as a result of an accident. The insurer shall pay $10,000.00 to each of the insured person’s dependents. The onus is on the applicant to prove, on a balance of probabilities, that she is entitled to the benefit.
23An “insured person” is defined in s. 3(1) of the Schedule as the named insured, any person specified in the policy as a driver of the insured automobile, and the spouse of the named insured and a dependant of the named insured or of his or her spouse.
24[T]’s father and stepmother were insured under Intact Policy Number 742557055 (the “policy”). [T] was not listed as an insured under the policy. The question before me is whether [T] was a dependent of his father or stepmother.
25Section 3(7) of the Schedule defines dependency as being principally dependent for financial support or care on the individual or the individual’s spouse. The Court of Appeal in Miller v. Safeco Insurance Company of Canada, 1985 CanLII 2022, outlined the following factors to be considered when assessing dependency: the duration of the dependency, the amount of the dependency, the financial or other needs of the alleged dependent, and the ability of the alleged dependent to be self-supporting.
26The applicant’s only submission and evidence in support of her assertion that [T] was an insured is that the respondent paid funeral benefits under the policy to [T]’s father as a result of his death, and that funeral benefits are only provided on behalf of someone considered to be an insured.
27The respondent submits that the funeral benefit was paid in error and was done prior to the respondent becoming aware of new information during [B]’s cross-examination on November 10, 2023. It submits that payments made unknowingly and in error do not amount to entitlement under the Schedule.
28The applicant has not provided me with any authority in support of the suggestion that a respondent is bound by decisions made in error or without a complete set of facts. The Schedule specifies that the determination to be made is whether [T] was a dependent, and not whether the respondent made a payment under the assumption that he was. I accordingly do not accept the applicant’s argument.
29During her cross-examination on November 10, 2023, [B] explained that in the year prior to the accident, she understood that [T] was working for his aunt, receiving Ontario Disability Support Program payments, was splitting his time between three different residences, and was paying rent to his father and stepmother. In her submissions, the applicant did not point to anything within the cross-examination transcript as evidence of [T]’s dependency. If anything, [B]’s evidence indicates to me that [T] was not principally dependent on his father or stepmother, at least with respect to financial support. The applicant did not provide any other evidence to suggest that [T] was principally dependent on his father or stepmother for financial support or care.
30Based on the evidence before me, I am not persuaded that [T] was a dependent of his father or stepmother such that he would be considered an insured under the policy. I accordingly find that the applicant has failed to prove, on a balance of probabilities, that she is entitled to a death benefit from the respondent.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is payable, interest is not applicable.
ORDER
32The applicant is not entitled to a death benefit or interest from the respondent.
Released: December 18, 2024
Rachel Levitsky Adjudicator