Citation: Millar v. Aviva General Insurance 2024 ONLAT 23-004817/AABS-PI

Licence Appeal Tribunal File Number: 23-004817/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:

Richard Millar

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Sandra Zisckind, Counsel Allan Cocunato, Counsel Gjergji Laloshi, Counsel

For the Respondent: Kevin H. Griffiths, Counsel

HEARD: By way of written submissions

OVERVIEW

1Richard Millar’s (the “applicant”) twenty-two year old step-son Tyler was involved in a fatal motorcycle accident on October 22, 2015. The applicant claimed that he developed psychological impairments as a result of the accident, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by Aviva General Insurance, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2At the case conference held on November 16, 2023, the respondent raised two preliminary issues, to be heard prior to the hearing of the substantive issues in dispute.

PRELIMINARY ISSUES IN DISPUTE

3The preliminary issues to be decided at this hearing are:

i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in his application because the applicant does not qualify as an insured person under the Schedule?

ii. Is the applicant barred under s. 61 of the Schedule from pursuing his claim for accident benefits at the Tribunal due to an alleged entitlement to benefits under the Workplace Safety and Insurance Act, 1997?

RESULT

4I find that:

i. The applicant falls under the definition of an “insured person”; and

ii. The applicant is not barred from proceeding with his application pursuant to s. 61 of the Schedule.

BACKGROUND

5The applicant’s step-son Tyler tragically died in a motorcycle accident on October 22, 2015. The applicant had been employed as a paramedic for many years, but was unable to return to work after the accident. He reported that Tyler’s death had triggered intrusive memories of the trauma victims he had attended as a paramedic. The applicant initially went on bereavement leave after the accident, then short-term disability. In 2016 he applied for benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”). The applicant was diagnosed with post-traumatic stress disorder (“PTSD”), and began receiving WSIB benefits. He also applied for benefits under the Schedule, seeking treatment for psychological injuries he suffered secondary to the loss of Tyler. For years following the accident, the applicant received benefits from the respondent.

6However, in 2022 the applicant submitted a report to the respondent relating to a catastrophic determination. In this report, it was documented that Tyler was the applicant’s former spouse’s son. In all the previous documentation submitted to the respondent, Tyler was identified as being the applicant’s “son”. Upon receipt of the March 12, 2022 report, the respondent raised the issue that it had been operating under the mistaken belief that Tyler was the applicant’s son, rather than his step-son.

7The respondent maintains that the applicant does not fall within the definition of an “insured person” under the Schedule, as the applicant’s mental or psychological injury did not arise out of the physical injury to his “child”. The respondent takes the view that a step-child is not a “child” for the purposes of the Schedule, and as such the applicant is not entitled to accident benefits.

8The respondent further submits that the applicant’s WSIB file shows that the applicant applied for and received benefits under the WSIA for the same reason that he applied for accident benefits under the Schedule, namely, that Tyler’s death triggered past memories, emotion and trauma. The respondent argues that as the basis for each claim is identical, and the applicant is receiving benefits under the WSIA, he is not entitled to benefits under the Schedule.

ANALYSIS

Does the applicant fall within the definition of “insured person” under the Schedule?

9I find that the applicant falls under the definition of an “insured person” pursuant to s. 3(1) of the Schedule.

10The definition of “insured person” under s. 3(1) includes a person who was not involved in an accident, but suffers psychological or mental injury as a result of an accident that “results in a physical injury to his or her spouse, child, grandchild…”

11The term “child” is not defined in the Schedule, or in the Insurance Act, R.S.O. 1990, Chapter I.8. The applicant concedes that he could not locate any authority or jurisprudence which addressed whether a step-child was a “child” for the purpose of the Schedule, but maintains that the definition of a child should be read in an inclusive manner.

12The applicant argues that the fact that the Schedule and the Insurance Act define the term “spouse” but not “child” indicates that the legislature intended to have an exclusive definition of “spouse”, but had no such exclusive intention for the definition of “child”. He further submits that other statutes, such as the Family Law Act, R.S.O. 1990, define “child” as including a person “to whom a parent has a settled intention to treat as a child of his or her family”. The applicant argues that he clearly demonstrated such a settled intention towards Tyler. He was Tyler’s legal step-parent, married Tyler’s mother, raised Tyler since he was one-year old, and Tyler was still living at home at the time of his death.

13The applicant also refers to Black’s Law Dictionary, 2nd Edition, in the absence of a clear legislative intent, noting that the definition of “father” includes “a legal father, also a stepfather, an adoptive father…”. Finally, the applicant argues that the Supreme Court of Canada’s decision Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999], 1 SCR 242, recognises that once a person stands in place of a parent to a child, they take on the same rights and responsibilities as a biological parent. He submits that the well-established principle of in loco parentis recognizes that, irrespective of biological ties, once individuals take on the roles and responsibilities of a parent, they are to be accorded the same legal recognition as biological parents.

14The respondent disputes that the definition of “child” includes a step-child. It argues that “spouse” is defined in the Schedule and Insurance Act, as it does not have a universally agreed upon definition. In contrast, it submits that “child” has a clearly understood meaning that did not require a definition. It further argues that the fact that the legislature included the term “dependent” in the definition of “insured person”, shows that the legislature was willing to extend coverage to step-children, but only if the step-child was a dependent. In the present case, the respondent argues that Tyler was not a “dependent”.

15The respondent further argues that the fact that the Family Law Act defined “child” in such an inclusive manner, is evidence that the legislature wanted to include a person who would not otherwise be included in the definition. Similarly, it argues that the Supreme Court in Chartier dealt with the issue of whether a person who stands in the place of a parent can avoid paying child support, precisely because “child” and “step-child” have distinct meanings.

16I agree with the parties that since the term “child” is not defined in the Schedule or Insurance Act, it is appropriate to resort to statutory interpretation. The term “child” should be given a fair, large and liberal interpretation that best ensures the protection of the Schedule’s consumer protection goals. This approach accords with s. 64(1) of the Legislation Act, 2006, S.O. 2006, c.21.

17I am further guided by the reconsideration decision M.F.Z. v. Aviva Insurance Canada, 2017 CanLII 6362 (ONLAT) para 39, where Executive Chair Lamoureux, in interpreting a provision of the Schedule, reiterated the modern approach to statutory interpretation. This analysis involved a consideration of three factors: the language of the provision, the context in which the language is used, and the purpose of the legislation in which the language is found.

18Adopting this purposive and contextual approach, I do not agree with the respondent that “child” has a clearly or universally understood meaning. It does not cite specific authority for its position that “child” is commonly understood to exclude step-children. I am not persuaded that the legislature intended to restrict the definition of “child” in such a manner.

19I note the applicant’s submissions that other legislation, such as the Family Law Act, has adopted an inclusive definition of “child”. The respondent has not directed me to any comparable legislation where the definition of “child” excluded step-children. In the absence of authority or Tribunal jurisprudence on the issue, I find the definition contained in Black’s Law Dictionary to be assistive. Black’s defines a child as “a son or daughter considered in relation with the father or mother”. “Father” is defined as including, in law, “a putative as well as a legal father, also a stepfather…”.

20I further am cognizant of the fact that the Schedule is consumer protection legislation and as such must be read generously. When considered in this context, I find it unlikely that the legislature intended to limit the definition of “insured person” to exclude step-parents of children injured in accidents. Particularly in a case such as this, where the applicant was married to Tyler’s mother, was involved in Tyler’s life since he was one-year old, and Tyler was still living at home at the time of his death.

21As such, I find that the applicant falls within the definition of “insured person”.

The respondent is not barred from pursuing his claim by s. 61 of the Schedule

22Section 61(1) of the Schedule states that insurers are not required to pay accident benefits under the Schedule to those who are entitled to claim workers’ compensation benefits under the WSIA.

23The respondent submits that the applicant is not entitled to benefits under the Schedule, as he was approved for, and receives WSIA benefits for impairments stemming from the same identified reason. It argues that the WSIB file establishes that the applicant reported that he was previously asymptomatic, but that Tyler’s death had released all of the past memories and flashbacks from years of attending at calls where horrific injuries were sustained and family members had lost loved ones. As the basis for his claim under the WSIA and the Schedule is identical, and since he is entitled to benefits under the WSIA, the respondent submits that the applicant is not entitled to accident benefits.

24The applicant argues that the basis of his claims under the WSIA and the Schedule are not identical. He submits that the respondent has not met its onus to establish that for the purposes of s. 61(1), his entitlement to WSIA benefits is as a result of the accident. Rather, the WSIB file establishes that he is in receipt of WSIA benefits as a result of his trauma brought on by years of witnessing and responding to horrific injuries and deaths as a result of being a paramedic. In contrast, the basis for his claim for accident benefits is the psychological injuries, not just PTSD, which resulted from Tyler’s accident.

25The applicant further submits that he is not entitled to any WSIA benefits for impairments stemming from the accident, as s. 13(1) of the WSIA states that entitlement can only result from injuries “arising out of and in the course of the worker’s employment”. Finally, the applicant argues that the respondent is estopped from taking the position that he is now not entitled to accident benefits, as it has consistently acknowledged that he is entitled to benefits under both regimes, since 2016. In fact, the respondent reduced his income replacement benefits to account for his receipt of WSIB benefits. The respondent disputes the applicant’s position and argues that the Tribunal lacks the jurisdiction to grant the equitable remedy of estoppel under s. 131 of the Insurance Act.

26I find that the applicant is not precluded from pursuing his accident benefits claim pursuant to s. 61(1) of the Schedule. I agree with the applicant that the respondent bears the onus to prove that his claim for benefits under both the WSIA and the Schedule, stems from the same cause. However, the applicant has led sufficient evidence to establish a reasonable possibility that the basis for each of the claims is different.

27Firstly, the WSIB approved the applicant’s claim solely on the basis of his February 2, 2016 PTSD diagnosis, stemming from his work as a paramedic. However, from the evidence, it appears that the applicant’s accident benefits claim related to a broader range of psychological impairments, not just PTSD. In the report prepared by Dr. Lynn Lightfoot dated April 25, 2016 in connection with the applicant’s WSIB claim, Dr. Lightfoot diagnosed the applicant with a number of psychological impairments, including, PTSD, major depressive disorder, single episode, rule out adjustment disorder with anxiety and depression and bereavement. However, in the WSIB Eligibility Memo dated October 21, 2016, the applicant’s claim was noted to be permitted solely due to his diagnosis of PTSD.

28With respect to the applicant’ accident benefit’s claim, the applicant’s OCF-3 dated June 17, 2017 listed the applicant’s injuries as being PTSD, major depressive disorder and complex bereavement. The respondent’s s. 44 psychological assessment report dated November 5, 2018, also confirmed the PTSD related to the applicant’s years of service as a paramedic, but precipitated by the accident, together with major depressive disorder, single episode, rule out adjustment disorder with anxiety and depression, and bereavement. While the PTSD was linked to both the accident and the applicant’s traumatic memories as a paramedic, Dr. Sharma further noted that “the depressive symptoms and bereavement are a direct result of the index motor vehicle accident”.

29Further, the “date of injury” as identified in the WSIB Eligibility Memo was not the accident date of October 22, 2015, but February 2, 2016, the date of the applicant’s PTSD diagnosis. Although the respondent argues that these differing dates are “immaterial”, and that the applicant was clearly receiving WSIB benefits “because of the motor vehicle accident”, I disagree. The WSIB Eligibility Memo discusses the decision rationale in Section 5, and clearly explains why the February 2, 2016 date was selected. It states that “(t)he medical information…establishes that as of February 2nd, 2016, the PTSD was the main disabling condition…The medical information supports that the worker’s lost time from October 26th, 2015 until the PTSD diagnosis was related to the grieving period following the fatality of his son”.

30As such, I agree with the applicant that the basis of his claims for WSIB and accident benefits, appeared to differ in scope with potentially different reasons underlying the claims. A determination of the basis of the applicant’s claim for accident benefits is most appropriately to be considered at a full substantive hearing, rather than as a preliminary issue. I further note the parties’ arguments on equitable remedies and the respondent’s submissions on the Divisional Court decision Akinyimiede v. Economical, 2023 ONSC 5272 (Div Ct). Since the matter is proceeding to a substantive hearing, the applicant’s submissions relating to equitable remedies did not need to be addressed as part of the preliminary issue hearing. Rather, the issue of equitable remedies, in particular, the application of Akinyimiede, may similarly be considered as part of the substantive hearing.

ORDER

31The applicant falls under the definition of an “insured person” under s. 3(1) of the Schedule.

32The applicant is not barred from pursuing his claim pursuant to s. 61 of the Schedule. The matter shall proceed to a hearing of the substantive issues.