Licence Appeal Tribunal File Number: 22-003143/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:
Liana Thompson
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Corina Bachmann, Counsel
For the Respondent:
David Koots, Counsel
HEARD:
By written submissions
OVERVIEW
1Jeffrey Scott passed away as a result of an automobile accident that occurred on November 25, 2020. Ms. Thompson, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $25,000 in death benefits for the death of her spouse, Jeff Scott, submitted to the insurer on December 21, 2020?
ii. Is the applicant’s daughter, Allegra Thompson, entitled to $10,000 in death benefits for the death of her stepfather, Jeff Scott, submitted to the insurer on December 21, 2020?
iii. Is the applicant’s daughter, Geneva Thompson, entitled to $10,000 in death benefits for the death of her stepfather, Jeff Scott, submitted to the insurer on December 21, 2020?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3In submissions, the applicant withdrew the issue of the award listed as issue five in the Case Conference Report and Order.
RESULT
4The applicant is not entitled to a death benefit.
5The two daughters of the applicant are not entitled to a death benefit.
6The applicant is not entitled to interest.
ANALYSIS
7Section 26(2) of the Schedule states that an insurer shall provide a death benefit payment of $25,000.00 to the insured person’s spouse and $10,000.00 to each of the insured person’s dependents in respect of an insured person who dies as a result of an accident.
8The Schedule defines “spouse” as having the same meaning as in Part VI of the Insurance Act, R.S.O. 1990, c. I.8 (“Act”).
9Section 224(1) of the Act defines “spouse” as either of two persons who:
(a) are married to each other,
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act, or
(c) have lived together in a conjugal relationship outside marriage,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the parents of a child; (“conjoint”)
10The parties agree that the applicable definition of spouse in this case is at section 224(1)(c)(i), namely, that either of two persons who have lived together in a conjugal relationship outside marriage continuously for a period of not less than three years.
11The applicant submitted no evidence to support her claim and relies solely on her written submissions.
12The respondent submitted a statement of the applicant which is purported to have been given to Linda Michalis, of Intact Insurance, during a telephone conversation that took place on September 29, 2021. The statement provides particulars on the relationship between the applicant and Mr. Scott. The signature line of the applicant and a witness are blank and undated. I give no weight to this document because there is no indication that the applicant reviewed this statement and confirmed its accuracy.
13As the parties have not filed any other evidence in this case, I rely on the below facts which are not disputed by either party.
14The applicant submits that she was in a monogamous relationship with Jeff Scott since October 2013 and that they became engaged on November 5, 2017. They entered into the relationship as two mature, financially independent people, each with their own residence.
15Both Mr. Scott and the applicant have children from other relationships. Each maintained their own household to not disrupt their children’s lives.
16They owned a rental property together as an investment.
17The applicant listed Mr. Scott as a beneficiary of the health plan at her work.
18They went on holidays together and presented themselves as a couple to their family, friends, and the community.
19According to the applicant, in the three years before the accident she and Mr. Scott spent an average of 6 out of 7 nights per week together. The respondent disputes this. Its understanding is that the couple spent three to five nights per week together. The parties do not agree on the amount of time the couple spent together. However, as explained below, this is not a decisive factor in assessing whether they are spouses within the meaning of the Act.
20The applicant submits that she meets the definition of spouse. She argues that the concept of a spouse under the Family Law Act, R.S.O. 1990, c. F.3 (FLA) has evolved over time and that living in the same residence is only one of several factors to consider. She points to Stephen v. Stawecki, 2005 CanLII 25118 (ON SC) where the Court of Appeal gave weight to the intermingling of a couple’s lives and the permanence of their relationship to conclude that they began living together before they “moved in.” In this case, the applicant and Mr. Scott never “moved in,” but they were in a long term, monogamous relationship and their lives were closely intertwined. She submits that under the FLA she and Mr. Scott were living together in a conjugal relationship, and therefore, are spouses.
21The applicant acknowledges that the caselaw previously supported a literal definition of spouse under the Act that required persons in a conjugal relationship to live under the same roof. According to the applicant, this approach was changed by the Superior Court in McGratten et al. v. Director Motor Vehicle Accident Claims Fund et al., 2023 ONSC 1995. At para 49, the court applied the more expansive FLA interpretation to a matter under the Act:
I find that living together in conjugal relationship must be interpreted as a unitary concept. Residing in the same dwelling is not a requirement to determine if two persons are living together in a conjugal relationship. I find that the factors that must be considered to meet the requirements of living together in a conjugal relationship are expansive. The court must take a holistic approach and review multiple considerations [. . . ].(emphasis added)
22In light of this decision, the applicant submits that she meets the definition of spouse under the Act and that she is entitled to a death benefit under the Schedule.
23The respondent submits that McGratten does not alter the narrow definition of spouse under the Act for accident benefit claims. In fact, a clear distinction is made between accident benefits and the life insurance benefits that were sought by the litigants in McGratten. Consequently, the respondent argues that the applicant does not meet the definition of a spouse under the Act.
24I agree with the respondent. The Superior Court has determined that the differing policy objectives of the FLA and the Insurance Act require different meanings for the term spouse. For example, at para. 62 of Intact v. Dominion and Wawanesa, 2020 ONSC 7982 the Court stated:
The Catherwood v. Young Estate (1995), 27 O.R. (3d) 63, [1995] O.J. No. 3658, 1995 CanLII 7254 (Gen. Div.) decision cited by Morden A.C.J.O. sets out a detailed discussion of the differences between the family law definition of spouse and the Insurance Act definition of spouse. As a result of reviewing these decisions, it is clear that both the Superior Court and the Court of Appeal have determined that different policy considerations underlie each scheme and that a different reading of the definition is appropriate.
25This approach was reaffirmed in Royal & Sun Alliance v. Desjardins/Certas, 2018 ONSC 4284 at paragraph 16, where the Schedule’s need to provide automatic benefits to spouses at the time of the accident is different from the FLA scheme for court-ordered support where need is established. Again, the courts have determined that these two different objectives require two different interpretations for the meaning of spouse.
26McGratten does not veer away from this approach:
Section 29 of the FLA extends the definition of spouse and gives rights and obligations to a person fitting that definition to Parts III (support), Parts IV (domestic contracts), and Part V (dependants claims in tort). I point this out to emphasise that a similar approach appears to be applicable to the Insurance Act. There must be a distinction in the Insurance Act to the parts that deal with Automatic Benefits and the parts dealing with Family Protection and Dependency. (para 41)
27McGratten considered the definition of spouse in the Act and the OPCF 44R endorsement for Family Protection Coverage. The court found that the broader meaning of spouse was warranted because of similar policy objectives in the OPCF 44R endorsement and the FLA. The court did not apply this approach to accident benefits, and in fact, explicitly states that there is a clear distinction between the two types of benefits. Thus, McGratten does not make the broader FLA definition of spouse applicable to death benefits under the Schedule. For this reason, I find that s. 224(1)(c)(i) of the Act requires two people in a conjugal relationship to live together in the same dwelling for no less than three years in order to meet the definition of a spouse in regard to s. 26(2) of the Schedule.
28There is no dispute that the applicant and Mr. Scott maintained two separate households and never resided in the same dwelling. Consequently I find, only for the purpose of this assessment, that she is not the spouse of Mr. Scott and is not entitled to a death benefit under the Schedule.
29The applicant makes no submissions on her daughters’ entitlement to a death benefit. As such, I find that the applicant has not established, on a balance of probabilities, that her daughters are entitled to a death benefit.
30As no benefits are owing, I find that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
31The applicant is not entitled to a death benefit.
32The two daughters of the applicant are not entitled to a death benefit.
33The applicant is not entitled to interest.
34This application is dismissed.
Released: May 23, 2024
__________________________
Harry Adamidis
Adjudicator