Hamad v. Security National Insurance Company, 2025 CanLII 1829

Hamad v. Security National Insurance Company, 2025 CanLII 1829

Citation: Hamad v. Security National Insurance Company, 2025 ONLAT 24-002624/AABS - PI

Licence Appeal Tribunal File Number: 24-002624/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:

Layla Abdel Hamad

Applicant

and

Security National Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Mohamed Elbassiouni, Counsel

For the Respondent: Matthew Samuels, Counsel

HEARD: In Writing

OVERVIEW

1Layla Abdel Hamad, the applicant, is the mother of an individual involved in an automobile accident on August 2, 2021, and 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The issue in dispute is:

i. Is the applicant an “insured person” as defined in section 3(1) of the Schedule?

RESULT

3I find that the applicant is not an “insured person” for the purposes of s. 3(1) of the Schedule.

PROCEDURAL ISSUES

4The respondent submitted a Notice of Motion on September 17, 2024 seeking to have the Tribunal strike the applicant’s sur-reply related to the preliminary issue hearing.

5The respondent submits that the applicant adduced new evidence in her sur-reply and has therefore contravened the Tribunal’s rules in relation to the inclusion of evidence at a hearing. The respondent also submits that sur-reply submissions should only be provided in limited or exceptional circumstances, and that they are not intended to be an additional opportunity for parties to bolster their case or supplement previous submissions. According to the respondent, that is what the applicant has done by arguing that she has received the consent of the impacted parties to be able to rely on the priority EUO transcripts of the applicant, the named insured, and the spouse of the named insured. The respondent argues that the applicant did not request that consent until September 11 and 13, 2024, which is after receipt of the respondent’s reply submissions.

6The applicant submits that all evidence has been properly put before the Tribunal, and that she has not adduced any new evidence in her sur-reply. The applicant also maintains that the respondent had an opportunity to review and respond to the applicant’s evidence in its reply submissions served on September 10, 2024, and argues that consent with respect to the EUOs was obtained on August 30, 2024. According to the applicant, that was the same day the EUO transcripts were served, and the respondent did not raise any objections to the use of the EUO transcripts upon receiving them. The respondent also had ten days after receiving them to review and provide comments in its reply submissions.

7The respondent’s motion is dismissed and the applicant’s sur-reply materials have been considered. On July 25, 2024, the Tribunal issued a case conference report and order (“CCRO”) allowing the applicant to file sur-reply materials and I find that the sur-reply materials are in compliance with that Order. I find that the applicant has not introduced new evidence, but rather has provided submissions with respect to the respondent’s reply materials which raise the issue of compliance with the deemed undertaking rule and the admissibility of the EUOs related to the priority dispute.

8I have addressed the admissibility of the EUOs related to the priority dispute and the applicability of the deemed undertaking rule below.

ANALYSIS

The Law

9Section 2(4) of the Schedule provides that benefits are payable to “insured persons”.

10The definition of an “insured person” in s. 3(1)(a)(ii) of the Schedule includes a dependent of the named insured, who was not involved in an accident, but who suffers psychological or mental injuries as a result of an accident that resulted in a physical injury to their child.

11Section 3(7)(b) further states that a person is a dependent of an individual if the person is principally dependent for financial support or care on the individual or individual’s spouse.

12Both parties agree that “dependency” is assessed according to the following four criteria, citing the Ontario Court of Appeal decision Miller v. Safeco Insurance Co. of America, (1984) CanLII 2019 (ON SC), affirmed 1985 CanLII 2022 (ON CA), and State Farm v. Bunyan, 2013 ONSC 6670:

i. Amount of dependency;

ii. Duration of dependency;

iii. Financial or other needs of the alleged dependent; and

iv. The ability of the alleged dependent to be self-supporting.

13Also applicable 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.”

Background and Parties’ Positions

14The applicant submits that she currently resides at Cartmer Way in Milton, Ontario with her five children, and that she was living there at the time of her son’s accident.

15The applicant relies on her examination under oath (“EUO”) dated April 5, 2022, the EUO of her brother dated May 24, 2023, who is the spouse of the named insured, and the EUO of the named insured dated May 24, 2023. The applicant submits that the EUOs confirm that she has a very close relationship with the named insured and her spouse, she receives monthly financial support from the named insured and her spouse, the spouse of the named insured spent time with the applicant’s son on a daily basis and gave him a few hundred dollars per month for items he needs. The spouse of the named insured also bought the applicant furniture for her residence, helped with buying groceries, and bought the applicant’s daughter a laptop upon her acceptance into university. The applicant also submits that the EUO from the named insured confirms that she and her spouse assist the applicant paying her monthly lease, her spouse acted as a father figure to the applicant’s children, she would take the applicant and her children shopping and on trips to Niagara Falls and Montreal.

16The applicant argues that she has provided enough evidence to support a nexus between she and the named insured, including unredacted bank statements, a lease agreement, and undergoing EUOs. According to the applicant, an email dated April 4, 2024 from the applicant’s representative to the respondent confirms that the e-transfers listed on the applicant’s bank records are from the spouse of the named insured. The applicant submits that the EUO testimony is consistent with her bank records.

17The applicant also argues that income tax records that were only received on September 5, 2024 have been included as evidence. In addition, the applicant submits that the monthly child benefits she received were for her entire family and should not be considered income of the applicant alone. While most of her monthly expenses came from her bank account, some, such as her monthly lease that was paid in cash to her landlord, did not.

18The applicant submits that employing the “mathematical approach” will show that the applicant’s monthly expenses will exceed $7,975.31, as the respondent has alleged. This will also demonstrate that the applicant received more from the spouse of the named insured than what she received from social assistance. The applicant proposes that whether she is a “dependent” must be analyzed holistically, and not by simply adding expenses.

19The applicant argues that by employing a “big picture” approach, it is clear that she has never been employed since coming to Canada in 2015, she has been the primary caregiver to five children, and she is a single mother who has been receiving financial assistance from the spouse of the named insured since coming to Canada. The EUO testimony also confirms that the spouse of the named insured was a member of the applicant’s household most of the time, and the named insured was also residing with the applicant before the accident per the lease agreement, which lists her as one of the tenants. In addition, the applicant’s EUO testimony demonstrates that the named insured and her children resided with the applicant before the accident, and that she depended on the spouse of the named insured for emotional care.

20The respondent submits that the applicant was not involved in the accident, nor did she witness its occurrence. The applicant submitted an application by an injured person on February 24, 2024 in relation to her son’s involvement in the accident, but she did not attend the scene of the accident. According to the respondent, the applicant has not proven on a balance of probabilities that she is principally dependent on the named insured or her spouse.

21The respondent submits that the applicant first submitted an application for accident benefits on November 15, 2021, but it was later withdrawn. The respondent had requested details to substantiate her dependency claims related to the named insured on December 20, 2021, May 10, 2022, June 6, 2022, September 15, 2022 which were not provided. These documents were again requested on August 11, 2023, September 7, 2023, October 10, 2023, November 6, 2023, and December 11, 2023. The respondent argues that it specifically requested copies of the applicant’s income tax returns and notices of assessment for 2019 and 2020, bank statements for 1 year prior to the accident, and a copy of the rent agreement for her current residence.

22The respondent argues further that the applicant’s bank records do not include any source/sender identifying information for the e-transfers received, thereby making it impossible to make a determination whether the e-transfers were received from the named insured or her spouse. The respondent also argues that the Tribunal previously ordered the applicant’s bank account information provide “source/sender identifying information and account information for any and all e-transfers received”. To date, however, the applicant has not complied with the Tribunal’s order.

23The respondent submits that the majority of the applicant’s income comes from social assistance/government payments. In the 12 months prior to the accident, the applicant’s average monthly expenses were approximately $5,475.31, and she received an average of $4,153.43 solely from government assistance. The respondent argues that these amounts alone surpass the 50%+1 threshold and do no show that the majority of the applicant’s financial needs are being met by the named insured or her spouse.

24Although a lease agreement for a residence on Cartmer Way in Milton, Ontario in the amount of $2,550.00 per month, lists the named insured and the applicant as tenants, the respondent submits that the named insured does not reside at the address, and never has. The named insured’s address at the time of the accident was Hatt Court.

25The respondent argues further that even if the applicant’s average monthly expenses as shown in her bank records for the year prior to the accident do not include the $2,550.00 lease amount, the amount of the applicant’s average monthly expenses in the year prior to the accident could be $7,975.31, but given her average monthly income of $4,153.43, the applicant’s monthly income would still surpass the 50%+1 threshold related to her expenses.

26The respondent requests that the Tribunal refrain from assessing dependency using a “big picture” approach based on the applicant not meeting her obligations to provide the requisite information to assess dependency where there is insufficient evidence to apply a 50%+1 analysis.

Admissibility of EUO transcripts

27Both parties have argued about the admissibility of the EUO transcripts of the applicant dated April 5, 2022, the spouse of the named insured dated May 24, 2023, and the named insured dated May 24, 2023, that were gathered in the priority dispute.

28The respondent submits that the deemed undertaking rule applies, which prohibits the applicant from making use of materials gathered in the context of a priority dispute, for the adjudication of an accident benefits matter. The respondent relies on the Divisional Court’s decision in The Personal Insurance Company v. Jia, 2020 ONSC 6361 which ruled on the deemed undertaking rule as it applies to documents before the Tribunal. The respondent argues that in that case the respondent’s counsel successfully argued that the insurer was not permitted to use evidence compelled in the priority dispute, and the filing of the priority evidence was a breach of the applicable statutory scheme. Specifically, the Divisional Court wrote:

“requirements set out in s. 33 of the SABS Schedule cannot be circumvented by reliance on a transcript obtained during a priority dispute. Otherwise, the procedural protections afforded to an insured in the SABS Schedule would be frustrated…The Vice-Chair found that the specific protections provided in the SABS Schedule cannot be avoided by the general discretion granted to an Adjudicator under s. 15 of the SPPA. Otherwise, the protections enacted in s. 33 of the SABS would be largely illusory.”

29The respondent argues that it has not provided its consent for evidence from the priority dispute to be admitted in this accident benefits dispute, and that the EUO transcripts of the named insured and her spouse were not served until August 30, 2024, which was the day after the respondent’s initial submissions were delivered. The respondent also argues that it has had no ability to examine the applicant in relation to her priority dispute EUO testimony, and that it has been prejudiced as a result.

30The applicant submits that the respondent has misinterpreted and misapplied the implied undertaking rule, and that the EUO transcripts have been admitted into evidence properly. The applicant also submits that the only party that can invoke the implied undertaking rule is the named insured and not the respondent.

31The applicant argues that the respondent has misinterpreted the Jia decision. The Court found in Jia that the use of the transcripts was improper because the party that provided the evidence did not consent to the disclosure of same. In this case, however, the party that underwent the EUO provided consent as did the Motor Vehicle Accident Claims Fund for the use of the transcripts.

32I am persuaded by the applicant’s submissions and have admitted the EUOs for consideration. I agree that the circumstances in this case differ from Jia, and the exception to the deemed undertaking rule, consent, has been met. In considering the EUOs, however, I find that while they provide contextual narrative, concrete evidence that would satisfy the applicant’s alleged dependency on the named insured or her spouse as set out in Miller and Allstate is still lacking.

33For example, the EUO from the applicant reflects that her address at time of the accident was Cartmer Way. She testified that she had been living at that address along with her five children since at least 2020. The applicant testified that her brother, the spouse of the named insured, was a member of her household and would stay at Cartmer two to three nights per week as would the named insured and their three children. The applicant also testified that the primary residence of the named insured and her spouse was elsewhere in Milton.

34The applicant’s EUO reflects that she has not worked since coming to Canada in 2015 and has had no other income besides government assistance that included Ontario Works and child assistance, which she testified amounted to approximately $3,200.00 per month, in the twelve months leading up to the accident. According to the applicant, the spouse of the named insured would help her financially, giving her cash amounts each month averaging $2,000.00 to help with lease payments and items for her children. She testified that there was no electronic record of that financial support, and that her average monthly expenses in the year leading up to the accident were approximately $5,500.00.

35The EUO of the spouse of the named insured, Mohamed Abeldalhamad, also confirms that the applicant was living with her children at Cartmer Way leading up to the accident, and that the spouse of the named insured was like a father figure to the applicant’s children, especially her son. The spouse of the named insured testified that he would stay with the applicant and her children one or two nights per week to help because she was a single mother, and that he helped the applicant financially by giving her cash amounts to assist with her bills, lease payments, and family expenses. The spouse of the named insured could only estimate, however, that this amounted to $1,500.00 to $2,000.00 per month, and that he and the named insured would give the applicant and her children small amounts of money when something was needed, like a pair of boots.

36Finally, the EUO testimony of the named insured confirms that she was listed on the lease agreement for Cartmer Way so that the applicant could get a place to live with her family. According to the named insured, in the year leading up to the accident her three children would often go to Cartmer Way during the day so that the applicant could look after them while the named insured was working. The named insured also confirmed that any financial assistance given to the applicant was by way of cash and there was no paper trail to confirm any amounts. The named insured estimated that she and her spouse were giving the applicant around $1,500.00 each month for her lease in the year leading up to the accident in addition to the named insured personally giving the applicant $200.00 per month for groceries and incidentals. According to the named insured’s testimony, no bills for Cartmer Way were in the named insured’s name or jointly named with the applicant.

The applicant has not established that she was principally dependent on the named insured or her spouse

37I find that when considering Miller and Allstate and analyzing a 2-month period holistically, the evidence does not show that the applicant was principally dependent on the named insured or her spouse for financial support or care.

38Though the applicant submits that a letter dated April 4, 2024 confirms that the e-transfers listed in the applicant’s bank statements are from the spouse of the named insured, I agree with the respondent that no corroborating documentary evidence, apart from the EUO testimony, has been provided that would confirm the applicant’s submission. The applicant has not provided confirmation from the bank of the source or sender information, or provided e-transfer emails between the named insured or her spouse and the applicant that would corroborate the EUO testimony. As a result, I am not persuaded by the applicant’s submission.

39Even if I accept the evidence contained in the EUOs at face value, I find that the applicant has not met her onus of establishing dependence on the named insured or her spouse. The reported financial support from the named insured and her spouse are approximations, and with some discrepancies, and the applicant’s bank statements neither confirm nor deny principal financial dependence on the named insured or her spouse.

40The applicant also submits that the EUO testimony shows that the named insured was residing with her per the lease agreement at Cartmer Way. While I accept that the named insured is listed with the applicant as a tenant on the lease agreement, the EUO testimony of the named insured reflects that she co-signed the lease application so that the applicant could get her own place to live with her five children, and not because she was or would be residing with the applicant. Both the named insured and her spouse testified that they might have stayed with the applicant and her family one or two nights per week along with their own three children in the year leading up to the accident, but I find that this does not establish the applicant’s principal dependence on them.

41I accept that the applicant, the named insured, and her spouse, who is the applicant’s brother, are close with each other, and as extended family they support one another. The applicant helps to look after the three children of the named insured while the named insured works, the named insured and her spouse help the applicant financially with her lease and incidentals for her children, and the spouse of the named insured provides male guidance for the applicant’s children in the absence of their father. I find, however, that this does not equate to the applicant’s principal dependence on the named insured or her spouse when considering a “big picture” approach.

42I have also assessed the applicant’s dependence using a mathematical approach based on her banking records. I agree that according to the applicant’s bank records, she received an average of $4,153.43 per month from government assistance, and her average monthly expenses were approximately $5,475.31 in the 12-month period leading up to the accident. These amounts are consistent with the applicant’s EUO testimony.

43If I accept the applicant’s submission that her lease payments were not reflected in her bank records, her average monthly expenses increase to $8,025.31. Again though, this is not consistent with her EUO testimony that her average monthly expenses were $5,500.00. According to the EUO testimony of the named insured and her spouse, they provided the applicant with $1,500.00 to $2,000.00 in addition to a few hundred dollars for groceries and incidentals for the children each month. Either way, I find that the applicant’s monthly government financial assistance surpasses the 50%+1 threshold related to her expenses, and that most of the applicant’s financial needs are not being met by the named insured or her spouse. As a result, I find that the applicant was not principally dependent on the named insured or her spouse for financial support or care.

ORDER

44The applicant has not established that she was a dependant of the named insured or her spouse at the time of the accident. The applicant is not an “insured person” for the purposes of s. 3(1) of the Schedule.

45The application is dismissed.