Stephane Okenge v. Certas Home and Auto Insurance Company, 2025 CanLII 35932

Licence Appeal Tribunal

Citation: Okenge v. Certas Home and Auto Insurance Company, 2025 ONLAT 23-008696/AABS

Licence Appeal Tribunal File Number: 23-008696/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:

Stephane Okenge

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Brenda Hollingsworth, Counsel

For the Respondent:

Gerald George, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Stephane Okenge, the applicant, was involved in an automobile accident on October 23, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant sought coverage as a dependent under his sister’s insurance policy with the respondent, Certas Home and Auto Insurance Company. The applicant was denied benefits by the respondent, and he applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

3The preliminary issue in dispute is:

i. Is the applicant an insured person under the policy issued by the respondent to the applicant’s sister, Gisele Okenge (“sister”)?

4No substantive issues were listed in the Case Conference Report and Order released February 3, 2024.

RESULT

5I find that the applicant is an insured person under the policy issued by the respondent to the applicant’s sister.

ANALYSIS

Background

6In June 2017, at the age of 14, the applicant moved away from his parents in Africa to Ottawa. His parents were divorced at the time and his father was not very involved in his life. His mother remained living and working in Africa. In Ottawa, the applicant lived with his older sister in her apartment until the end of August 2017.

7In September 2017, the applicant began attending high school at Canada Topflight Academy, which is an elite basketball program in Ottawa. The program required students to stay with a billet family during the weekdays and at home with their family on the weekends. While attending Topflight Academy, the applicant submits that he spent weekends and holidays at home with his sister. He also would have dinner and stay overnight at his sister’s apartment on many weeknights when he had basketball practice. The applicant stated that at the end of the school year, he spent his summers living with his sister. The applicant attended the program for the school years of 2017/2018 and 2018/2019.

8In August 2019, when the applicant was 17 years old, he received a basketball scholarship to attend Casady High School in Oklahoma City, as an international prep school student. While attending Casady High School, the applicant billeted with two different families from August 2019 to June 2022. During the 2020/2021 and 2021/2022 school years, the applicant submits that he returned home to his sister’s apartment whenever he had a break from training or school, including holidays. He would also return home to his sister’s apartment for the summer.

9In December 2019, the applicant returned to his sister’s apartment in Ottawa for the holiday season. On April 27, 2020, the applicant returned to Ottawa and stayed with his sister due to the COVID-19 pandemic. On May 12, 2020, the applicant went to British Columbia to plant trees with his older brother. In July or August 2020, he returned to Ottawa to live with his sister before returning to school. In December 2020, the applicant did not return to Ottawa for the holiday season. In August 2021, he returned to Ottawa to live with his sister for two to three weeks to have an MRI before returning to school.

10In June 2022, the applicant graduated from high school, and he returned to his sister’s apartment for two weeks on June 24, 2022. On July 9, 2022, he returned to Oklahoma for shoulder surgery. He stayed with his billet family while he recovered.

11In August 2022, the applicant attended York University in Nebraska on a basketball scholarship. He lived in student residence on his university campus for about two months until the accident on October 23, 2022.

12On October 23, 2022, the applicant was involved in the subject accident. He suffered a severe spinal cord injury, resulting in tetraplegia.

13On December 12, 2022, the applicant sent a completed Application for Accident Benefits to the respondent, claiming entitlement to accident benefits under his sister’s insurance policy with the respondent. On September 22, 2023, the applicant received a letter from the respondent stating that he does not qualify as an “insured person” under the policy. The reason for the denial given by the respondent was:

After careful consideration of the testimony and information provided, we have concluded that, at the time of the accident you were not principally dependent for financial support or care on your older sister Gisele Okenge. Rather, you were principally dependent for financial support or care on your mother, Trisha Okenge who, at the time of the accident, lived in Africa and did not have access to automobile insurance coverage under any policy in the Province of Ontario.

The Law

14Section 2(4) of the Schedule provides that benefits are payable to “insured persons”.

15The definition of an “insured person” in s. 3(1)(a)(i) of the Schedule includes a dependent of the named insured.

16Section 3(7)(b) of the Schedule 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.

17The case law interpreting this phrase has developed some guidelines for making the determination if someone is “principally dependent for financial support or care”. The parties have referenced this case law in their submissions, as follows.

18In determining whether the applicant is “principally dependent for care” on an insured person, we must consider the legislative intent of the Schedule. It is well-established that the Schedule is remedial in nature and its provisions are to be interpreted broadly in favour of the insured. This is consistent with the Supreme Court of Canada’s determination in Smith v. Co-Operators General Insurance Company, 2022 SCC 30 (“Smith”), that the Schedule is remedial in nature, and it is consumer protection legislation. As such, it ought to be read, interpreted, and applied in this way.

19The Court of Appeal for Ontario has accepted in Oxford Mutual Insurance Company v. Co-Operators General Insurance Company, 2006 CanLII 37956 (ON CA) (“Oxford”), as an uncontested legal principle, that “principally” means “chiefly”, “mainly”, or “for the most part”. The Court also noted that “care” dependency could not be determined with the same mathematical precision as “financial” dependency.

20Both parties agree that “dependency” is assessed according to the following four criteria, citing Miller v. Safeco Insurance Co. of America, 1984 CanLII 2019 (ON SC), affirmed 1985 CanLII 2022 (ON CA) (“Miller”):

i. Amount of dependency

ii. Duration of dependency

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

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

21The Court of Appeal mandates that the time frame that should be used to examine the principal dependency for care is a “big picture” approach. In the context of young adults, like the applicant, the decision in Oxford, states the following:

…the true characterization of a dependent relationship at the time of the accident will usually require consideration of that relationship over a period of time, particularly in the case of young adults whose lives are in transition. The parameters of that period will depend on the facts of the case. The time frame chosen will also be influenced by the nature of the relationship between the person providing the care and the person receiving the care. The analysis may also consider the degree of care provided to the individual at certain times as well as the individual’s need for care.

Justice Lang further provided that:

In my view, Mr. William’s status as a young adult and his surety relationship with his mother were only factors to consider in determining whether he was dependent on her for his care. Other relevant factors include consideration of the provision of social, emotional and physical care.

22With respect to students who reside away from home during the school year, the Superior Court in Gardiner v. MacDonald Estate, 2015 ONSC 227, (“Gardiner”) (citing the Court of Appeal’s decision in Harris (Litigation Guardian of) v. Pilot Insurance Company, 1997 CanLII 4436 (ON CA), 34 O.R. (3d) 633 (C.A.) (“Harris”)) held that permanent residence remains at home with their family:

Where a student takes up a secondary residence to attend university, he or she is still considered to be a resident of his or her parent’s home for insurance purposes.

A university residence is not considered to be the permanent home of the student where they have an established pattern of living away from their parent’s house during the school year but treat their parent’s house as a home base during the holidays and summers. A student should not be considered to have moved anywhere permanent on his or her own when he or she returns to the parent’s home at the end of each school year.

23When making a finding of “principally dependent for care”, the ability of the individual to be self-supporting, the degree of care provided, and the individual’s need for care must be considered. The decision in Co-Operators General Insurance Co. v. TD Home & Auto Insurance Co., 2014 ONSC 1604, (“Co-Operators v. TD”), states that:

A determination of “principally dependent for care” requires a finding that an individual received more care from one on whom he or she depends than what was available from his or her own and other resources, including an analysis of the ability of the alleged defendant to be self-supporting.

Applicant’s Position

24The applicant submits that he was “principally dependent for care” on his sister prior to the accident, that he was not principally dependent on his mother and that he was not independent at the time of the accident.

25The applicant submits that he became principally dependent for care on his sister in 2017 when he moved away from his parents at the age of 14. The applicant submits that the “duration” of his dependency on his sister was from when he arrived in Ottawa in 2017 until the date of the accident. The applicant submits that he had evolving care needs as he grew up and transitioned from a teenaged high school student to a teenaged university student and his sister continuously provided for the applicant’s changing care needs throughout this time.

26The applicant submits that consistent with the reasoning in Harris and Gardiner, his permanent residence and home base was with his sister continuously from the time he moved to Ottawa in 2017, even though he lived away from home for school. The applicant submits that, when he was in school, he would always come home to his sister’s apartment for the holidays and summer. When he was in school in Ottawa, he would spend weekends and some weeknights at his sister’s home.

27The applicant submits that his sister assumed the role of parent which is culturally normal in his family. She fulfilled his physical care needs and his emotional support needs. The applicant relies on the Tribunal decision in L.M. v. The Co-Operators General Insurance Company, 2020 CanLII 35481 (ON LAT), where the Tribunal cited the decision in Oxford as follows,

However, one’s needs also include a care component. One must consider if the claimant has a need for care to ensure they are able to maintain a reasonable level of functioning in their daily life. Key factors to consider include social and emotional support, companionship, protection and services such as feeding, clothing, cleaning and transportation.

28With respect to his physical needs, the applicant submits that all of his personal belongings were located at his sister’s apartment, including his shoes, trophies, yearbook, and bicycle. His sister covered all expenses when they lived together including rent, groceries, gas, etc. She also provided him with pocket money when needed. His sister bought all of his clothes, hair care products and anything else that he needed for his personal care. His sister did all the cleaning of their home, including the applicant’s laundry when he was home from school. She also cooked for him and provided him with extra meals when he was in school in Ottawa.

29In terms of his emotional needs, the applicant submits that his sister provided him with support and advice about every aspect of his life, from financial advice, girls and relationships, school, his basketball career, and his future. His sister provided him with companionship and a sense of security. In his Affidavit dated March 22, 2024, he stated,

[Gisele] has always made sure that I had a loving and supporting home here in Ottawa. She made sure I had food and clothing. She provided me with love, support and advice in every aspect of my life from financial advice, girls, and relationships, school, my basketball career, and my future.

Ever since I moved back to Canada when I was 14, Gisele provided me with a stable home. This enabled me to go to the States for my training and school; I had her encouragement and support back home.

30The applicant submits that he was not “principally dependent” for care on his mother. His mother did not provide him with a home or other physical care. The applicant submits that, from 2017 to 2022, his mother lived in various countries in Africa while the applicant resided in Ottawa. The applicant’s mother did not contribute to the cost of the applicant’s housing, rent, or groceries when he lived with his sister in her apartment in Ottawa. The applicant acknowledges that, while his mother’s contribution to tuition and other school-related expenses might make him financially dependent on her, he was not dependent on her for care. The applicant further submits that his mother was not principally responsible for his emotional support and was mostly absent from his life since he moved to Ottawa in 2017. The applicant submits that his mother was largely unable to provide him with emotional support, because she was in Africa and the different time zones made it challenging to communicate. The applicant submits that he never visited his mother in Africa after he left in 2017, and his mother only visited him twice from 2017 to 2022.

31The applicant submits that he was not independent at the time of the subject accident. The applicant submits that he was only 19 years old at the time of the accident, and he was starting his first year of university. The applicant relies on the Superior Court decision in State Farm v. Bunyan, 2013 ONSC 6670 (“Bunyan”), where the Court stated that it can be difficult to determine precisely when an adult ceases to be dependent. The Court reasoned that functionally, the change from dependence to independence is more a transition than an event.

32The applicant submits that the decision in Bunyan considered factors like not having permanent accommodation, steady employment, savings, or one’s own money. The applicant further submits that he had never had a place of his own and had no money of his own. He only ever had one summer job in 2020, when he planted trees in British Columba for less than two months. The applicant submits that the fact that he was able to take a bus, attend class and play basketball is not evidence that he was “self-supporting”. The applicant submits that a teen could do all these things, provided they had the right care and support.

Respondent’s Position

33The respondent submits that the applicant was never principally dependent on his sister for care because he was a self-sufficient, independent, and able-bodied young man who was completely independent from any requirements for care from his sister during the limited periods of time that they both lived in Ottawa. He then later moved and was living in the United States. The respondent further submits that the applicant had no specific and necessary care needs that his sister provided him with at any time.

34The respondent submits that the applicant was self-supporting and able to maintain reasonable functioning in his daily life, independent of his sister’s care. The respondent states that there is no evidence suggesting that the applicant lacked the ability to attend to his own needs, either physically or emotionally. The respondent relies on the evidence in the Examination Under Oath transcripts of the applicant, his sister, and his mother.

35The respondent relies on the decision in Co-Operators v. TD and submits that the facts in that case are relevant to those in this matter. The Court found that the applicant provided for his care almost entirely on his own and was an able-bodied young man. The Court stated,

I do not accept that this relationship can be construed as one of providing “care” for JW and certainly cannot envisage this as being a situation where JW was principally dependent on CA or TA for care. He was able an able-bodied young man. He was able to deal with his own banking. He simply wasn’t in such a position of vulnerability that he required “care” to the extent that one could say he was principally dependent on CA and/or TA for care.

36The respondent further relies on the Arbitration decision in Echelon General Insurance Co. v. State Farm Mutual Automobile Insurance Co., 2011 CarswellOnt 13197 (“Echelon v. State Farm”), and submits that the decision outlines that a finding of dependency for care generally requires the existence of a vulnerability or physical/mental impairment. The respondent submits that the applicant did not suffer from any vulnerabilities or a physical or mental impairment.

37The respondent argues that when measuring the care provided by the applicant’s sister, one should measure that care against the care that was provided to the applicant by other sources and himself. The respondent submits that the applicant was an adult living and going to school in the United States with no support from his sister. He provided for all his own self-care, banking, transportation, attendance, and success at school, and athletic performance. The respondent submits that the applicant only returned to Canada four times for a brief period in the three years that he lived in the United States. The respondent argues that the applicant has many other relationships with other family members, billet families, his friends, as well as his university and basketball community. The applicant was also principally financially dependent on his mother.

38The respondent submits that the facts in this case are entirely distinguishable from those in the decision in Bunyan which is relied on by the applicant. In that case the applicant was an individual who faced an extremely difficult transition from dependency to independence. The Court reasoned that, based on the applicant’s history, he would have continued to move from job to job and return to his mother’s house when things did not work out. The respondent submits that the applicant in that case did not have a clear trajectory like the applicant in this matter, who had an unbroken record towards independence.

Applicant’s Reply Submissions

39The applicant submits in his reply submissions that the respondent downplays the amount of time the applicant spent with his sister and the nature of their communication while the applicant was away from school. The applicant submits that this was not a situation where they were interacting as regular siblings, as his sister was effectively parenting him.

40In his reply submissions, the applicant disputes the respondent’s argument that that he was able-bodied before his accident, with no existing “vulnerability or physical/mental disability.” The applicant submits that the respondent’s reliance on the decision in Echelon v. State Farm for the proposition that a finding of dependency for care generally requires the existence of a vulnerability, is incorrect. The applicant submits that the legal test does not require proof of a disability. He submits that the decision in Echelon v. State Farm says no such thing as a general proposition, although it does review the circumstances of a vulnerable claimant. The applicant submits that the decision in Echelon v. State Farm is noteworthy in its description of the nature of the care provided to the claimant and notes that the mother’s involvement in the claimant’s life provided a “sense of “security.” The applicant submits that this would likewise be an apt description of his sister’s role in the applicant’s life.

41The applicant further submits in his reply submissions that the respondent ignores the fact that the applicant had an Independent Education Plan right up until the accident due to his learning disability – dyslexia, dysgraphia and ADHD. The applicant submits that he struggled academically in school and had limitations and required accommodations.

The applicant has established that he was principally dependent for care on his sister

42I find that the applicant has proven on a balance of probabilities that he was principally dependent for care on his sister.

43In this matter we are only dealing with the issue of whether the applicant was principally dependent for “care” on his sister. The issue of “care” cannot be determined with the same mathematical precision as financial dependency as set out in Oxford.

44Cases involving the interpretation of principal dependency will be approached on their own particular facts. However, in considering who is an “insured person”, the legislative intent of the Schedule should be kept in mind. The interpretation must be made on the basis that the legislation is of a remedial nature, intended to broaden insurance coverage to include members of family units as persons insured under the policy, based on the decision in Smith.

45The Court of Appeal in Oxford has mandated that, in determining principal dependency for care, the “big picture” approach must be used. The applicant submits that the “duration” of the applicant’s dependency was from when he arrived in Ottawa in 2017 until the date of the subject accident on October 23, 2022. I find that the respondent has not provided submissions on the specific duration of dependency that should be considered. I find that, as the applicant submits, he was under the care of his sister after moving to Ottawa from 2017 until the date of the subject accident, this is the time period that will be considered. However, even if I considered only the months immediately prior to the accident, my findings would be the same.

46I find that the applicant’s life was in constant transition from June 2017 until the date of the subject accident. During this time-period, the applicant resided away from home throughout the school years. I find the decisions in Gardiner and Harris persuasive, specifically that, even when a student resides away from home during the school year, permanent residence remains at home with his family. I accept the applicant’s evidence that his permanent residence when he returned to Ottawa was with his sister and that this was his home base during the holidays and summers. While the applicant might not have spent long periods of time in Ottawa throughout those years, I accept his evidence that he returned to Ottawa when he was not in training or at school.

47With respect to the amount of care provided by the applicant’s sister, it is difficult to quantify the exact amount of care that was provided by an individual and therefore a qualitative analysis is also useful in this analysis. This analysis considers the degree of care provided and the individual’s need for care. I accept the applicant’s evidence that his sister had become like a parent to him, and he depended on her for physical and emotional support and care. I find that the applicant did not have a relationship with his father, and he had a difficult relationship with his mother because she lived in Africa where communication with her was difficult.

48I find that the evidence supports that the applicant had evolving care needs throughout the years, as he transitioned from a 14-year-old boy to a 19-year-old university student and basketball prospect. He had learning difficulties in school as well as various injuries. He was faced with difficult decisions about his basketball career and the steps required of him. I accept the evidence of the applicant that his sister provided him with the support and security he needed during these years, including ongoing communications and advice. I find that, while his mother might have assisted him financially, it is the applicant’s evidence that his sister was the one who called and FaceTimed him multiple times a week, and sometimes daily to ensure he was doing well and had everything he needed. It is apparent to me from the applicant’s evidence that he needed and derived from his sister a sense of security that was readily accessible to him.

49With respect to the argument that the applicant was principally dependent on his mother, I accept the applicant’s evidence that his mother was “mostly absent” from his life from 2017 to the date of the accident. I further accept the applicant’s evidence that she was not available to provide him with the daily support or care he required, based on the time difference and the challenges in communication.

50I do not accept the respondent’s submission that the applicant was self-supporting and able to maintain reasonable functioning in his daily life, independent of his sister’s care. The applicant was 14 years old when he arrived in Ottawa and 19 years old at the time of the accident. I find that the applicant was a student during these years, and he was faced with multiple decisions about his health and future for which he required support. It is not reasonable to state that the applicant who was 19 years old in these circumstances would be capable of making these decisions without the support of a family member. I accept the applicant’s evidence that it was his sister who helped him with these decisions.

51I agree with the respondent that when measuring the care provided by the applicant’s sister, one should measure that care against the care provided by other sources, as set out in Co-Operators v. TD. I find that while the applicant lived with billet families and had coaches and trainers, there is insufficient evidence to support the amount of care provided by these individuals, or to support the position that they provided more care and support than his sister.

52I further find that while the respondent argues that the applicant was independent because he lived away from home and was able to attend class and be successful in his athletic performance, there is insufficient evidence to suggest that the applicant lived independently in his own residence or supported himself financially. I accept the applicant’s evidence that he was able to function at school, deal with his physical injuries and resulting disappointments, with the main support of his sister.

53I further do not accept the respondent’s submission and reliance on the decision in Echelon v. State Farm, for the proposition that a finding of dependency for care generally requires the existence of a vulnerability. Upon review, this decision does not make this general proposition, but rather reviews the circumstances of a vulnerable insured person based on the facts of that decision. I find that a finding of dependency for care does not generally require the existence of a physical or mental vulnerability. An analysis of the entire fact situation must be considered on a case-by-case basis.

54For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that he was principally dependent for care on his sister.

ORDER

55For the reasons outlined above, I find that the applicant is an insured person under the policy issued by the respondent to the applicant’s sister.