RECONSIDERATION DECISION
Before:
Brian Norris
Licence Appeal Tribunal File Number:
22-011775/AABS
Case Name:
Elias Naim v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Yianniko Kozoronis, Counsel
For the Respondent:
Daniel Strigberger, Counsel
OVERVIEW
1This request for reconsideration was filed by Elias J. Naim (“the Applicant”). It arises out of a decision, dated December 11, 2024 (“the decision”). In the decision, I found that the Applicant was not entitled to claim accident benefits because he was not a dependent of his Aunt, whose policy he claims benefits through.
2The Applicant submits that I committed an error of law and/or fact such that the Tribunal would have reached a different result had the error not been made. Specifically, he submits that I committed the following four errors:
I. I misapplied the dependency test under Miller v. Safeco insurance Company of America, 1984 (“Miller”) and Allstate Insurance v ING Insurance et al, 2015 ONSC 4020 (“Allstate”) by improperly relying on a mathematical analysis and failing to apply the “big picture” approach;
II. I failed to properly weight the agreed-upon Market Basket Measure (“MBM”) and Low-Income Cut-Off (“LICO”) calculations, which conclusively establish that the Applicant could not provide for more than 50% of his needs;
III. I failed to consider the unique and transitional circumstances of the Applicant as a student, supported by case law addressing “youth in transition”; and
IV. I failed to account for the remedial intent of the legislation, as articulated in Miller, which is to extend broad coverage to family units.
3To the Respondent, the request for reconsideration should be dismissed because the Applicant has raised points of dissatisfaction with the outcome – not genuine errors of law or fact. It submits that the correct legal tests were applied, the evidence was properly assessed, and produced a result that is consistent with the law and the hearing record.
RESULT
4The Applicant’s request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
BACKGROUND
8The Applicant was a passenger involved in a single-vehicle accident. He suffered substantial injuries as a result of the accident, including a fractured vertebrate, and continues to suffer from ongoing issues to-date.
9The Applicant claimed entitlement to accident benefits through a policy owned by his Aunt. He claimed that he was a dependent of his Aunt and sought accident benefits from the Respondent. The Respondent disagreed that the Applicant was a dependent of his Aunt and denied entitlement to benefits.
10I found that, when assessing the Applicant’s finances over the 12-month period pre-dating the accident, the Applicant met no more than 50% of his financial needs, but was not principally dependent on his Aunt for financial support. A key component of my finding was that the Applicant’s Aunt cannot be given credit for providing housing to him, because there was no compelling evidence demonstrating that she was the owner of the home he resided in or was the person responsible for the household expenses such as utilities. Thus, I found that he was not principally dependent on his Aunt for financial support.
11In rejecting the Applicant’s claim, I found the following:
I. The Applicant attributed the cost of his housing and household expenses entirely to his Aunt, when there was no evidence demonstrating that she was responsible for such expenses related to a home owned by the Applicant’s grandparents;
II. The Applicant attributed household expenses to his calculation of support from his Aunt when there was no evidence the expenses were for him and not the others living in the home;
III. The Applicant’s Aunt claimed to have given him $600.00 to $1,000.00 per month, mostly via e-transfer, but the Applicant’s banking records failed to corroborate the reports.
12Given the Applicant the benefit of the doubt, and with disregard for the duplicate accounting of certain household goods, I concluded that the Applicant’s Aunt did not exceed the amount the Applicant provides for himself, nor did it exceed 50% of his financial needs. Thus, I concluded that he was not a dependent of his Aunt and not entitled to benefits.
ANALYSIS
The dependency test
13I find no error in my use of the MBM and the LICO, or my application of the dependency test, outlined in Miller and Allstate.
14I see no error in my application of the MBM and LICO calculations, and agree that the Applicant does not meet more than 50% of his financial needs. At paragraph [17] of the decision, I accepted the Applicant’s submissions and evidence that his financial needs fell between $22,546.00 and $27,200.00. I also accepted his submissions and evidence, that his personal income for the same period was $8,131.00. Thus, I concluded that the Applicant could not meet more than 50% of his financial needs and made no error in my application of the common law on this issue.
15The Applicant submits that Miller holds that the remedial purpose of the legislative framework when determining dependency should be construed most favourably to the insured for the protection of the insured. He further submits that in Allstate, the Court advised that it is not a purely mathematical test, and it is important to consider the broader circumstances. He submits that my legal analysis is flawed because I failed to engage in the first step of the dependency test – determining whether he meets 50% of his own financial needs (the other step, is to determine whether another person provides more for the Applicant than the Applicant provides himself).
16I see no error in my application of the common law established in Miller and in Allstate. I summarized the law in paragraphs [18] to [19] of the decision. There I highlighted a key application of Allstate to the Applicant’s matter – 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.”
17To me, Miller and Allstate import a mathematical basis for the test of dependency and provide that it be viewed together with a “big picture’ perspective. Both decisions discuss the dependent’s income and ability to meet their own needs during the period of analysis. In Allstate, it is expressly stated that “(t)here are some mathematical calculations required to consider aspects of the applicable legal test”. It also provides that “if a person has the means to provide more than 50% of her own needs, then she cannot be dependent”. It also stands for the converse, in that “where one person provides more than 50% of the needs of another, then the other is financially dependent upon the provider”.
18The mathematics in Miller and Allstate were applied with a big picture approach. At paragraph [23] of the decision, I gave the Applicant the benefit of the doubt and allocated to him all the household expenses provided by his Aunt – despite the likelihood that many of those expenses were not for the Applicant. I also found discrepancies between the accounts of his Aunts purported financial contributions versus the documented contributions. At paragraph [24] of the decision, I noted that the Applicant’s Aunt reported that she provided approximately $600.00 to $1,000.00 per month, mostly via e-transfer. Yet, the e-transfers for the period totalled no more than $2,800.00. Thus, even if I were to further give the Applicant the benefit of the doubt on this point, the contributions from his Aunt would increase by no more than $2,800.00, which would continue to be less than 50% of the Applicant’s needs.
19The big picture approach does not permit the decision maker to allocate expenses to a person where there is no evidence to indicate they paid those expenses. I acknowledge that the Applicant’s Aunt contributed to his support, but I am unable to allocate the housing expenses to her because she is not the homeowner and provided no compelling evidence that she is responsible for the home in other ways such as hosting utility accounts in her name or demonstrating that she paid the utility bills.
20My finding in paragraph [25] of the decision remains factually correct. The Applicant submits that at paragraph [25] of the decision I erroneously concluded that he failed to demonstrate that he meets no more than 50% of his financial needs. While I agree I expressed it poorly, I nevertheless disagree with this characterization of my findings. To me, the Applicant omits an important part of my finding to relitigate the issue. Paragraph [25] states as follows:
It follows then, that the Applicant is not financially dependent on his Aunt because he has not demonstrated that he meets no more than 50% of his financial needs and is principally dependent on her for financial support.
21The use of the word “and” demonstrates that the two-part test is engaged. I agree with the Applicant that he meets the first part of the test – he does not provide more than 50% of his financial needs, as outlined in paragraph [17] of the decision. The issue, in the Applicant’s case, is that he has not passed the second part of the test because his Aunt does not provide more than he provides for himself. It is addressed in paragraphs [22] to [24] of the decision and involves the application of Allstate when assessing dependency where an individual is dependent on multiple sources. In those paragraphs I outlined my findings regarding the Applicant’s accounting report on his dependency. Particularly, I found:
I. The Applicant lived in shared accommodations for a period, and then moved into his grandparents home for the remainder;
II. The Applicant’s Aunt lived in the grandparents home since 2020;
III. The Applicant’s accounting report attributed his household costs to his Aunt, a resident of the home, and not his grandparents, the owners/primary occupants of the home;
IV. The receipts provided by the Applicant’s Aunt do not demonstrate that she is the provider of the household expenses and, instead, create a situation where expenses are double-counted when calculating his Aunt’s financial contributions;
V. The e-transfer evidence was inconsistent with the evidence provided in examinations under oath.
VI. The contributions from the Applicant’s Aunt, even when disregarding the over-reporting discrepancy, was $7,357.35, which is below the Applicant’s income of $8,131.00, and well below 50% of the Applicant’s total needs.
22Considering the above, I see no error in my application of the common law by using a mathematical approach, and find that I properly weighed the MBM and LICO calculations,
The Applicant’s unique and transitional circumstances
23I find that the Applicant is attempting to relitigate the issue on his transitional circumstances and find no error in my approach in this part of the assessment of his dependency.
24The Applicant’s unique transitional circumstances were considered. At paragraph [12] I outlined that I would consider the one-year period preceding the accident, as suggested by both the Applicant and Respondent. At paragraph [14], I noted that the Applicant resided in shared accommodation for part of the period reviewed, and at his grandparents’ home for the remainder of the period. It is clear that the transitional circumstances were considered, but they did not permit me to allocate expenses to the Applicant’s Aunt, such as the household expenses, because she was a resident of the home and provided no evidence she was responsible for the household expenses like mortgage payments, rent, or utilities. At most, the Applicant’s Aunt demonstrated that she purchased household goods such as pillows, blankets, and toiletries. Such purchases do not make one responsible for the household expenses and accordingly, I find no error of law or fact that would change the outcome.
The remedial intent of the legislation
25I find that the remedial intent of the legislation does not provide that the Applicant should be considered to be a dependent of his Aunt. The remedial intent of the legislation, as outlined in Miller, is to broaden insurance coverage to include members of family units as persons insured under the policy. However, the remedial intent of the legislation does not permit me to allocate expenses to a person where there is no evidence demonstrating that the person is responsible for those expenses. Here, the Applicant moved into his grandparents’ home, where his Aunt also resided, and I found that his Aunt was not responsible for the household expenses. In the Applicant’s situation, it appears that the more likely scenario is that he is dependent on his grandparents, given the accommodations they provide for him – though I am unable to allocate this dependency to the Applicant’s Aunt, for the reasons outlined above.
CONCLUSION & ORDER
26For the reasons above, I find no error of fact or law such that the Tribunal would likely have reached a difference result had the error not occurred.
27The Applicant’s request for reconsideration is dismissed.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 8, 2025