Court of Appeal for Ontario

Citation: Security National Insurance Co. v. The Wawanesa Mutual Insurance Company, 2014 ONCA 850

Date: 2014-11-27

Docket: C58798

Before: Simmons, MacFarland and Benotto JJ.A.

Between

Security National Insurance Co.

Applicant (Respondent in Appeal)

and

The Wawanesa Mutual Insurance Company

Respondent (Appellant in Appeal)

Counsel:

Kevin D.H. Mitchell and Monica Cop, for the appellant, Wawanesa Mutual Insurance Company

J. Jason Kerr, for the respondent, Security National Insurance Co.

Heard and released orally: November 20, 2014

On appeal from the order of Justice Morgan of the Superior Court of Justice, dated December 9, 2013.

Endorsement

[1] This is an appeal from the judgment of Morgan J. setting aside the award of Arbitrator Robinson, dated April 30, 2012. The issue in this case is whether or not Mr. Kibria was dependent on his son and daughter-in-law within the meaning of that term in the policy of insurance owned by his son. If he was principally dependent for financial support, Security National pays, if not, Wawanesa pays.

[2] It is not disputed that Miller v. Safeco Insurance Co. (1985), 50 O.R. (2d) 797 (Ont. C.A.) a decision of this court is the seminal case in this area. In Safeco, this court endorsed the decision of O’Brien J. with one exception. The factors that must be considered are the amount and duration of the financial dependency, financial or other needs of the claimant and the ability to be self-supporting.

[3] The essential issue here is the dependency of Mr. Kibria and whether or not at the time of the accident he was principally financially dependent on his son. Arbitrator Robinson said he was. Justice Morgan said he was not.

[4] The issue of principal financial dependency is a question of fact, and absent palpable and overriding error the finding is entitled to deference on appeal.

[5] It is clear from para. 10 of his reasons that Arbitrator Robinson applied the Safeco test. First, he considered the duration and the amount of the dependency and he found that that was from the time Mr. Kibria came to Canada in October 2006 to the date of the motor accident. He then turned to Mr. Kibria’s needs and found that Mr. Kibria relied on his son and daughter-in-law for his personal needs and his financial needs. He considered Mr. Kibria’s ability to earn income, the fact that he was 81 years of age and the fact that he looked after his grandchildren. He knew and was aware of the fact that Mr. Kibria had lived in Bangladesh and that he had property there.

[6] The Arbitrator concluded, on the evidence before him, that for the duration of his time in Canada, Mr. Kibria was principally financially dependent.

[7] The appeal judge found that Arbitrator Robinson erred in failing to account for the voluntary nature of Mr. Kibria’s dependence on his son and daughter-in-law. We disagree.

[8] In our view, the Arbitrator made a factual determination of principal financial dependency premised on the unique circumstances of this case. In our view, it was open to him to do so and his finding was a reasonable one. We do not agree that the Arbitrator considered the VISA status in Canada as a new criteria to be added to the Safeco test.

[9] The appeal is allowed and the decision of the appeal judge is set aside and the award of the Arbitrator is restored.

[10] Costs below are set aside and to be agreed upon by the parties. Costs of the appeal to the appellant fixed at $15,000.00 inclusive of disbursements and applicable taxes.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“M. L. Benotto J.A.”