COURT FILE NO.: 57249/17

DATE: 20210615

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRANDIN VERHOEF, Plaintiff AND: INTACT INSURANCE COMPANY, THE SUPERINTENDENT OF FINANCIAL SERVICES and JOHN DOE, Defendants

BEFORE: Mr. Justice Robert B. Reid

COUNSEL: D. Continenza, Counsel, for the Plaintiff B. Remigis, Counsel, for the Defendant Intact Insurance Company S. Warden, Counsel, for the Defendant The Superintendent of Financial Services

HEARD: May 25, 2021

decision on motion

[1] The defendant, Intact Insurance Company (“Intact”) seeks an order on summary judgment dismissing the action and all cross-claims against it. The plaintiff, Brandin Verhoef (“Mr. Verhoef”) opposes the motion. The defendant, The Superintendent of Financial Services, took no position and did not participate in the hearing.

Background:

[2] Mr. Verhoef was a cyclist when he was struck by an unidentified motor vehicle on August 18, 2014. He suffered injuries as a result. He was not a named insured under the policy of automobile insurance at the time.

[3] The defendant Intact was the automobile insurer for Mr. Verhoef’s mother. That policy included the OPCF-44R family protection endorsement.

[4] Mr. Verhoef named Intact as a defendant in this action and seeks OPCF-44R coverage under his mother’s policy.

OPCF-44R Family Protection Coverage:

[5] Uninsured motorist coverage is provided as part of a standard policy endorsement through OPCF-44R.

[6] To be entitled to coverage under the OPCF-44R endorsement, a person must be an “eligible claimant” which is defined in section 1.6 as the “insured person” who sustains bodily injury.

[7] “Insured person” is defined in section 1.6 of the endorsement as:

(a) the named insured and his or her spouse and any dependent relative of the named insured and his or her spouse while …

(iii) not an occupant of an automobile who is struck by an automobile….

[8] Relevant to this motion, “dependent relative” is defined in section 1.2(c) of the endorsement as “a relative of the named insured or his or her spouse, who resides in the same dwelling premises as the named insured.”

[9] Unfortunately, the word “resides” is not defined in the endorsement.

The issue:

[10] The outcome of this motion depends on the factual determination of whether Mr. Verhoef resided in the same dwelling premises as the named insured, namely his mother, on August 18, 2014.

[11] Regardless of the result, Mr. Verhoef’s claim against The Superintendent of Financial Services can continue.

Summary judgment procedure:

[12] The summary judgment procedure set out in rule 20 of the Rules of Civil Procedure[^1] is not novel. Rule 24.04(2) requires the court to grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[13] As the Supreme Court of Canada made clear in Hryniak v. Mauldin, 2014 SCC 7, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented by the parties without using the fact-finding powers in rule 20.04(2.1) and (2.2). The expectation is that in making or responding to the motion, the parties have each put their best foot forward.

[14] There will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits. Such a determination is possible when the court can make the necessary findings of fact, apply the law to the facts, and where the result is a proportionate, more expeditious and less expensive means to achieve a just result.

[15] Counsel for Intact submitted that there is no genuine issue requiring a trial as to whether Mr. Verhoef resided in the same dwelling premises as his mother on the day he was injured. Counsel for Mr. Verhoef submitted that the intention of Mr. Verhoef as to his place of residence may be a genuine issue requiring a trial.

[16] Mr. Verhoef gave a written statement dated November 10, 2014 in the office of his counsel at the request of Intact, and his mother made a handwritten statement which she signed and dated October 5, 2015. The issue of Mr. Verhoef’s residence was addressed in those statements. Mr. Verhoef was examined for discovery on May 29, 2018, and again his place of residence was reviewed. Further, in response to this motion, he provided evidence in his affidavit sworn December 22, 2020 on the subject, which also dealt with the residence issue. On March 15, 2021, Mr. Verhoef was cross-examined on his affidavit.

[17] In addition to the evidence provided both under oath and in unsworn written statements by Mr. Verhoef and his mother, Intact relied on Ontario Works case notes and an Ontario Works application for assistance, the motor vehicle accident report, a Niagara Regional Police general occurrence report, emergency records from the hospital and two Intention to Rent information sheets.

[18] It is possible that, at trial, individuals with whom Mr. Verhoef may have lived from time to time could be called to give evidence about Mr. Verhoef’s place of residence. However, I am satisfied that the evidence from the two key players, namely Mr. Verhoef and his mother, is comprehensively before the court as are the business records to which I have referred.

[19] I conclude that there is no genuine issue requiring a trial. The summary judgment procedure allows me to arrive at a decision that is fair and just. It also provides a proportionate, more expeditious and less expensive way to resolve the question of Mr. Verhoef’s residence on October 18, 2014 than to have that issue dealt with at trial.

The facts:

[20] The facts in this motion are not significantly in dispute. The parties disagree as to the proper conclusions to be drawn from the facts.

[21] At the motion hearing, the parties agreed that the records contained in the affidavits constituted business records and were admissible for the truth of their content. This includes the police, hospital and Ontario Works records.

[22] On August 18, 2014, Mr. Verhoef was 17 years of age.

[23] Mr. Verhoef lived mainly with his mother in Renfrew, Ontario until about 2011. He was then removed from his mother’s care and placed in foster care for several months, following which he moved in with his father.

[24] In early 2012, Mr. Verhoef left his father’s home and went to stay for a few months with Michelle and Trevor Burgess, the parents of his sister’s then boyfriend. That arrangement was described in a clinical note from his family doctor dated April 5, 2012 as a “kinship agreement”, in effect from March 1, 2012.

[25] In summer 2012, Mr. Verhoef moved in with his mother in Niagara Falls, Ontario where he had a furnished bedroom in her basement.

[26] From time to time, Mr. Verhoef had disagreements with his mother and her partner, often because of rules she imposed including curfew, requirements to clean up, and to smoke less. He would leave her home to stay with friends, or with an older sibling. He would typically return to his mother’s home in due course.

[27] In or about January 2014, Mr. Verhoef again argued with his mother and her partner because of her rules and left her home to stay with a friend, Austin Price, who lived with his mother and siblings in Niagara Falls.

[28] While staying with Mr. Price, Mr. Verhoef slept on a couch downstairs in Mr. Price’s room. Mr. Verhoef brought minimal personal belongings to that residence. After several weeks, Mr. Price’s mother (Melanie Bureau) requested the payment of rent.

[29] In March 2014, Mr. Verhoef applied for Ontario Works and showed his address as that of Ms. Bureau. The Ontario Works case note indicates that Mr. Verhoef was eligible to receive money for rent as of March 1, 2014 because he required permanent accommodations, having been “kicked out” in January. He began paying rent. Mr. Verhoef, who was under the age of majority, named a schoolteacher as trustee to receive and disburse the Ontario Works funds for rent and other purposes as needed.

[30] Between January 2014 and August 18, 2014, Mr. Verhoef returned from time to time to his mother’s home where a bedroom was maintained for his exclusive use. He stated that he returned to shower, sleep, eat meals and pick up belongings. He said he would stay for a few hours up to a few days at a time. Most of his personal belongings remained in his bedroom there. He did not need permission to enter his mother’s home nor did he need to make advance arrangements. His mother provided him with some groceries, meals, prepaid calling cards, and cash.

[31] The motor vehicle accident report completed by the Niagara Regional Police on August 18, 2014 identifies Mr. Verhoef’s address as that of Ms. Bureau.

[32] A general occurrence report prepared by the Niagara Regional Police dated August 18, 2014 shows Mr. Verhoef’s address in one part of the report as that of Ms. Bureau, with Mr. Verhoef’s mother as “kin”. At another part of the report Mr. Verhoef’s address was shown as that of a friend named Tammi Potter. Mr. Verhoef deposed in his affidavit filed in support of this motion that he has no independent recollection of the events immediately following the August 18, 2014 incident. He cannot recall providing personal information to the police or the paramedics.

[33] The emergency record from the Niagara Falls Hospital on August 18, 2014 indicates Mr. Verhoef’s address to be that of Ms. Bureau. The form was printed to show Ms. Bureau as his substitute decision-maker/first contact, with her telephone number. However, that information was crossed out manually and his mother’s name and her telephone number were inserted instead. No change was made to the address information.

[34] On April 30, 2015, eight months after sustaining his injuries, Mr. Verhoef showed his address on an Intent to Rent information document with the Niagara Region as that of Tammi Potter. A similar document was completed on August 27, 2015 indicating that Mr. Verhoef’s current address was that of Ms. Potter, with a proposed new rental address with a different landlord. He listed his sister as his next of kin.

[35] Ontario Works case notes indicate that on October 22, 2015 Mr. Verhoef was deemed no longer eligible for Ontario Works assistance because he had moved back with his mother as of October 18, 2015. However, he applied again for Ontario Works on December 4, 2015 indicating his intention to move back into a friend’s residence since “it did not work out with his mother due to conflict with her boyfriend.”

[36] Mr. Verhoef’s mother signed a statement on October 5, 2015 in which she says that Mr. Verhoef lived with her for three years before the incident of August 18, 2014. She said he was “gone” for about six months in 2014 from January and then was “back and forth” for a couple of weeks before the incident. She says that to her knowledge at the time of the incident, her son was living with Austin Price and going to school off and on. The school would call her about his truancy. She says she would not hear from him for weeks at a time. She did not know for sure when she spoke to him last before the accident. She said she thought he might have been receiving student welfare funds but did not know for sure. He would ask her for help when he needed it. During the six months before the incident, she said Mr. Verhoef came and went at least a dozen times and that he would stay for different amounts of time, but when he did stay it was only for a day or so.

[37] Mr. Verhoef gave a written statement to Intact in his lawyer’s office on November 10, 2014 to the effect that he was still financially dependent on his mother despite his living with Ms. Bureau. He stated that before the incident, he was living with Austin Price, and had been doing so for seven months prior to the incident, paying Ms. Bureau rent. He stated that he would sometimes sleep at his mother’s house, “maybe a couple of times a week”, and that he was planning on staying with Mr. Price until he found his own place. He said he thought he could do everything himself and live on his own: he said he was “just being a stubborn teenager”. Mr. Verhoef stayed with his mother after his hospitalization until moving back into Ms. Bureau’s home in about mid-October 2014.

[38] At his examination for discovery on May 29, 2019, Mr. Verhoef said that he had been living at the address of Ms. Potter for a couple of years. For a year prior to that, he had been living with another friend, Kenny Teal, and Mr. Teal’s mother. He deposed that at the time of the accident he had been living with Austin Price for “about a year or two probably” and that he was paying rent to Ms. Bureau. He said that his mother or sister would give him groceries “to take home” and that in any given month, he would stay with his mother four or five times and occasionally at his sister’s place.

[39] In the cross-examination on his affidavit filed in response to this motion, contrary to his statement of November 10, 2014, Mr. Verhoef indicated that it was not his plan to stay at Ms. Bureau’s home until he found his own place. When asked what his plan was, he answered:

I dunno. I was young, like I said, I just didn’t like the rules, I liked all the freedom, I liked the money that I was getting. My mom’s -- my mom’s place was always a second home to me. I had a safe place, and I was able to shower and eat. I just -- like I said, I liked -- I was young, I liked being free.

Case law:

[40] Courts on previous occasions have considered whether individuals reside with a parent where residence was a requirement for insurance coverage.

[41] In Harris (Litigation Guardian of) v. Pilot Insurance Co., (1997) 1997 CanLII 4436 (ON CA), 34 OR (3d) 633, the Ontario Court of Appeal determined that if the plaintiff had a settled pattern of living in two different places, he could be found to have had a dual residence. The term “resides” is sufficiently broad to include situations where a person has a dual residence because the term is not qualified by additional words such as “ordinary” or “customary”.

[42] The court found that there was no positive evidence in that case to show that the plaintiff intended to return to live in his mother’s residence. Since he was residing with his father in Florida and working there, and since his pattern of returning regularly to his mother for holiday times had changed, no dual residence was found.

[43] In Gardiner v. MacDonald Estate, 2015 ONSC 227, a decision of this court, the issue as in this case was the plaintiff’s entitlement to claim insurance coverage under OPCF-44R and the question of whether he resided with his mother, the insured. The plaintiff was a student who attended university and lived in shared rental accommodation during the school year but typically returned to live with his mother during holidays and the summer. He listed his mother’s address on his legal documents including his student file at the university, student loan applications, bank accounts, credit cards and driver’s licence. He considered his mother’s home to be his permanent residence. The court agreed, holding that he resided in the same dwelling premises as the insured (his mother), despite living part of the year away from home while at school.

Analysis:

[44] Mr. Verhoef is a young man who in the years prior to the date of his injuries had a history of significant and ongoing conflict with his mother and her partner, such that he moved out on several occasions to temporary accommodations. From January 2014, some seven months before the injuries were suffered, he lived with Ms. Bureau, and began paying rent to her in March.

[45] While living with Ms. Bureau, Mr. Verhoef returned to his mother’s home from time to time. He was welcome to return there. His bedroom was available for him and he continued to store many of his personal belongings in that bedroom.

[46] There is some disagreement about the frequency of Mr. Verhoef’s visits to his mother’s home. He returned somewhere between twice a month (as reported by Ms. Verhoef in her statement), four or five times a month (as deposed by Mr. Verhoef in his examination for discovery) and a couple of times a week (according to Mr. Verhoef on his cross-examination and in his written statement). I do not consider the factual discrepancies to be significant. By any measure, the visits were sporadic, occasional, and brief.

[47] On the date of the incident, his recorded address was not that of his mother, rather that of Ms. Bureau. There was no documentation supporting residence with his mother, and although her name was added as a contact on the hospital records in place of that of Ms. Bureau, his home address (being that of Ms. Bureau) was not changed.

[48] There is no statement by Mr. Verhoef that he intended to reside with his mother as of August 18, 2014. In fact, it is fair to say that he did not want to live under his mother’s direction and control, since that was a source of conflict. He wanted independence and money. The only way he could access Ontario Works funds was to have an address separate from his mother. He had been in receipt of that funding from March 2014 to the date of the incident and had been living mainly with Ms. Bureau, subject only to his occasional visits to the home of his mother or sister for food, sleep, showers and money.

[49] Mr. Verhoef’s actions after the incident, once he had recovered sufficiently to be independent, were similar to those in the seven months before: he applied for and received Ontario Works funds and lived at residences other than that of his mother.

[50] Mr. Verhoef did not have a permanent residence. Sleeping on a couch in a shared area of a home does not sound like a long-term situation. However, the relevance of the living arrangements with Ms. Bureau was not its permanence but rather the separation it showed from residence with his mother.

[51] In effect, Mr. Verhoef’s occasional returns to his mother’s residence were in the nature of sojourns: casual, occasional or intermittent visits. By analogy, the situation is similar to that of an adult child who, without the need for invitation or permission, comes home for visits with parents, sleeps in his childhood bedroom, and enjoys their largesse while he is there. I think it would be a surprise to a parent in that situation to find that their child was “residing” with them so as to be entitled to OPCF-44R coverage.

[52] It is true that courts have allowed an expanded definition of residence to include dual residences. This is in keeping with the general principle of interpretation of insurance policies where the true intent of the parties at the time of entry into the contract is to be promoted and protected. However, there must still be some connection stronger than that of an occasional visitor to support a finding that the person was residing in the same dwelling. Neither Mr. Verhoef nor his mother believed that he was residing with her. Finding that Mr. Verhoef was not residing at his mother’s home as a result of his brief and occasional visits is consistent with the likely intention of the parties when the insurance contract was made.

Conclusion:

[53] The question of whether Mr. Verhoef resided in the same dwelling premises as the named insured, namely his mother, on August 18, 2014 is one of fact.

[54] I find as a fact that Mr. Verhoef was not residing in the same dwelling with his mother at the relevant time, and therefore that OPCF-44R coverage was not available to him.

[55] For the foregoing reasons, the plaintiff’s action and all cross-claims against the defendant Intact are dismissed.

Costs:

[56] I encourage the parties to resolve the issue of costs consensually. If they are unable to do so, they may make brief written submissions.

[57] I will receive submissions according to the following timetable:

a. The defendant Intact is to serve the plaintiff with written costs submissions not exceeding five pages in length and a Bill of Costs on or before June 29, 2021.

b. The plaintiff is to serve the defendant Intact with written costs submissions not exceeding five pages in length and a Bill of Costs on or before July 13, 2021.

c. The defendant Intact is to serve the plaintiff with any responding submissions on or before July 27, 2021.

[58] All submissions are to be filed with the court no later than July 28, 2021. If submissions are not received by that date, or any agreed extension, the matter of costs will be deemed settled.

Reid J.

Date: June 15, 2021

[^1]: R.R.O. 1990, Reg. 194