The claimant’s mother was a passenger in a vehicle at the time of her accident. She did not have automobile insurance of her own. She was badly injured and suffered catastrophic impairments. She applied to the driver’s automobile insurer, Wawanesa, for accident benefits.
Sixteen years later, the passenger’s son – now 21 years old – also applied to Wawanesa for accident benefits. He was not involved in his mother’s accident, but sought qualify as an “insured person” as defined in section 3 (1) of the SABS.
The son was 5 years old when his mother was in the accident. Neither the mother or son had a familiar or dependant relationship with the driver of the vehicle (Wawanesa’s insured).
It was alleged that the son was psychologically effected by his mother’s accident, and required treatment.
Wawanesa argued that the son was 1) statute barred to his late application for benefits and 2) did not qualify as an “insured person.”
LAT Adjudicator Maureen Helt released her decision on August 15, 2018. She found that the son did not qualify as an “insured person” as defined in section 3 (1) of the SABS. She did not comment on whether the son was statue barred due to his late application for benefits.
Position of the Parties
Wawanesa argued that the son was not an “insured person” because: he was not Wawanesa’s named insured; he was not a dependant of the named insured; and, he was not a dependant of the named insured’s spouse.
The claimant argued that: 1) the LAT did not have jurisdiction to decide if the son was an “insured person”, and 2) the issue was actually one of priority between the MVACF and Wawanesa , pursuant to O. Reg. 283/95: Disputes Between Insurers.
Adjudicator Helt found that the LAT did have jurisdiction to determine the issue regarding whether or not the claimant was an “insured person” pursuant to the SABS. She found that section 280 (1) of the Insurance Act, RSO 1990, c. I.8, identified the LAT as the sole jurisdiction for determining accident benefits disputes.
Definition of “Insured Person”
Despite her finding above, Adjudicator Helt relied on a private priority decision of Wawanesa v. Her Majesty the Queen and Allstate Insurance (August 14, 2009, Arbitrator Robinson). In that case, the applicant was the mother of a boy who was involved in a motor vehicle accident. The son was a passenger in his father’s car which was insured by Wawanesa. Following the accident, the mother applied for benefits relating to psychological injury as a result of physical injuries to her son. At the time of the accident the mother was separated from her son’s father. As such, the mother was not a named insured, spouse of a named insured or dependent of the named insured or spouse.
Adjudicator Helt applied the principles of statutory interpretation in reaching her ultimate conclusion. She found that the grammatical and ordinary sense of the definition of “insured person” in the SABS is clear and unambiguous. She found that the son did not fall within the definition. As such the claimant was not entitled to statutory accident benefits.
When the son first applied to Wawanesa for benefits at the age of 21, Wawanesa requested documents and arranged an examination under oath. Two years later, Wawanesa denied the son’s entitlement to benefits where he did not meet the definition of an “insured person.”
The clamant argued that Wawanesa’s initial response to the application for accident benefits appeared as an acceptance of the son’s entitlement to benefits. The claimant further argued that Wawanesa was estopped from disputing the son’s entitlement to benefits.
Wawanesa argued that the LAT did not have the jurisdiction to apply an equitable remedy. Wawanesa relied on the LAT decision of JT v. Aviva (16-003674). In that case, the Adjudicator found that the Tribunal did not have jurisdiction to provide equitable remedies including estoppel. The decision was upheld in a reconsideration by the Executive Chair. Wawanesa argued that an equitable remedy cannot be used to find entitlement to accident benefits where entitlement does not exist in the SABS.
Adjudicator Helt found that Wawanesa’s response to the son’s application did not acknowledge his entitlement to benefits and did amount to an admission that there was of an obligation to pay accident benefits.
Adjudicator Helt also found that the onus rested on the claimant to establish an entitlement to benefits. Where no entitlement existed in the SABS, there could be no remedy of estoppel.
Although not mentioned in the LAT decision of 18-001020 v Wawanesa Mutual Insurance Company, this issue was previously determined by the Ontario Court of Appeal in Kwok v. Ontario (Minister of Finance), 2004 CanLII 9027 (ON CA). This case was an appeal by the plaintiff, Kwok, from an order of a motions court judge who concluded that the plaintiff had no entitlement to accident benefits or recourse against the MVACF pursuant to s. 6 of the Motor Vehicle Accident Claims Act. The plaintiff was not involved in the accident and did not have first party insurance. The Ontario Court of Appeal dismissed the appeal in finding that the plaintiff was not entitled to statutory benefits under any insurance policy, and, therefore, could not claim under the MVACF.
For added clarity, the Court of Appeal, in Warkwick v. Gore Mutual Insurance Co. (1997), 32 OR (3d) 76, held that entitlement to accident benefits is determined by the definition of “insured person” in the SABS, not the definition of “insured” in the Insurance Act.
Meredith Harper is a member of the Catastrophic Loss practice group and the Licence Appeal Tribunal group. If you have a question about this decision or a similar file, please contact Meredith.