Category: Insured Person

Bustin v. Economical Insurance Company (20-007017)

The claimant sought entitlement to accident benefits after witnessing a fatal collision on October 13, 2019. He claimed that he had been involved in the accident and was an “insured person” as defined in the SABS. The claimant had been sitting on the porch of his aunt’s home when two vehicles struck one another in a head-on collision, killing two occupants in one of the vehicles. He claimed that he had witnessed the deceased pair being extracted from their vehicle and covered with white cloth. He argued that he had been involved in the accident because he had developed psychological injuries as a result of witnessing the accident. Adjudicator Norris found that the claimant was not involved in the accident and was therefore not an “insured person” under the SABS. He noted that witnessing the accident and its aftermath did not constitute being involved in an accident. In addition, Adjudicator Norris found that the claimant was not entitled to claim for “nervous shock” under the SABS because he had not been related to anyone involved in the accident. The claimant’s application for benefits was dismissed.

E.J. v. Economical Insurance (20-008287)

The minor claimant was the daughter and sibling of family members involved in a serious accident. The claimant was not herself in the vehicle at the time. The claimant applied for accident benefits, but the insurer denied the application arguing that the claimant was not in an accident. Vice Chair Lake agreed that the claimant was not involved in an accident, but that she was an insured person. The claimant was a dependent of her father. Her father suffered physical injuries as a result of the accident. The claimant suffered psychological injuries as a result of her father’s injuries. The claimant was therefore entitled to accident benefits as an insured person. A treatment plan for psychological treatment was awarded. An claim for lost educational expense was not awarded because it was not incurred prior to the accident.

Chen and Chen v. Travelers Insurance Company of Canada (20-007653 and 20-007658)

The claimants’ daughter was involved in an accident in Ontario. The claimants resided in China at the time. They moved to Canada to assist their daughter with her recovery. They applied for accident benefits under the daughter’s policy. The insurer argued that the claimants were not insured persons at the time of the accident. Adjudicator Watt agreed with the insurer. The claimants were required to show that the were principally dependent on the daughter for financial assistance at the time of the accident. Adjudicator Watt held that the evidence submitted by the claimant was insufficient to prove dependency. There was insufficient evidence of the claimants’ access to their daughter’s bank account, or that they withdrew funds on a regular basis, or that they required the funds for their own financial needs. The claimants did not provide admissible evidence regarding the cost of living in their home town (Chengdu, China). Adjudicator Watt criticized the claimants’ failure to put forward affidavit evidence from either the themselves or their daughter regarding the financial relationship. As a procedural matter, Adjudicator Watt excluded three documents from the hearing because they were not disclosed by the claimants to the insurer in accordance with the Case Conference Order, and had only first been provided as part of the claimants’ submissions.

Millar v. The Cooperators General Insurance Company (2021 ONSC 6643)

The insurer appealed the Tribunal’s decision that the claimant was an insured person under its policy as a “dependant”. A LAT hearing on the benefits was scheduled for six months later. The Divisional Court dismissed the appeal as being premature because the claimant’s status as an insured person was only a preliminary matter that the Tribunal needed to address before adjudicating entitlement to benefits.

Amiri and Mireskandari v. The Co-operators (20-003296)

The claimants were out for a walk with their spouses when a member of their group, a close relative, was struck by a motor vehicle in a pedestrian accident. The claimants, who were uninsured, applied for accident benefits under the driver’s policy, claiming emotional shock and psychological distress. Adjudicator Norris had previously ruled that the claimants did not meet the definition of an “insured person” in section 3(1) of the SABS, and therefore had no entitlement to accident benefits under the driver’s policy. The claimants requested Reconsideration of the decision. The claimants alleged that Adjudicator Norris erred in fact or law by failing to recognize the broad, consumer-protecting threshold of section 3(1). Adjudicator Norris disagreed, noting that while protections did exist, the claimants had no relation to the named insured (driver) as required by law to claim benefits, and as unfortunate as the event may have been, they were not entitled to claim accident benefits from the insured driver. The request for reconsideration was denied.

Amiri and Mireskandari v. The Co-operators (20-003296 & 20-003319)

The claimants made a claim for accident benefits following an incident in which they witnessed a vehicle strike a close family member (spouse and father-in-law, respectively). The incident was only a few feet in front of the claimant. The claimants heard the collision and witnessed the aftermath. The claimant alleged that they suffered psychological injuries. Because neither claimant had their own automobile insurance, they made a claim to the policy of the driver who struck the relative. Adjudicator Norris concluded that neither of the claimants were an “insured person” because they were not “a person who is involved in the accident involving the insured automobile”. The “insured person” definition in the SABS suggested that claims for nervous shock were limited to family members who qualified under section 3(1)(a)(ii).

L.M. v. The Co-operators General Insurance Company (19-003485)

The insurer sought reconsideration of the Tribunal’s decision that the claimant was an insured person as a dependent of his mother. Vice Chair Flude dismissed the reconsideration because the Tribunal’s decision had not finally disposed of the appeal. Rule 18.1 required that the insurer wait until the matters in dispute were finally disposed of. The preliminary decision did not finally determine the claimant’s entitlement to benefits.

Boyle v. Travelers Canada (19-014423)

The claimant was a witness to a fatal motor vehicle accident. He applied for accident benefits based on claims of psychological impairments as a result of rushing to the scene to assist following the collision. The insurer determined that the claimant was not an “insured” who was “involved” in an “accident” under s. 3(1) of the SABS and denied the claim for accident benefits. The claimant applied to the LAT for resolution of the dispute. Vice-Chair Boyce agreed with the insurer and found that the claimant was not an insured person involved in an accident under s. 3(1). The claimant was not entitled to accident benefits.

N.I.F. v. Certas Home and Auto Insurance Company (19-004334)

The claimant’s adult son was involved in a motorcycle accident and died as a result of the accident. A preliminary issue hearing was held to determine: (1) if the claimant was an “insured person” under the SABS at the time of the accident, and (2) whether the claimant was statute-barred from claiming benefits sought as she failed to commence a LAT proceeding within two years of the respondent’s denial. In this case, the claimant was the registered owner of the motorcycle involved in the accident that she bought for her son’s use, but the named insured on the policy was a friend of the claimant’s son. At the time of the accident, the claimant lived alone, received a disability benefit and was self-supporting. Adjudicator Conway dismissed the LAT dispute. She found that the claimant was not an “insured person” under the policy because she was not principally dependant on her son for financial support or care at the time of the accident.

N.F. v. Certas Direct Insurance Company (19-004334)

The claimant’s adult son was killed in a motor vehicle accident. The claimant’s son was a listed driver on the insurance policy of the motorcycle he was riding at the time of the accident. The named insured on the policy was a friend of the claimant’s son. The claimant was the registered owner of the motorcycle, but she had not driven the motorcycle since 2007. The claimant sought accident benefits based on a claim of psychological impairment as a result of her son’s death. The insurer denied the claim for accident benefits on the basis that the claimant was not an “insured person” under the motorcycle policy of insurance nor a dependant of the named insured on the policy. The key issue at the hearing was the determination of whether the claimant was an “insured person” under the SABS at the time of the accident. As the claimant was not a designated driver under the policy and not a spouse of the named insured, Adjudicator Conway found that the only way the claimant could be eligible for accident benefits was if she were a dependant of her son’s friend, who was the named insured under the policy. The claimant failed to establish that she was principally dependant on the named insured for financial support or care. The application was dismissed.