Category: Insured Person

Gayle v. TD General Insurance Company (22-0050088)

The claimant’s husband was allegedly struck by a vehicle insured by the insurer on December 8, 2020. The claimant and her husband were not insured. The claimant sought accident benefits for psychological injuries resulting from the incident. The insurer denied her claim, stating she is not an “insured person” under section 3(1) of the SABS and raised a preliminary issue of whether the claimant was an insured person involved in the “accident” as per the SABS. The insurer argued that accident benefits only extend to named insureds, specified drivers, spouses, or dependents of the named insured under s. 3(1), and since the claimant did not fall into any of these categories, she was not covered. The claimant contended that she should qualify based on her husband’s catastrophic impairment and that excluding spouses of insured individuals from coverage would be discriminatory. The LAT ruled that the definition of an “insured person” under section 3(1) is clear and applies only to those explicitly named on the policy. In answer to the question of whether the claimant was involved in an accident involving the insured vehicle, the LAT concluded that the claimant was neither involved in nor witnessed the accident and that her impairments were causally connected to caring for her injured husband, rather than the accident itself. As such, the claimant was found ineligible for accident benefits, and her application was dismissed.

C. B., T.G.B. and B.G.B v Belair Direct Insurance Company (22-002265)

The issue revolved around the family of the accident victim, JG, who was deemed psychologically catastrophically impaired as a result of witnessing her friend being struck and killed by a vehicle. JG’s spouse and children applied for accident benefits claiming they had suffered psychological injury as a result of JG’s psychological impairments. The claimants applied under the definition of an “insured person” pursuant to section 3(1)(a)(ii) of the SABS. The insurer contested this, noting that JG did not sustain a physical injury in the accident. The claimants submitted various evidence regarding the alleged psychological injuries that they had sustained post-accident; however, Adjudicator Kaur was unable to find any specific diagnosis or clear indication of psychological injury in the records. The records of the accident victim, JG, detailed various psychological issues, but the medical evidence provided did not make reference to an objective physical injurie sustained as a direct result of the accident. Adjudicator Kuar concluded that as JG did not sustain any physical injury in the accident, the claimants were not considered to be insured persons pursuant to the SABS. The Application was dismissed.

D.I. v. TD General Insurance Company (19-013437)

The claimant was a minor whose father was involved in an motor vehicle accident. The claimant was autistic and was largely cared for by his mother. The father and mother separated years prior to the accident. The father was a listed driver on his mother-in-law’s insurance policy with TD. The claimant applied for accident benefits under the TD policy. TD argued that he was not entitled to benefits as he was not an insured person in relation to the TD insureds, and due to the lack of evidence that the father’s accident caused the claimant a psychological injury. Adjudicator Lake found that the claimant did not prove a psychological injury caused by the accident. The medical records submitted showed that the claimant’s function was largely the same before and after the accident. Adjudicator Lake also found that the claimant was not principally dependent for care or for financial assistance by the TD insured. Instead, it was the claimant’s mother who the claimant was principally dependent for both care and financial assistance.

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.

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