Definition of “Dependent” Clarified under Statutory Accident Benefits Schedule

The court reviewed and clarified the definition of a “dependent” under the Statutory Accident Benefits Schedule.

Security National Insurance Co. v. Wawanesa Mutual Insurance Co., [2013] O.J. No. 5661, December 9, 2013, Ontario Superior Court of Justice, E.M. Morgan J.

Two insurers sought review of an arbitrator’s decision determining whether a person visiting Canada who had been struck by a vehicle was a “dependent’ under the Insurance Act and Statutory Accident Benefits Schedule. An uninsured victim can claim benefits from the driver’s insurer. A victim who is a “dependent” of an insured person must claim benefits from the insurer of the insured person he or she is dependent on.

The victim was an 81-year-old retiree from Bangladesh who was visiting and staying with family in Canada. He was self-supporting in Bangladesh but was unable to work while visiting Canada as his visa did not permit employment. He was providing some child care services to his family in Canada. The arbitrator found the victim was a dependent as he relied on his family in Canada for financial support. After going through a lengthy review of the law on when someone can be considered principally dependent for financial support, the court overturned the arbitrator’s decision.

The court explained that a holistic perception of dependent was required and a victim’s visa status was not a conclusive factor on the dependency analysis. The arbitrator erred in law by ignoring the victim’s ability to support himself which was one of the critical criteria for dependency. In this case, but for the insured’s voluntary visit to Canada, he was not dependent on the named insureds for financial support. In Bangladesh the insured had the resources to be entirely self-supportive. The arbitrator’s decision was set aside and the driver’s insurer was responsible for paying the statutory accident benefits arising out of the motor vehicle accident.

This case was digested by Djuna M. Field and edited by David W. Pilley of Harper Grey LLP.

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