Ontario law requires your auto insurer to provide certain no-fault benefits in the event of a car accident, but this does not mean you can always expect your insurance company to pay these benefits without question. To the contrary, insurers often go to extraordinary lengths to justify denying a claim under Ontario’s Statutory Accident Benefits Schedule (SABS).
You may need to go through multiple levels of administrative appeals and judicial review just to receive the money you are entitled to by law.
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Security National Insurance Company v. Kumar: What Does it Mean to be a “Resident” of Ontario?
Here is a recent example that illustrates just how far an insurance company will go. On May 28, 2018, the Divisional Court of the Ontario Superior Court of Justice issued a ruling upholding an earlier decision by the Licence Appeal Tribunal (LAT) in favour of a car accident victim seeking statutory benefits. The LAT is usually the first place an accident victim will turn for review following an insurer’s decision to deny a claim.
In this case, the insurer’s rejection turned on the question of the applicant’s legal residency at the time of his accident.
Why does this matter? Because the accident itself occurred in Alberta, and under the SABS regulations, an insurer is only required to cover the insured driver (or occupant) of a vehicle “who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident” for an accident outside Ontario.
First, some backstory on the applicant: He is not a Canadian citizen. Rather, he is a native of India who lawfully entered Canada in May 2010 on a student visa. After graduating from university in Ontario, the applicant obtained a three-year work permit.
The applicant initially looked for office jobs in Ontario. In the interim, he accepted a friend’s invitation to work to make some money on the side as a truck driver in Alberta for a few months. The car accident took place about three months into the applicant’s Alberta employment.
The applicant sought statutory benefits from his insurance company. The insurer rejected the claim, arguing the applicant was not a resident of Ontario at the time of the accident or within the 60-day period preceding the accident. The applicant then filed an application with the LAT.
Insurance Company Misrepresents Accident Victim’s Facebook Posts
The insurance company based a good deal of its argument on the romantic relationship status of the applicant at the time of his accident. The applicant began dating a woman while at university. The couple later moved in together at an address in Ontario and announced their engagement.
Before the LAT, the insurance company actually introduced the applicant’s Facebook posts from around the time he left for his trucking job in Alberta. The posts indicated the applicant was feeling lonely. The insurer submitted this was proof the applicant and his fiancée broke up just before his departure.
This was important, the insurer claimed, since his relationship was the only thing keeping the applicant connected to his Ontario residency.
The applicant presented a substantially different account. Although the applicant and his fiancée did eventually end their relationship, he said that did not happen before he left for Alberta. Indeed, the applicant said his Facebook posts were meant to express his loneliness at being separate from both his family in India as well as his then-fiancée.
More to the point, the applicant submitted additional evidence supporting his contention that his relocation to Alberta was temporary and he always intended to maintain his legal residence in Ontario. For example, the applicant had (and has) an Ontario driver’s license. He also continuously maintained a cell phone with an Ontario-based number.
The adjudicator for the Licence Appeal Tribunal ultimately held that the applicant was an Ontario resident.
The Divisional Court Rejects Insurer’s Appeal
Not content to accept the LAT’s ruling, the insurance company appealed to the Divisional Court. But Justice Alison Harvison Young, writing for the Divisional Court, dismissed the appeal.
Setting aside the insurance company’s peering into the applicant’s social life, the substantive question for the Divisional Court was whether or not a person was considered an Ontario resident if he or she has been out of the province “for more than 60 days.”
The regulation states that a person is only insured for an accident outside of the province if he or she was “a resident of Ontario at any time during the 60 days before the accident.” Justice Harvison Young said she did not read this as “the maximum period during which a person can be out of Ontario while still falling within the definition of ‘insured person’.”
Instead, the judge noted that Canadian courts typically adopt a “flexible, context specific approach” when determining a person’s “ordinary” residence. The mere fact the applicant was not physically present in Ontario at the time of his accident does not, in and of itself, prove or disprove residency.
As discussed above, there was ample evidence supporting the applicant’s Ontario residency, including his still-active engagement, his driver’s license, and his stated intention to return to Ontario when his temporary work in Alberta ended.
One final note: The insurance company also raised the applicant’s “immigrant status” in an attempt to further discredit his residency status. The Divisional Court was having none of this. Justice Harvison Young noted the applicant entered Canada legally on a student visa, remained here legally on a work permit, and plans to remain in Ontario for “the longer term.”
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Get Help with an Accident Outside Ontario from a Toronto Car Accident Lawyer
It is unfortunate that anyone has to go through extensive judicial review just to receive what are supposed to be “no-fault” accident benefits. But as you can see from the case above, insurance companies will spare no effort when they think there is any sliver of hope for denying a statutory benefits claim.
That is why you need to work with an experienced Toronto car accident lawyer who understands the law just as well–if not better–than the insurance companies. If you need legal assistance or advice following an accident, contact the Preszler Law Firm today to schedule a free consultation.