C.A. Says Son In Mother’s “Control” Is Not Within Her “Care”, For SABS Purposes

In Oxford Mutual Insurance Company v. Co-operators General Insurance Company, released today, the Court of Appeal had to decide whether a claimant was “principally dependent” on his mother at the time of being injured in a motor vehicle accident. If he was, his mother’s insurer would be liable to pay statutory accident benefits. Otherwise, the insurer of the car in which he was a passenger at the time of his accident would have been responsible to pay the benefits.

(To be more precise, the Court was hearing an appeal on the “dependency” issue from a decision of Madam Justice Elizabeth Stewart, who had allowed an appeal from a ruling of arbitrator Guy Jones.)

Shortly before the 2002 MVA, the 22-year old claimant had been charged with assaulting his girlfriend. He had been released on bail, with his mother agreeing to act as a surety, to ensure that he did not contact the girlfriend. The terms of the order required the claimant to live with his mother, obey her rules, honour a curfew, etc. The claimant was otherwise largely independent, since he worked nights and did not see much of his mother.

Arbitrator Jones had concluded that the claimant was not principally dependent on his mother for care. Justice Stewart came to the opposite conclusion. She felt that the surety order meant that the mother was acting as a “constructive jailer” for the claimant and that this indicated that he was principally dependent on her for care.

The Court of Appeal restored the decision of the arbitrator and held that the claimant was not principally dependent on his mother at the time of the accident. In the course of its analysis, it made several observations that are of some general interest to those dealing with accident benefits claims:

  • the relevant time period for analyzing whether a person is “principally dependent” for care should be determined on a case by case basis, but should not be a “snapshot in time”, particularly in the cases of young adults, whose lives are in transition;
  • the mother’s status as a surety was only one factor to be considered; others included the provision of social, emotional and physical care;
  • given the special expertise of arbitrators in this field, unless their decisions are unreasonable, those decisions should be accorded deference by appeal courts.


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