On appeal from the Motions Court Judge, the Ontario Court of Appeal restored the Arbitrator’s decision finding that the Insured was not “principally dependent” on his mother for “care” as those terms were defined in a Regulation to the Ontario Insurance Act.

Oxford Mutual Insurance Co. v. Co-operators General Insurance Co., [2006] O.J. No. 4518, Ontario Court of Appeal

This was an appeal from the Motion Judge’s decision allowing an appeal of an Arbitrator’s decision finding that the Insured was not principally dependent on his mother for care when he was involved in a motor vehicle accident that left him quadriplegic. The Motions Judge had found that because the Insured was living with his mother, who had acted as his bail surety at the time of the accident, he was principally dependent on her for care.

The issue on appeal was which Insurer would be liable to the Insured for statutory accident benefits; his mother’s Insurer, the Applicant, or the Insurer of the vehicle that the Insured occupied at the time of the accident. The Ontario Insurance Act provided that the Insured’s first recourse was against his mother’s Insurer if he was dependent on her for financial support.

The Court of Appeal confirmed the Arbitrator’s finding that while the mother had some control over the Insured, he was not under her care. The mere fact of control over an individual’s conduct did not in all circumstances result in a relationship of dependent care.

In addition, the Court of Appeal held that the Arbitrator’s decision primarily involved a question of fact and ought to be given deference, unless it was clearly unreasonable.

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