“Dependent Relative” Under the OPCF 44R: Where Does the Plaintiff “Reside”?
In Chaboyer et al v. Gill et al, 2022 ONSC 3452, the Court analyzed the details of the plaintiff’s living circumstances to determine whether she could be classified as an “eligible claimant” and make a claim pursuant to an OPCF 44R Family Protection Endorsement in an insurance policy held by her mother.
Facts
The plaintiff was injured while riding as a passenger on a motorcycle after the motorcycle was rear-ended. The plaintiff did not have her own car insurance at the time of the collision. The defendant, Unifund Assurance Company (“Unifund”), issued an insurance policy to the plaintiff’s mother which contained an OPCF 44R Family Protection Endorsement. The Endorsement provided coverage if an eligible claimant is considered a “dependent relative” of the named insured and his or her spouse.
All parties were in agreement that the only possible operative provision of the Endorsement was section 1.2(c), which provided protection to:
c) a relative of the named insured or of his or her spouse, who resides in the same dwelling as the named insured
Unifund argued that the plaintiff was not an insured under the OPCF 44R Endorsement, and sought an Order granting summary judgment to dismiss the plaintiff’s claim against Unifund. Unifund also sought declarations that it was not required to respond to the plaintiff’s claim, that the plaintiff was not insured under the OPCF 44R, and that the plaintiff was not an eligible claimant nor a dependent relative under the OPCF 44R.
Issue
The key issue decided on the motion was whether the plaintiff resided, at least in part, with her mother in Scarborough, Ontario.
Analysis
The Court noted that the ordinary rules of contract interpretation apply to insurance policies. As such, the Court must first review the clear language used in contract. Where there is ambiguity, the Court is to consider the reasonable expectations of the parties, and any ambiguity is to be resolved against the insurer.
In addition, the Court noted that the inequality with regards to the bargaining power between a motorist and the insurer must be considered, and clauses providing coverage ought to be liberally interpreted in favour of the insured, and clauses excluding coverage ought to be interpreted narrowly and, where there is any ambiguity, against the insurer’s interests.
The plaintiff testified that she had resided in her own apartment alone for 12 years and worked as a bartender. She stated that she had been taking care of her mother for 14 years due to health issues. The plaintiff would attend her mother’s address 2-3 days a week, sometimes staying overnight. There was no set schedule for the plaintiff to attend her mother’s residence, but the plaintiff did not typically stay for consecutive nights.
The plaintiff used her own apartment’s address to receive mail and for all other identifying documentation. The plaintiff kept some belongings at her mother’s house, but the majority of her personal items were left at her own apartment.
The Court reviewed the relevant jurisprudence, which included Harris (Litigation Guardian of) v. Pilot Insurance Co., (1997) 1997 CanLII 4436 (ON CA), 34 O.R. (3d) 633 (C.A.). In that case, the Court reviewed the word “reside”, recognizing that in some situations a person may have two residences at the same time.
In addition, the Court reviewed the principles of interpretation in Gardiner v. MacDonald Estate, 2015 ONSC 227, wherein the Court concluded that section 1.2 (c) of the OPCF 44R did not require the “eligible claimant” to be financially dependent on the named insured.
The Court in Gardiner further stated that where a relative has a pattern of living at more than one location at the time of the accident and proves that one of the residences is that of the named insured, coverage is afforded under the OPCF 44R Endorsement. In determining whether an individual qualifies as a dependent relative, it is necessary to consider the factual intentions of the individuals involved regarding the attachment of the relative to the household.
Conclusion
While the Court accepted that it is possible for a person to have more than one residence, it was concluded that the plaintiff did not reside, even in part, in the same dwelling as her mother on the date in question.
The key facts in coming to this conclusion included that the plaintiff stated during her examination that she considered her own apartment to be her one and only residence; that she lived alone and not in-between two residences; all mail and documentation was forwarded to her own apartment; she was listed on her mother’s tenant insurance; she did not pay rent to her mother; and the majority of her belongings were primarily at her apartment rather than her mother’s residence.
Furthermore, both the plaintiff and her mother did not refer to her mother’s home as the plaintiff’s residence during examinations. There appeared to be a mutual understanding between the plaintiff and her mother that despite occasionally staying over and caring for her mother regularly at her mother’s home, the majority of the plaintiff’s activities were carried out at her own apartment.
Even though the plaintiff returned to her mother’s residence on a regular basis to assist with her care (sometimes spending the night), the Court concluded that such activities did not make her mother’s home the plaintiff’s residence. It was clear that the plaintiff enjoyed a routine of life at her own separate address.
The Court concluded that there was no genuine issue for trial that would require Unifund to remain a part in the action. As such, the motion for summary judgment was granted and the action was dismissed against Unifund.
Takeaway
It is possible for an individual to reside at more than one location, and even be financially independent, and still be eligible for coverage under a relative’s claiming under an OPCF 44R Endorsement, as long as one of the locations the individual resides at is the relative who is the named insured on the applicable automobile insurance policy.
However, in order to determine where an individual resides for the purposes of coverage under the OPCF 44R Endorsement, the Court will consider the factual intentions of the individuals involved regarding the attachment of the individual seeking coverage to his or her relative’s household.
In cases involving a claim for coverage under a relative’s OPCF 44R Endorsement, areas that should be explored in detail at examinations for discovery (or examinations under oath) include a detailed examination of: the time spent between the two residences; how the claimant views the residence; whether the claimant pays rent; where belongings are kept; where the claimant sleeps; where the claimant’s pets are located; where mail is delivered; and where the claimant performs the majority of their household tasks such as laundry and cooking.