



COURT OF APPEAL FOR ONTARIO

CITATION: Security National Insurance Co. v. The Wawanesa
    Mutual Insurance Company, 2014 ONCA 850

DATE: 20141127

DOCKET: C58798

Simmons, MacFarland and Benotto JJ.A.

BETWEEN

Security National Insurance Co.

Applicant (Respondent in Appeal)

and

The Wawanesa Mutual Insurance Company

Respondent (Appellant in Appeal)

Kevin D.H. Mitchell and Monica Cop, for the appellant,
    Wawanesa Mutual Insurance Company

J. Jason Kerr, for the respondent, Security National
    Insurance Co.

Heard and released orally:  November 20, 2014

On appeal from the order of Justice Morgan of the Superior
    Court of Justice, dated December 9, 2013.

ENDORSEMENT

[1]

This is an appeal from the judgment of Morgan J. setting aside the award
    of Arbitrator Robinson, dated April 30, 2012.  The issue in this case is whether
    or not Mr. Kibria was dependent on his son and daughter-in-law within the
    meaning of that term in the policy of insurance owned by his son. If he was
    principally dependent for financial support, Security National pays, if not,
    Wawanesa pays.

[2]

It is not disputed that
Miller v. Safeco Insurance Co.
(1985), 50
    O.R. (2d) 797 (Ont. C.A.) a decision of this court is the seminal case in this
    area. In
Safeco
, this court endorsed the decision of OBrien J. with
    one exception. The factors that must be considered are the amount and duration
    of the financial dependency, financial or other needs of the claimant and the
    ability to be self-supporting.

[3]

The essential issue here is the dependency of Mr. Kibria and whether or
    not at the time of the accident he was principally financially dependent on his
    son.  Arbitrator Robinson said he was.  Justice Morgan said he was not.

[4]

The issue of principal financial dependency is a question of fact, and
    absent palpable and overriding error the finding is entitled to deference on
    appeal.

[5]

It is clear from para. 10 of his reasons that Arbitrator Robinson
    applied the
Safeco
test. First, he considered the duration and the
    amount of the dependency and he found that that was from the time Mr. Kibria
    came to Canada in October 2006 to the date of the motor accident. He then
    turned to Mr. Kibrias needs and found that Mr. Kibria relied on his son and
    daughter-in-law for his personal needs and his financial needs. He considered
    Mr. Kibrias ability to earn income, the fact that he was 81 years of age and
    the fact that he looked after his grandchildren. He knew and was aware of the
    fact that Mr. Kibria had lived in Bangladesh and that he had property there.

[6]

The Arbitrator concluded, on the evidence before him, that for the
    duration of his time in Canada, Mr. Kibria was principally financially
    dependent.

[7]

The appeal judge found that Arbitrator Robinson erred in failing to
    account for the voluntary nature of Mr. Kibrias dependence on his son and
    daughter-in-law.  We disagree.

[8]

In our view, the Arbitrator made a factual determination of principal
    financial dependency premised on the unique circumstances of this case.  In our
    view, it was open to him to do so and his finding was a reasonable one.  We do
    not agree that the Arbitrator considered the VISA status in Canada as a new
    criteria to be added to the
Safeco
test.

[9]

The appeal is allowed and the decision of the appeal judge is set aside
    and the award of the Arbitrator is restored.

[10]

Costs
    below are set aside and to be agreed upon by the parties. Costs of the appeal
    to the appellant fixed at $15,000.00 inclusive of disbursements and applicable
    taxes.

Janet Simmons J.A.

J. MacFarland J.A.

M. L.
    Benotto J.A.


