Golam Kibria is a retired engineer with a mortgage-free home and 20 acres of farmland leased out to tenants. He’s obviously financially comfortable, but is he a dependant of his family when it comes to accident benefits under Ontario’s Insurance Act?
That was the question in Security National Insurance Co. v. The Wawanesa Mutual Insurance Co. Kibria, who came to Canada from Bangladesh in 2006 on a visitor’s visa, is seeking benefits under the Insurance Act after a car struck him on March 29, 2008. According to the act, if he’s a dependant of his family members in Canada, their insurer must pay; if he’s not, the driver’s insurance company is on the hook.
As Superior Court Justice Edward Morgan noted in his ruling last week: “An uninsured victim can claim accident benefits from the insurer of the driver that struck him, whereas a victim who is a ‘dependent’ of an insured person must claim accident benefits from that person’s insurer.”
The issue before Morgan was somewhat moot for Kibria because, as the judge noted, he would get his money either way. The question here was who would pay: Kibria’s family’s insurer, Security National, or that of the driver, Wawanesa Mutual. Private arbitrator Bruce Robinson had found Security National had to pay after deeming Kibria to be a dependant of his Canadian family. Security National appealed.
According to Morgan, Kibria, 81, had no income source in Canada and no longer received his pension from Bangladesh after coming here. Instead, he lived with his son and daughter-in-law and took care of his grandchildren while occasionally contributing to expenses such as groceries. According to submissions in the case, Kibria’s visa status prohibited him from working in Canada and therefore made him a dependant of his family.
Morgan, however, approached the issue differently.
“The evidence, however, was to the contrary once one looks behind the visit to Canada and examines Mr. Kibria’s life and assets in his native Bangladesh,” he wrote.
“Prior to his departure in 2006, he had been retired for eight to 10 years. He lived in a house that he owned without a mortgage or other encumbrance. He had a live-in servant, a government of Bangladesh pension as a retired engineer, and a 50-acre parcel of farm land which was 80-per-cent leased out to tenant farmers for an undetermined amount of rent.”
As such, Morgan found Kibria’s stay in Canada was a visit and a matter of personal choice.
“It cannot be the case that an injured person’s visa status is the beginning and end of the dependency analysis. All foreigners who come to Canada on a visitor’s visa are prohibited from working while in the country. That fact alone would not make a visiting billionaire a dependant of his Canadian hosts, even if his fortune were in foreign government bonds, or in foreign resource investments, that were not accessible here. If the visitor is here by choice, then any resulting dependency is ipso facto by choice.
“But for his voluntary visit to Canada, Mr. Kibria was not dependent on his son and daughter-in-law for financial support. In his home in Bangladesh, Mr. Kibria had the resources to be entirely self-supportive.”
As a result, Morgan set aside the arbitrator’s decision and determined Wawanesa Mutual would be on the hook for the accident benefits. In doing so, he noted the issue went beyond Kibria’s case to the broader public-policy consideration at stake.
“Indeed, not only was this conclusion incorrect, it was unreasonable,” he wrote in reference to the arbitrator’s finding on Kibria’s dependency.
“The insurance industry is concerned primarily with the management and allocation of risk. . . . In holding that a visitor to Canada is a ‘dependent’ of his insured Canadian family simply because of his visitor status, the arbitrator effectively exposed Canadian insurers to incalculable risks.”