Hindley v Dominion of Canada General Insurance Company, 2013 ABQB 130

Court of Queen ’ s Bench of Alberta Citation: Hindley v Dominion of Canada General Insurance Company, 2013 ABQB 130 Date: 20130227 Docket: 0801 12751 Registry: Calgary Between: Erin Lee Hindley Plaintiff - and - Dominion of Canada General Insurance Company Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] A

summary trial was heard by me to determine whether the SEF 44 Endorsement in an Insurance Policy provided coverage to a daughter, when the mother held the policy and her daughter was injured in an automobile accident. The issue was whether the daughter, because of full time attendance at College, was at the time of the accident, principally dependent upon her mother for financial support. I provided a written decision on that issue in Reasons issued in this Action on December 7, 2012.

In that decision I directed that the parties had leave to call evidence as to whether from the time the daughter moved in with her mother in March 2006, to the time of the accident the daughter had been principally dependent on her mother for financial support.

[ 2 ] The Plaintiff daughter elected to put evidence before me by way of affidavits from her and her mother. The mother’s affidavit contained an opinion from an economist that the value of services provided by the mother during the time the daughter resided with the mother was between $6,460 and $7,355. The mother further deposed to having provided money for the daughter’s expenses in the additional amount of $2,640.00, from the time the daughter began living with her to the date of the accident; for a total contribution by the mother of between $9,000 and $9,995.

Both mother and daughter were cross-examined on their affidavits and the transcripts of those cross examinations were placed into evidence. The defendant elected not to call any further evidence of its own. It challenged the admissibility of the economist’s evidence as it was not in a proper form for expert evidence, nor in an affidavit, such that the defendant had no opportunity to cross-examine the economist. [ 3 ] I indicated that I would review the evidence presented.

In the event that I considered that, taking the economist’s evidence at face value, the Plaintiff would satisfy the test set out in my previous written decision, I would allow the defendant to cross-examine the expert and to put forth any responding expert evidence it wished to call in response.

However, if on the assumption that the economist’s expert evidence was correct, the Plaintiff nevertheless failed to meet the test, then there would be no necessity for the defendant to cross-examine or put forth contesting expert evidence. [ 4 ] The Plaintiff provided no evidence as to how much money she had saved from employment for the purpose of attending college. She called no evidence as to the cost of tuition, books, rent, or indeed any expenses incurred at college.

Her evidence was that, during the period from when she began living with her mother to the time of the accident, she earned income, net of deductions and taxes, of $10,134.00. [ 5 ] She also gave evidence during cross-examination on her affidavit that she had taken out a student loan of $5,000.00 for that year of her education and that she had since paid back that loan. [ 6 ] Accordingly, the Plaintiff’s contribution to her financial support from March 2006 to the date of the accident was her income of $10,134 and the proceeds of a student loan taken out by her of $5,000.00. [ 7 ] The Plaintiff’s earnings alone exceed the best case scenario put forth by the Plaintiff as the value of her mother’s contributions.

However, the Plaintiff says that, during her 6 months’ employment she spent approximately $500 per month on expenses such as clothing and entertainment. She argues that amount should be deducted from an assessment of her financial contribution to her support. [ 8 ] I disagree. The definition in SEF 44 calls for a determination of financial support. That means support for all of her expenses during the relevant period of time. It is not proper to deduct some personal expenses of the Plaintiff from her contribution, yet deduct nothing from the mother’s contribution.

All of the monies earned by the daughter were used for her financial support, as were the contributions of the mother. [ 9 ] Additional to the financial contribution by the Plaintiff is the student loan which she took out in the amount of $5,000. In doing so, the Plaintiff personally undertook to repay that loan and incurred a liability to do so.

The proceeds from that loan, in my view, are further contributions by the Plaintiff for her financial support during the relevant period of time, and so must be placed on her side of the ledger when calculating whether principal dependency has been proven. [ 10 ] Accordingly, I find that the Plaintiff has failed to prove that she was principally dependent upon her mother for financial support. The Plaintiff’s claim against the defendant is therefore dismissed. [ 11 ] Counsel may speak to me regarding costs of the action. Heard on the 22nd day of February, 2013.

Dated at the City of Calgary, Alberta this 27th day of February, 2013. R. J. Hall J.C.Q.B.A. Appearances: Richard Edwards of Pipella Law for the Plaintiff Don Dear, Q. C. of McLennan Ross LLP for the Defendant Scott Cozens of Cozens Wiens LLP for the Intervener ICBC