Why a teen injured in a car crash in the US is eligible for accident benefits in Ontario

A 19-year-old man seriously injured in a vehicle accident in the United States is eligible to collect auto accident benefits under the auto policy of his sister, who lives in Ontario, because he was “principally dependent on his sister for care,” the Ontario Superior Court has ruled.

The court thus dismissed a court challenge by auto insurer Certas Home and Auto Insurance Company, which argued Stephane Okenge was self-sufficient at the time of his auto accident, and therefore not eligible for accident benefits coverage under his sister’s policy.

Certas challenged a finding by the Licence Appeal Tribunal that Okenge was principally dependent on his sister for care while he lived in Oklahoma on a basketball scholarship at the time of his accident.

“The [LAT] adjudicator considered and rejected Certas’ argument that Stephane was self-supporting,” Ontario’s Superior Court (Divisional Court) ruled in a decision released on Feb. 27.

“The adjudicator also compared the care provided to Stephane by his sister to the care provided to him by others and found that there was insufficient evidence that anyone else provided Stephane a similar level of care.”

Certas further argued a person who is dependant for care on another must be physically or mentally vulnerable.

But the Superior Court ruled otherwise, stating: “Stephane’s educational vulnerabilities, physical, emotional and social needs were factors that were considered by the adjudicator in reaching the conclusion that Stephane was dependent on his older sister for care.”

Background

Okenge moved from Uganda, where he lived with his mother, to Ottawa when he was 14 years old. The main purpose of his move was to attend Canada Topflight Academy for Basketball on a scholarship in Ottawa, where his older sister Gisele lived.

Okenge lived with Gisele for three months. Topflight’s scholarship policy has students billeting with a local family when school started, but Okenge frequently spent time at Gisele’s apartment.

Okenge attended high school in Oklahoma, again on a basketball scholarship. During the remainder of his high school years, he lived in Oklahoma with a billet family. He was ultimately recruited to attend York University in Nebraska on a basketball scholarship.

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While he was attending school in the United States, Okenge returned to live with Gisele over holidays, in the summer, to undergo a medical procedure, and during a portion of the COVID-19 pandemic.

He was living in a university student residence in Nebraska when he was involved in a vehicle accident on Oct. 23, 2022, which rendered him tetraplegic. The accident occurred in the U.S. He was 19 years old at the time and had no auto insurance.

Okenge made a claim for benefits under his sister Gisele’s auto insurance policy.

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Certas, Gisele’s auto insurer, denied the claim. Certas argued Okenge was not an insured person under the policy it issued to Gisele.

In a written decision, LAT found Okenge was principally dependant for care on his sister. On that basis, Stephane was determined to be an insured person under Gisele’s automobile policy.

The reasons why the LAT found he was independent included:

• Okenge’s needs evolved from when he was a 14-year-old boy to when he was a 19-year-old university student.
• Okenge had learning difficulties in school and suffered several injuries after moving to Canada.
• Gisele FaceTimed with Stephane multiple times a week, sometimes daily, to provide him guidance and support and to ensure he had what he needed.
• Okenge’s mother in Uganda was unable to provide him with frequent support and was mostly absent from his life in the years leading up to the accident.
• Okenge never lived independently in his own residence and never supported himself financially.
• Okenge was able to attend school away from home and function as a high-performance athlete with the main support of Gisele.

Certas went back to the LAT to have the decision reconsidered, but the written decision was upheld. Certas challenged this decision in Superior Court, which upheld LAT’s findings.

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.