DATE: 20040907

DOCKET: C41493

COURT OF APPEAL FOR ONTARIO

RE:

HERBERT WOOD, PHYLLIS WOOD and TRINA WOOD (Plaintiffs) – and – UWE KREBS, SARA KREBS and RUSSELL KREBS also known as NATHAN KREBS (Defendants/ Respondent) – and – UNIFUND ASSURANCE COMPANY (Third Party/Appellant)

BEFORE:

LABROSSE, MacPHERSON and CRONK JJ.A.

COUNSEL:

John F. Graham

for the appellant

Marvin M. Cohen

for the respondent Russell Krebs

HEARD AND ENDORSED:

September 3, 2004

On appeal from the order of Justice Dennis G. Lane of the Superior Court of Justice dated February 13, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] We agree with the motions judge’s conclusions that the policy is ambiguous and that reading the ambiguity in favour of the insured, there are two separate households. We also agree with the motions judge that “the nature of the use for which the property is suitable” must be taken into account.

[2] The motions judge took into account Russell’s pattern of usage, how it compared with his parents’ usage, the fact that he kept his belongings in his room at the cottage, his contribution to the “cottage community” and the fact that he used the cottage by entitlement and not by invitation.

[3] Given that the question before the motions judge was one of mixed law and fact, deference is owed to his finding that Russell was a member of the household. We see no overriding and palpable error. Accordingly, the appeal is dismissed.

[4] Costs to the respondent fixed at $10,000, all inclusive.