Jubenville et al. v. Jubenville et al.
[Indexed as: Jubenville v. Jubenville]
Ontario Reports
Court of Appeal for Ontario,
Rosenberg, Gillese and Rouleau JJ.A.
May 8, 2013
115 O.R. (3d) 321 | 2013 ONCA 302
Case Summary
Insurance — Automobile insurance — Uninsured motorist coverage — Child injured in single-vehicle accident while passenger in her father's uninsured vehicle — Child entitled to benefit from uninsured motorist coverage in standard automobile insurance policy issued to her mother — Motion judge not erring in interpreting "insured" in s. 4.2.4 of policy as meaning insured person making claim rather than any insured person as defined under s. 4.2.2(c)(ii).
A., a five-year-old child, was injured in a single-vehicle accident that occurred while she was a passenger in a car owned by her father. Her father had not insured the vehicle. A.'s mother, who at the time of the accident was married to A.'s father, insured her own two vehicles under a standard automobile insurance policy issued by Economical. A. made a claim under the uninsured motorist provisions of that policy. Section 4.2.2(c)(ii) of the policy defines "person insured under the policy" as meaning, in respect of a claim for bodily injury or death, the insured and his or her spouse and any dependent relative of either, while an occupant of an uninsured automobile. The definition of "uninsured automobile" in s. 4.2.4 of the policy excludes "an automobile owned by or registered in the name of the insured or his or her spouse". On a motion for determination of a question of law, the motion judge held that "the insured" in s. 4.2.4 means the insured person making the claim, and not any insured as defined in s. 4.2.2. As A., the insured person making the claim, did not have an automobile or a spouse, her father's car was an "uninsured automobile" at the time of the accident and A. was entitled to benefit from the uninsured motorist coverage in the Economical policy. Economical appealed.
Held, the appeal should be dismissed.
"The insured" in s. 4.2.4 can have one of two meanings. It can have the same meaning as it does in s. 4.2.2(c)(ii) or it can mean only the insured person making the claim. Both interpretations are reasonable. Given that ambiguity, it was open to the motion judge to turn to interpretive principles in ascertaining the meaning of "the insured" in that context. The conclusion he reached was correct. The language of the Insurance Act, R.S.O. 1990, c. I.8 should be interpreted harmoniously with the scheme and object of the Act and the intention of Parliament. The purpose of the Act is to internalize the costs of driving so that they do not fall on the public purse. That principle militates in favour of interpreting the definition of "uninsured automobile" in a way that does not exclude dependent relatives of policy holders from access to insurance coverage. Moreover, any ambiguities in insurance contracts and legislation governing the extent of coverage should be resolved in favour of the insured. Finally, the motion judge's decision found support in the interests of fairness and public policy. Excluding from coverage a five-year-old child who had no control over the scope of her parents' insurance coverage would lead to an unjust result.
Cases referred to
July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129, [1986] O.J. No. 1101, 32 D.L.R. (4th) 463 (C.A.); McArdle v. Bugler (2007), 87 O.R. (3d) 433, [2007] O.J. No. 3614, 2007 ONCA 659, 229 O.A.C. 26, [2007] I.L.R. I-4643, 55 M.V.R. (5th) 28, 160 A.C.W.S. (3d) 711; [page322] Taggart (Litigation guardian of) v. Simmons (2001), 2001 CanLII 24003 (ON CA), 52 O.R. (3d) 704, [2001] O.J. No. 642, 197 D.L.R. (4th) 522, 141 O.A.C. 315, 26 C.C.L.I. (3d) 218, [2001] I.L.R. I-3962, 11 M.V.R. (4th) 25, 103 A.C.W.S. (3d) 828 (C.A.) [Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 206, 158 O.A.C. 197]; Wigle v. Allstate Insurance Co. of Canada (1984), 1984 CanLII 45 (ON CA), 49 O.R. (2d) 101, [1984] O.J. No. 3422, 14 D.L.R. (4th) 404, 6 O.A.C. 161, 10 C.C.L.I. 1, [1985] I.L.R. Â1-1863 at 7152, 30 M.V.R. 167, 29 A.C.W.S. (2d) 56 (C.A.) [Leave to appeal to S.C.C. refused [1985] 1 S.C.R. v, [1985] S.C.C.A. No. 135]; Wing v. 1198281 Ontario Ltd., 2006 CanLII 42263 (ON SC), [2006] O.J. No. 5040, 46 C.C.L.I. (4th) 154, [2007] I.L.R. I-4573, 41 M.V.R. (5th) 320, 153 A.C.W.S. (3d) 1228 (S.C.J.)
Statutes referred to
Insurance Act, R.S.O. 1990, c. I.8, ss. 224 [as am.], (1) [as am.], 265 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 22, 22.01
APPEAL from the order of Thomas J., [2012] O.J. No. 5201, 2012 ONSC 5678 (S.C.J.) on a motion for a determination of a question of law.
Lauren Bloom and Jennifer McGlashan, for appellant Economical Mutual Insurance Company/Economical Compagnie Mutuelle d'Assurance.
Michael Stocks, for appellant Superintendent of Financial Services.
Laura Pearce, for respondents.
The judgment of the court was delivered by
ROULEAU J.A.: —
Overview
[1] This is an appeal from the motion judge's finding that the respondent Ashley Jubenville is entitled to benefit from the uninsured motorist coverage in the standard automobile insurance policy issued to Kelly Jubenville by the appellant Economical Mutual Insurance Company ("Economical").
[2] The motion judge's decision came as a result of a motion for the determination of a question of law in the form of a special case brought pursuant to rule 22.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The question of law put to the motion judge was:
Was the Mercury Cougar, owned by, registered to and driven by Kevin Jubenville on the date of the accident an "uninsured automobile" as [page323] defined in the O.P.F. 1,[^1] s. 265 of the Insurance Act and under policy number 9556129?
[3] If the Mercury Cougar did not fall within the definition of an "uninsured automobile", and therefore this question was answered in the negative, Ashley would be denied recovery under the policy. The motion judge held that the Mercury Cougar did qualify as an uninsured automobile, thereby entitling Ashley to claim pursuant to the uninsured provisions in the policy.
Facts
[4] The respondent Ashley Jubenville was five years old when she was injured in a single-vehicle motor vehicle accident that occurred on May 23, 1993. At the time of the accident, Ashley was a passenger in a Mercury Cougar owned by, registered in the name of, and driven by her father, the appellant Kevin Jubenville.
[5] The other respondent, Kelly Jubenville, is Ashley's mother and, on the day of the accident, was Kevin's spouse. Kelly insured her two vehicles under a standard automobile insurance policy issued by the appellant Economical. Kelly did not insure Kevin's Mercury Cougar. For the purposes of the motion, the parties agreed that Kevin's vehicle was not otherwise insured.
[6] Kelly's insurance policy and s. 265 of the Insurance Act, R.S.O. 1990, c. I.8, as amended to 1993, contained nearly identical terms relating to uninsured automobile coverage.[^2] The terms in Kelly's insurance policy were as follows:
4.1 The insurer agrees to pay all sums that,
4.1.1 a person insured under the Policy is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury resulting from an accident involving an automobile;
4.2.2 "person insured under the policy" means,
(c) in respect of a claim for bodily injury or death,
(ii) the insured and his or her spouse and any dependent relative of either,
- while an occupant of an uninsured automobile, . . . [page324]
4.2.4 "uninsured automobile" means an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse.
(Emphasis added)
[7] Although "insured" is not defined in s. 265 of the Insurance Act or in the policy, it is defined in s. 224(1) of the Insurance Act, as amended to 1993, as follows:
224(1) In this Part, . . .
"insured" means a person insured by a contract whether named or not and includes every person who is entitled to no-fault benefits under the contract whether or not described therein as an insured person.[^3]
Section 265 is in the same part of the Insurance Act as s. 224.
[8] The Rule 22 motion ultimately turned on the proper interpretation of "the insured" in the exclusionary phrase contained at the end of the definition of "uninsured automobile" in s. 4.2.4 of the policy. This phrase excludes "an automobile owned by or registered in the name of the insured or his or her spouse" (emphasis added) from being considered as an "uninsured automobile".
[9] If "the insured" in this section means either the owner of the policy (Kelly) or all those who are insured under the policy (which would include Kelly), Ashley would be denied access to coverage by the exclusionary language in the definition of "uninsured automobile". This is because at the relevant time, Kelly, the insured, was the spouse of the owner of the uninsured vehicle, Kevin.
[10] Alternatively, if "the insured" referred only to the person making the claim, in this case Ashley, then the automobile would qualify as an uninsured automobile and Ashley would be entitled to recover under the policy. This is because Ashley did not own the uninsured vehicle and, at five years old, had no spouse.
[11] The motion judge accepted the second interpretation, i.e., that "the insured" referred to the person making the claim. As a result, he held that Kevin's Mercury Cougar was an "uninsured automobile" within the meaning of Kelly's policy and s. 265 of the Insurance Act and that Ashley was therefore able to claim under the policy. [page325]
Issue on Appeal
[12] The appellant submits that the motion judge erred in law when he determined that the Mercury Cougar, owned by, registered in the name of, and driven by Kevin on May 23, 1993 was an "uninsured automobile" as defined in Kelly's policy and s. 265 of the Insurance Act.
The Appellant's Position
[13] The appellant argues that in order to obtain coverage under Kelly's insurance policy, Ashley must fulfill two requirements. First, Ashley must come within the definition of a "person insured under the policy" in s. 4.2.2(c)(ii). She must therefore be "the insured", "his or her spouse", or a "dependent relative of either". The appellant concedes that Ashley qualifies under this first part because she was a dependent of Kelly, who is the insured, at the time of the accident.
[14] Second, Ashley must have been an "occupant of an uninsured automobile". However, the definition of an "uninsured automobile" in s. 4.2.4 expressly excludes "an automobile owned by or registered in the name of the insured or his or her spouse". Here, Kevin owned the Mercury Cougar and it was registered in his name. Kevin was Kelly's spouse. Because Kelly was "the insured", the Mercury Cougar was excluded from the definition of an "uninsured automobile".
[15] In the appellant's view, therefore, the motion judge erred in his interpretation of "the insured" in the context of "a vehicle owned by or registered in the name of the insured or his or her spouse". "The insured" referred to in the definition of "uninsured automobile" in s. 4.2.4 should not, as the motion judge held, be restricted to only Ashley. Defining "the insured" as being limited to the person bringing the claim is a novel conclusion at law unsupported by the authorities and, in the appellant's submission, would lead to an absurd result.
[16] Even if a broader definition of "the insured" is adopted and Ashley is taken to be one of "the insured" persons under the policy, in order to find for the respondents, the court would still have to conclude that Kelly -- the named insured -- was not one of "the insured" under the policy for the purposes of s. 4.2.4. Otherwise, the statutory exclusion will apply. The appellant argues that defining "the insured" as excluding the named insured in the policy could not have been intended by the drafters of the statute. The definition of "the insured" throughout the section, both in s. 4.2.2(c)(ii) and in s. 4.2.4 should be consistent and, at a minimum, include the named insured under the policy. [page326]
[17] This interpretation is, in the appellant's submission, consistent with this court's decisions in Taggart (Litigation guardian of) v. Simmons (2001), 2001 CanLII 24003 (ON CA), 52 O.R. (3d) 704, [2001] O.J. No. 642 (C.A.), leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 206, 158 O.A.C. 197, and McArdle v. Bugler (2007), 87 O.R. (3d) 433, [2007] O.J. No. 3614, 2007 ONCA 659. In those decisions, the court determined that the phrase "the insured" as it appears in s. 4.2.2(c)(ii) was to be interpreted broadly and include all those who come within the definition of "insured" provided in s. 224(1) of the Insurance Act. "The insured" therefore includes "every person who is entitled to no-fault benefits under the contract". As a result, "the insured" that appears in the definition of "uninsured automobile" must encompass the complete class of persons entitled to statutory accident or no-fault benefits under the Act, and not just the person making the claim.
[18] Finally, the appellant submits that the motion judge failed to consider the complete contractual and statutory context of the section. Specifically, the appellant argues that had the legislature intended only to exclude uninsured vehicle owners and their spouses from coverage under the uninsured automobile provisions, and not other parties, it would have drafted an exclusion which depended on the identity of the claimant. For example, s. 4.3 of the policy does precisely that. It makes reference to the identity of a potentially covered person in relation to the qualification of a dependent relative in the following terms:
4.3 Qualification of Dependent Relative -- Where a dependent relative referred to in section 4.2.2(c) is the owner of an automobile insured under a contract, or sustains bodily injury or dies as the result of an accident while the occupant of his or her own uninsured automobile, such dependent relative shall be deemed not to be a dependent relative for the purposes of this Part.
Therefore, the intent of the legislature is made clear by reference to the surrounding provisions in the statute.
Analysis
[19] In my view, the appeal should be dismissed and the decision of the motion judge upheld.
[20] This court's decisions in Taggart and McArdle confirm that the broad definition of "insured" in s. 224(1) applies to s. 265. As a result, the reference in s. 4.2.2(c)(ii) of the policy to "the insured" includes Ashley, because she comes within the definition in s. 224.
[21] When "the insured" is used again in the definition of "uninsured automobile" in s. 4.2.4, it can have one of two meanings. It can, as the appellant submits, have the same meaning as [page327] it does in s. 4.2.2(c)(ii), that is, all persons coming within the definition of "insured" in s. 224. This would, at a minimum, include Kelly as the named insured. Alternatively, it could, as the motion judge found, mean only the insured person making the claim. Both interpretations are reasonable.
[22] Given this ambiguity, it was open to the motion judge to turn to interpretive principles in ascertaining the meaning of "the insured" in this context. The conclusion he reached is, in my view, the correct one. I say so for three reasons.
[23] First, the language of the Insurance Act should be interpreted harmoniously with the scheme and object of the Act and the intention of Parliament. As the motion judge noted, the purpose of the Insurance Act is to internalize the costs of driving so that they do not fall on the public purse. This principle militates in favour of interpreting the definition of "uninsured automobile" in a way that does not exclude dependent relatives of policy holders from access to insurance coverage. In Wing v. 1198281 Ontario Ltd., 2006 CanLII 42263 (ON SC), [2006] O.J. No. 5040, 46 C.C.L.I. (4th) 154 (S.C.J.), Brown J. came to a similar conclusion. In that case, he was interpreting a fleet policy of insurance where there are often many insured in the one policy. In explaining why he interpreted the equivalent of s. 4.2.4 in the same way as the respondents in this case, Brown J. stated, at para. 22, that to
. . . reduce the number of persons covered by the uninsured automobile provisions of a policy, especially in cases involving fleet policies of insurance, and require more claimants to look to the Fund for compensation . . . would run counter to the intent of the Act to internalize the costs resulting from injuries caused by uninsured automobiles.
[24] Second, a principle of interpretation specific to insurance contracts and legislation is that any ambiguities in provisions governing the extent of coverage should be resolved in favour of the insured: see Wigle v. Allstate Insurance Co. of Canada (1984), 1984 CanLII 45 (ON CA), 49 O.R. (2d) 101, [1984] O.J. No. 3422 (C.A.), at p. 116 O.R., leave to appeal to S.C.C. refused [1985] 1 S.C.R. v, [1985] S.C.C.A. No. 135; July v. Neal (1986), 1986 CanLII 149 (ON CA), 57 O.R. (2d) 129, [1986] O.J. No. 1101 (C.A.), at p. 135 O.R. This principle also supports the motion judge's conclusion.
[25] Finally, the motion judge's decision finds support in the interests of fairness and public policy. Excluding an individual like Ashley from coverage leads to an unjust result. Ashley, at five years old, had no control over the scope of her parents' insurance coverage. Even accepting that the goal of the exclusionary phrase is to prevent individuals from relying on uninsured automobile coverage instead of insuring each of their vehicles, such a goal would not be undermined by the interpretation given to the [page328] section by the motion judge. The motion judge's interpretation makes certain that people who are responsible for insuring their vehicles and their spouses will be penalized for failing to insure each vehicle they own. This is achieved by disentitling the claimant and his or her spouse from any claim under the uninsured coverage whenever one or the other is the owner of the uninsured vehicle. Those who have no control over coverage decisions, such as dependent relatives, will nonetheless be entitled to make a claim.
[26] As to the appellant's submission that s. 4.3, "Qualification of Dependent Relative", indicates that the legislature intended that "the insured" in the definition of "uninsured automobile" be given a broader interpretation, I disagree. Section 4.3 adds little to the interpretation exercise. The fact that the legislature chose in s. 4.3 to specifically disqualify a dependent relative from making a claim where the dependent relative is the occupant of "his or her own uninsured automobile" is in fact consistent with the respondents' interpretation. Had the legislature wished to disqualify dependent relatives who were occupants of uninsured automobiles owned by their parents, it would have drafted s. 4.3 to do so. By limiting the exclusion in s. 4.3 to dependent relatives who themselves own the uninsured automobile, the legislator is, by omission, indicating that dependent relatives who do not own the uninsured automobile should not be excluded.
Conclusion
[27] For these reasons, I would dismiss the appeal. The parties have agreed that there should be no costs of the appeal.
Appeal dismissed.
[^1]: "O.P.F. 1" stands for "Ontario Automobile Policy Form 1". [^2]: The Insurance Act uses the term "contract" in place of "policy". These reasons will use the section numbers from the relevant insurance policy, rather than those found in s. 265 of the Insurance Act. [^3]: The words "no-fault benefits" have since been replaced by "statutory accident benefits".