Skunk v. Ketash

[Indexed as: Skunk v. Ketash]

Ontario Reports

Court of Appeal for Ontario Rouleau, L.B. Roberts and Fairburn JJ.A.

May 14, 2018

142 O.R. (3d) 77 | 2018 ONCA 450

Case Summary

Insurance — Automobile insurance — Uninsured automobile coverage — Plaintiff injured while passenger in vehicle owned by his wife and driven by uninsured defendant without wife's permission — Statutory and contractual definition of "uninsured automobile" unambiguously excluding automobile owned by insured or his or her spouse — Vehicle in question not uninsured vehicle.

The plaintiff was injured in an accident which occurred while he was a passenger in a vehicle owned by his wife and driven by the uninsured defendant without the consent of the plaintiff or his wife. The vehicle was insured by Jevco. The plaintiff claimed to have been injured by an uninsured driver. Jevco denied coverage, claiming that the vehicle in question was not an "uninsured automobile" because it was owned by the plaintiff's spouse. On a motion for a determination of a question of law, the motion judge agreed with Jevco. The plaintiff appealed.

Held, the appeal should be dismissed.

Section 265 of the Insurance Act, R.S.O. 1990, c. I.8 and the standard automobile policy provide that an "uninsured automobile" does not include "an automobile owned by or registered in the name of the insured or his or her spouse". The motion judge did not err in finding that those provisions are clear and unambiguous and that the vehicle in question was accordingly not an uninsured vehicle.

Cases Referred To

• Chilton v. Co-Operators General Insurance Co., 32 O.R. (3d) 161
• Jubenville v. Jubenville, 2013 ONCA 302, 115 O.R. (3d) 321
• R. v. Clarke, 2013 ONCA 7, 115 O.R. (3d) 75

Statutes Referred To

Insurance Act, R.S.O. 1990, c. I.8, s. 265(2)

Rules and Regulations Referred To

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01

Appeal

APPEAL from the judgment of F.B. Fitzpatrick J. of the Superior Court of Justice (2017), 139 O.R. (3d) 391, [2017] O.J. No. 4896, 2017 ONSC 4457 (S.C.J.).

Edward S.E. Kim, for appellant.

Alex W. Demeo, for respondent Jevco Insurance Company.

Decision

[1] BY THE COURT: -- This is an appeal from the determination of a legal question under rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, resulting in the dismissal of the appellant's claim against the respondent insurer. The appellant was a passenger in his spouse's vehicle when it was taken without consent by an uninsured driver, Laurel Ketash. The vehicle was then involved in an accident and the appellant was injured.

[2] The motion judge determined that the appellant's spouse had no applicable and collectible bodily injury liability insurance because Ms. Ketash was driving the vehicle without the owner's consent. He concluded that because the appellant's spouse owned the vehicle, he was excluded from uninsured automobile coverage under the Insurance Act, R.S.O. 1990, c. I.8, the Ontario Automobile Policy ("OAP") and the OPCF 44R Family Protection Coverage endorsement.

[3] Section 265(2) of the Insurance Act provides the following definition of "uninsured automobile":

"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.

[4] Section 5.1.2 of the applicable insurance policy includes a similar exception to the "uninsured automobile" coverage: "this does not include an automobile owned by or registered in the name of the insured person or their spouse". Section 1.11 of the OPCF 44R Family Protection Coverage reads in virtually identical terms: an "uninsured automobile . . . does not include an automobile owned by or registered in the name of the insured or his or her spouse".

[5] The motion judge found no ambiguity in the plain language of the statute or the contractual policies at issue and concluded that the language is clear on its face.

[6] The appellant maintains that the motion judge erred in his interpretation of the provision. He argues that the exception to "uninsured automobile" insurance must be afforded a purposive interpretation. It was never intended to preclude insurance for a person injured while in their spouse's properly insured motor vehicle, only because that vehicle has been taken without consent of the spouse. He submits that any other interpretation would lead to an absurd result, as exemplified by the facts of this case. He relies upon this court's judgment in Jubenville v. Jubenville, 2013 ONCA 302, 115 O.R. (3d) 321, to advance this argument.

[7] We disagree.

[8] The principles of statutory interpretation require that the court first look to the plain meaning of the statute. If the words have a plain meaning and give rise to no ambiguity, then the court should give effect to those words: R. v. Clarke, 2013 ONCA 7, 115 O.R. (3d) 75, at para. 18. We conclude that the meaning of the definition of "uninsured automobile" under s. 265(2) is clear and unambiguous: "an 'uninsured automobile' means . . . but does not include an automobile owned by or registered in the name of the insured or his or her spouse" (emphasis added).

[9] As a general rule, clauses in insurance policies will be granted a liberal meaning "in favour of the insured and those clauses excluding coverage [will be] construed strictly against the insurer": Chilton v. Co-Operators General Insurance Co., 32 O.R. (3d) 161, at para. 19. The difficulty here is that the provision, virtually identical to the wording of the same definition of "uninsured automobile" under s. 265(2), is clear on its face. In order to arrive upon the appellant's interpretation of the provision, it would be necessary to read words into the provision. The provision would have to be interpreted as meaning that an "uninsured automobile . . . does not include an automobile owned by or registered in the name of the insured or his or her spouse, [but only where the insured or his or her spouse has deliberately chosen not to insure the vehicle]". As this court noted in Chilton, at para. 20, "[r]eading the words out of an insurance policy or giving the words an opposite meaning is not synonymous with a liberal interpretation". The same can be said for adding the phrase that would be required to give effect to the appellant's submission.

[10] Although Jubenville, at para. 25, suggests a reason for the exclusion within s. 265(2) -- "to prevent individuals from relying on uninsured automobile coverage instead of insuring each of their vehicles" -- there could be other reasons for the legislative choice of language. For instance, the legislature may have intended that the claimant spouses not be able to recover should they place the vehicle into an "uninsured automobile" context by, for example, driving the vehicle while an excluded driver. Where, as here, the exclusion provided for under s. 265(2) and the policy is unambiguous on its face, it is not the role of this court to rewrite the provision based on speculation. Although it is proper to resolve conflicts between two different interpretations, the provision presents no ambiguity.

[11] The fact that this may produce a "harsh result" does not mean that it is an absurd result, as it is in accordance with the plain meaning of the unambiguous provision: Chilton, at para. 21.

[12] We also disagree with the appellant that even if he was not injured by an "uninsured automobile", the claim should not have been dismissed. Section 5.2.1 of the OAP only allows coverage for damages arising from an "uninsured or unidentified automobile", which is not the case here.

[13] The motion judge made no error in dismissing the motion and we decline to interfere.

[14] The appeal is dismissed. The respondent shall have costs in the amount of $5,000.

Appeal dismissed.

End of Document