Court File and Parties

COURT FILE NO.: 6178/18

DATE: 2021-04-23

SUPERIOR COURT OF JUSTICE-ONTARIO

RE: AGNES JOSEPHINE GREGSON, by her Litigation Guardian, MICHAEL GARVEY, Plaintiff

AND:

CAA INSURANCE COMPANY (ONTARIO), Defendant

BEFORE: Gibson J.

COUNSEL: Gordon A. Marsden, counsel for Plaintiff

Brandon N. Straitman and R. Donald Rollo, counsel for Defendant

HEARD: January 4, 2021

ENDORSEMENT

Overview

[1] The defendant CAA Insurance Company (“CAA”) seeks an Order dismissing the action of the plaintiff on the basis that there is no genuine issue requiring a trial as a consequence of the application of the vacancy exclusion contained within her insurance policy.

[2] By Declaration of Property Insurance dated July 9, 2014, CAA issued a comprehensive homeowner’s policy of insurance, Policy #P000222066 to the plaintiff in respect of the property. The issue on this motion is whether CAA is liable to the plaintiff for claims arising from water damage to her property (2569 Bromsgrove Road, Mississauga, Ontario) (“the property”) that occurred and/or was discovered on March 17, 2017 by neighbours and police. The resolution of that issue, CAA submits, rests upon whether, at the material time, the property was vacant for more than 30 consecutive days, with the policyholder having moved out with no intention of returning.

Facts

[3] Agnes Gregson (“Gregson”) was the property owner and insured on March 17, 2017, when her property sustained water damage. A plumber determined that the pipes servicing a bathroom sink had a crack in the water pipe.

[4] Ms. Gregson was not living in the property at the time of the loss. As a result of various infirmities, including cognitive impairment, she had left the property on October 20, 2016, and was taken to hospital. She was subsequently transferred to Chartwell Regency Retirement Home. She was again admitted to hospital in February 2017 for respiratory issues, and subsequently in April and May 2017 as a consequence of a fractured hip.

[5] As of March 27, 2017, Ms. Gregson was deemed incapable of personal care, and incapable of managing her property, by Coco Johnson, a social worker. By Continuing Power of Attorney for Property dated February 29, 2016, Gregson had appointed her lawyer Michael Garvey as her primary attorney.

[6] Mr. Garvey transitioned Ms. Gregson into Sunrise of Erin Mills Retirement Home after surgery on her fractured hip. She resided there on a restrictive wing for individuals with dementia.

[7] Mr. Garvey acknowledged that he attended the property after October 2016 on Gregson’s behalf to check the mail, and heat. His visitation schedule was inconsistent, and only completed every couple of weeks. Nobody was spending nights at the property, and nobody else had access to the property.

[8] Garvey did not notify CAA that the plaintiff would be away from the property for an extended period of time. He did not shut off the main water supply when Gregson entered hospital.

[9] Gregson herself did not return to the property at any time after leaving in mid-October 2016.

[10] Ms. Gregson passed away on September 7, 2019. By Certificate of Appointment of Estate Trustee With a Will dated June 5, 2020, Mr. Garvey was appointed as the Estate Trustee of the Estate of Agnes Gregson. The sole beneficiary of Gregson’s estate is Buffalo Toronto Public Media (aka WNED, a PBS station). In Canada, the Canada Revenue Agency allows WNED to conduct charitable activities, but it is not a registered charity.

[11] In his affidavit on this motion, Mr. Garvey indicates that to date repairs to the damage caused by the water loss at the property have not been undertaken. To repair such damage, Bachly Construction has provided an estimate of $114,405 and Atalaia General Construction has provided an estimate of $165,997.

Issue

[12] The sole issue in this case is liability. The issue to be determined by the Court on this motion is whether the vacancy exclusion in the insurance policy applies to deny coverage to the plaintiff. This will turn on whether the plaintiff intended to return to the property.

Position of the Moving Party Defendant

[13] The Defendant submits that this is a proper case for summary judgment pursuant to Rule 20.04 as there are no genuine issues for trial.

[14] Counsel for the Defendant confirmed in oral submissions that the Defendant no longer pursues the arguments advanced in its factum relating to a material change in risk, or whether the policy excludes coverage for freezing caused during the usual heating season. It confines its submissions to its argument that the vacancy exclusion applies to deny coverage to the plaintiff as the property was vacant, as the occupant had moved out with no intention to return. The property is regarded as vacant within the meaning of the policy, it submits, if Ms. Gregson as the occupant moved out with no intention to return as an occupant. It submits that this was the case after Gregson’s departure on October 20, 2016.

[15] In the policy, it states that CAA does not insure loss or damage occurring after the dwelling has (to the knowledge of the insured) been vacant for more than 30 consecutive days. Under the policy definitions, “vacant” refers to the circumstances where, regardless of the presence of furnishings, “all occupants have moved out with no intention of returning, and no new occupant has taken up residence.”

[16] In the policy the word vacant by its definition, the defendant submits, conceptually assumes reference to Gregson’s objective intention.

[17] The common law defines vacancy as inoccupation, meaning there is a lack of habitual presence by human beings. The property is regarded as vacant within the meaning of the policy if the occupant moved out with no intent to return as an occupant. It would not be vacant if the occupant intended to return to occupy the premises: Zimmerman v. Royal & Sun Alliance Insurance Company, [2007] 37900, at para. 12.

[18] The defendant submits that that this is the test, citing Maracle v. Bay of Quinte Mutual Insurance Co. et al., 2010 ONSC 5217, at para. 55. Ms. Gregson’s desire (or subjective intention) to return home does not matter, it submits; rather, her objective intention is what counts. In this regard, the defendant submits that Garvey’s actions and acknowledgements are consistent with only one intention, namely that Gregson would not be returning to the property, and instead would be living in a retirement home on a permanent basis. She had not lived in the home for some 146 days at the time of the loss in March 2017.

Position of the Responding Party Plaintiff

[19] The plaintiff submits that, when Gregson moved out of her home, her treating physicians only suspected that she had symptoms of early dementia, and she had not been found to lack capacity. Upon her discharge from the hospital, her medical team recommended three potential destinations- two of which involved returning to her home with varying amounts of support. With input from Garvey, she chose the retirement home as a trial, with the intention of revisiting the three potential destinations at the end of the trial. As the trial stay neared its conclusion on March 31,2017, her condition was deteriorating but she still only required companionship for four hours, five days a week. Subsequently, the plaintiff submits, she rapidly declined. She lost capacity, developed aggressive behaviours, and required supervision 24 hours per day. However, it contends, those circumstances had not yet crystallized at the time of the loss. When those circumstances crystallized, after the time of the loss, she could be considered to have moved out of the property with no intention of returning.

[20] The plaintiff contends that at the time of the water loss on March 17, 2017, Gregson had not moved out with no intention of returning and, without the power of attorney having been triggered, Michael Garvey could not make that decision for her.

Case appropriate for determination by summary judgment

[21] To grant summary judgment, the moving party must satisfy the court that there is no genuine issue requiring a trial: Rule 20.04. Where the summary judgment process allows for a fair and just determination on the merits, there will be no genuine issue for trial. This will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious and less expensive process to achieve a just result than a trial: Hryniak v. Mauldin, 2014 SCC 7 at paras. 4 and 49.

[22] The moving party bears the evidentiary burden of demonstrating that there is no genuine issue for trial. If the moving party discharges this burden, then the burden shifts to the responding party to prove that it has a real chance of success: Sanzone v. Schechter, 2016 ONCA 566, at para. 30.

[23] I consider that this is an appropriate case for summary judgment. The sole issue in this case is liability. There is no risk of duplicative or inconsistent findings at trial because the issue is clearly severable from the damages portion of the claim. Ms. Gregson is deceased and there will thus be no viva voce evidence forthcoming from her. The documentary evidence is sufficient to allow the court to reach a fair decision on the merits.

Analysis

[24] Gregson’s insurance policy in force during March 2017 provided property insurance and contemplated ownership and occupation, subject to loss or damage not insured as described in the policy.

[25] The policy contains certain terms, conditions, and exclusions, and describes circumstances when loss or damage is not insured. The vacancy exclusion at issue in this case is in the policy to avoid coverage for unintended risk due to damage to property that is vacant or has become vacant after the issuance of the policy.

[26] I agree with the submission of the defendant, following Maracle, that what is dispositive in this circumstance, given the wording of the policy, is the occupant’s objective intention to return, and that this falls to be determined having regard to all the circumstances.

[27] The difficulty with the plaintiff’s argument is that Garvey had concerns about the plaintiff’s capacity in November 2016, as he confirmed during his examination for discovery. In November 2016, a capacity assessment was recommended through the Public Guardian’s office. Gregson refused to participate. Gregson was once again admitted to hospital on February 1, 2017 for respiratory issues. Diagnoses at that time also included dementia with psychosis and depressive symptoms.

[28] On March 14, 2017, Garvey attempted again to determine Gregson’s capacity under the Substitute Decisions Act. He telephoned Coco Johnson (MSW) on March 14, 2017 to request a capacity assessment. Gregson was deemed incapable of personal care, and incapable of managing her property as of March 27, 2017 by Ms. Johnson.

[29] In the present case, there was insufficient evidence of planning to conclude that there was an objective intention to return. No support services to support Ms. Gregson in her home were hired. There was no plan for live-in or daily assistance. There was no concrete discharge plan from her residence at the long-term care facility. There is no evidence that a Personal Support Worker or Social Worker were arranged for.

[30] Moreover, in this case the medical evidence suggests that Ms. Gregson was incapable of forming intention at the material time. Even though her capacity was only officially determined ten days after the loss was discovered, on March 27, 2017, it was likely that Gregson had lost her ability to form intention after leaving the property in October 2016. Her care issues in that interim were being managed by her power of attorney, Mr. Garvey, and her medical and social work team. I do not accept the plaintiff’s submission that the circumstances only crystallized ten days after the loss.

[31] I find that, even though Ms. Gregson might very well have had a desire to return home, and was unhappy to continue to reside in the long term care facility, and there may have been transitory discussion of various proposals, no plan was ever made to accomplish this, and it was unrealistic in the circumstances given her physical condition and her lack of capacity. Mr. Garvey’s actions and acknowledgments are consistent with the intention that she would not be returning to the property, and instead would be living in a retirement home on a permanent basis. Objective intention is to be determined having regard to all the circumstances. I find that there was no objective intention to return to the property.

[32] I find that there is no genuine issue for trial concerning the dispositive issue of whether there was an objective intention to return to the property, and thus whether the vacancy exclusion in the insurance policy applies to deny coverage to the plaintiff. In the circumstances disclosed by the evidence, I find that it did.

Order

[33] The Defendant’s motion for summary judgment is granted. The plaintiff’s action is dismissed.

Costs

[34] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant. The defendant may have 14 days from the release of this decision to provide its submissions, with a copy to the plaintiff; the plaintiff a further 14 days to respond; and the defendant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timeframes after the defendant’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson J.

Date: April 23, 2021