Ryan v. Canadian Farm Insurance Corp. et al., 2013 MBQB 271

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 08, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 271;(2013), 300 Man.R.(2d) 26 (QBM)

Ryan v. Cdn. Farm Ins. (2013), 300 Man.R.(2d) 26 (QBM)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.062

Noel Michael Ryan (plaintiff) v. Canadian Farm Insurance Corp. (defendant) and Rebecca Lianne Yvon, Rebecca Ansell, Martin Ansell and Jayne Ansell (third parties)

(CI 10-01-68165; 2013 MBQB 271)

Indexed As: Ryan v. Canadian Farm Insurance Corp. et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Cooper, Master

November 8, 2013.

Summary:

A fire destroyed the plaintiff's home. The plaintiff's then 19 year-old girlfriend (Ms. Yvon), who had been staying with the plaintiff in the home, was convicted of arson. The plaintiff's insurer refused coverage on the basis that Yvon was insured under the policy and there was no coverage where the loss or damage to the property was caused by an intentional or criminal act of a person insured under the policy. The insurer took the position that Yvon was "a person under 21 in the care" of the plaintiff. The plaintiff moved for summary judgment with respect to his request for a declaration that the defendant insurer was liable to indemnify him for the loss and damage resulting from the fire.

A Master of the Manitoba Court of Queen's Bench granted summary judgment, holding that the defendant insurer was legally liable to indemnify the plaintiff for the loss caused by the fire.

Evidence - Topic 565

Recording of evidence - Certification of transcripts - The plaintiff moved for summary judgment in respect of his request for a declaration that the defendant insurer was liable to indemnify him for loss and damage resulting from a fire at his home - The affidavit of the defendant's president and CEO contained as an exhibit certain excerpts from the plaintiff's examination for discovery - The plaintiff submitted that the transcript and the excerpts were inadmissible on the motion because the defendant had not complied with s. 27(3) of the Manitoba Evidence Act which, he argued, required that a transcript have been certified as a true transcription by the reporter - The plaintiff noted that the defendant had not provided evidence of certification - A Master of the Manitoba Court of Queen's Bench was not prepared to hold that the evidence was inadmissible on this ground alone - Technically, the reporter's certification should be provided - The Master would not have taken the same view if the plaintiff's counsel had in any way questioned the authenticity or accuracy of the transcription - See paragraphs 30 to 35.

Insurance - Topic 1853

The insurance contract - Interpretation of contract - Narrow construction against insurer - [See Insurance - Topic 6046 ].

Insurance - Topic 1856

The insurance contract - Interpretation of contract - Exclusions - [See Insurance - Topic 6046 ].

Insurance - Topic 5524

Fire insurance - The parties - Unnamed insured - [See Insurance - Topic 6046 ].

Insurance - Topic 6046

Fire insurance - Defences - Deliberate act by insured - General - A fire destroyed the plaintiff's home - The plaintiff's then 19 year-old girlfriend (Ms. Yvon), who had been staying with the plaintiff in the home, was convicted of arson - The plaintiff's insurer refused coverage on the basis that Yvon was insured under the policy and there was no coverage where the loss or damage to the property was caused by an intentional or criminal act of a person insured under the policy - The insurer took the position that Yvon was "a person under 21 in the care" of the plaintiff - The plaintiff moved for summary judgment with respect to his request for a declaration that the defendant insurer was liable to indemnify him for the loss and damage resulting from the fire - A Master of the Manitoba Court of Queen's Bench granted summary judgment, holding that the insurer was legally liable to indemnify the plaintiff for the loss caused by the fire - There was a reasonable possibility that a court would conclude that Yvon was living in the plaintiff's household - However, the facts demonstrated nothing more than a typical live-in romantic relationship and there was nothing about them that would distinguish them as the kind of relationship where the courts had found a person under 21 to be "in the care" of another - Whether the words at issue, "in their care", were ambiguous or unambiguous, they were clearly not intended to apply to such a relationship - If they were considered ambiguous, the law was clear that the narrower interpretation would be preferred to the broader one - The plaintiff had established a prima facie case that the exclusion did not apply and the defendant insurer failed to meet its burden to show a genuine issue for trial - See paragraphs 58 to 97.

Practice - Topic 4502.1

Discovery - Use of examinations in court or other proceedings - A fire destroyed the plaintiff's home - The plaintiff's then 19 year-old girlfriend (Ms. Yvon), who had been staying with the plaintiff in the home, was convicted of arson - The plaintiff's insurer refused coverage on the basis that Yvon was insured under the policy and there was no coverage where the loss or damage to the property was caused by an intentional or criminal act of a person insured under the policy - The plaintiff moved for summary judgment in respect of his request for a declaration that the defendant insurer was liable to indemnify him for loss and damage resulting from the fire - The plaintiff questioned the admissibility of transcripts of the examinations for discovery of Ms. Ansell (who had been at the plaintiff's home with Ms. Yvon when the fire was started) that were relied on by the defendant in opposition to the motion - The entire Ansell examination for discovery was attached to the defendant's motion brief - The plaintiff objected to the admissibility of the Ansell transcript on the grounds that the rules did not permit a party to tender, either at trial or on a motion, any part of an examination for discovery of a third party who was not adverse in interest to the party - In T.E.A.M. v. Manitoba Telecom Services Inc. (2005 MBQB) Scurfield, J., held that a party could not use the discovery evidence of a party not adverse in interest as evidence in a summary judgment motion - A Master of the Manitoba Court of Queen's Bench stated that "Assuming that Ansell is a third party not adverse in interest to the defendant, it seems to me, on the basis of T.E.A.M., that her discovery evidence is inadmissible on this motion, certainly insofar as admissions are concerned" - See paragraphs 37 to 46.

Words and Phrases

Household - A Master of the Manitoba Court of Queen's Bench considered the meaning of the word "household" in the phrase "living in the same household" in an insurance policy - See paragraphs 58 to 72.

Words and Phrases

In their care - A Master of the Manitoba Court of Queen's Bench considered the meaning of the phrase "in their care" in an insurance policy - See paragraphs 73 to 88.

Words and Phrases

Living in the same household - A Master of the Manitoba Court of Queen's Bench considered the meaning of the phrase "living in the same household" in an insurance policy - See paragraphs 58 to 72.

Cases Noticed:

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26, refd to. [para. 26].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 28].

Homestead Properties (Canada) Ltd. v. Robert - see Homestead Properties (Canada) Ltd. v. Sekhri et al.

Weber v. Yee et al. (2001), 158 Man.R.(2d) 268; 2001 MBQB 170, refd to. [para. 33].

Telecommunication Employees Association of Manitoba Inc. et al. v. Manitoba Telecom Services Inc. et al. (2005), 206 Man.R.(2d) 39; 2005 MBQB 259, consd. [para. 40].

Cholakis v. Cholakis et al. (2005), 198 Man.R.(2d) 128; 2005 MBQB 105, refd to. [para. 44].

Lebedynski v. Westfair Foods Ltd., 2000 MBQB 144, refd to. [para. 46].

Jaman et al. v. Hussain et al. (2002), 166 Man.R.(2d) 51; 278 W.A.C. 51; 2002 MBCA 81, refd to. [para. 48].

Rivard v. General Accident Assurance Co. of Canada (2002), 166 Man.R.(2d) 39; 278 W.A.C. 39; 2002 MBCA 70, refd to. [para. 55].

Wright v. Canadian Group Underwriters Insurance Co. (2002), 167 B.C.A.C. 268; 274 W.A.C. 268; 2002 BCCA 254, consd. [para. 56].

Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, [2010] 2 S.C.R. 245; 406 N.R. 182; 293 B.C.A.C. 1; 496 W.A.C. 1; 2010 SCC 33, refd to. [para. 57].

Wade v. Canadian Northern Shield Insurance Co., [1986] B.C.J. No. 3004 (S.C.), consd. [para. 61].

R.E. et al. v. Wawanesa Mutual Insurance Co. et al., [2006] O.T.C. 251 (Sup. Ct.), consd. [para. 64].

Eichmanis v. Wawanesa Mutual Insurance Co. - see R.E. et al. v. Wawanesa Mutual Insurance Co. et al.

Tannahill et al. v. Lanark Mutual Insurance Co., [2010] O.T.C. Uned. 3623; 2010 ONSC 3623, consd. [para. 67].

Wawanesa Mutual Insurance Co. v. Bell, [1957] S.C.R. 581, refd to. [para. 67].

Jomaa et al. v. Jomaa, [2011] O.T.C. Uned. 7150; 2011 ONSC 7150, consd. [para. 68].

Condominium Corp. No. 7921945 et al. v. Cochrane (2004), 352 A.R. 71 (Prov. Ct.), consd. [para. 75].

Riordan v. Lombard Insurance Co. (2003), 182 B.C.A.C. 199; 300 W.A.C. 199; 2003 BCCA 267, consd. [para. 79].

Henderson v. State Farm Fire and Casualty Co. (1999), 596 N.W.2d 190 (Mich. Sup. Ct.), consd. [para. 81].

Bellboy Corp. v. 3763383 Manitoba Ltd. et al. (2002), 164 Man.R.(2d) 17; 2002 MBQB 69, refd to. [para. 90].

Sidhu v. Wawanesa Mutual Insurance Co. et al., [2011] B.C.T.C. Uned. 1117; 2011 BCSC 1117, refd to. [para. 99].

Statutes Noticed:

Manitoba Evidence Act, R.S.M. 1987, c. E-150; C.C.S.M., c. E-150, sect. 27(3) [para. 32].

Counsel:

Andrew P. Loewen and Aaron W. Challis, for the plaintiff;

Kelly L. Dixon, for the defendants;

Jamie J.B. Rosin, for the third parties, Martin Ansell and Jayne Ansell, on a watching brief.

This motion was heard before Cooper, Master of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 8, 2013.