Ryan v. Cdn. Farm Ins., (2014) 309 Man.R.(2d) 286 (QB)

• Jurisdiction: Manitoba
• Court: Court of Queen's Bench of Manitoba (Canada)
• Judge: Suche, J.
• Neutral Citation: 2014 MBQB 178
• Citation: (2014), 309 Man.R.(2d) 286 (QB),2014 MBQB 178,[2014] MJ No 254 (QL),309 Man R (2d) 286,(2014), 309 ManR(2d) 286 (QB),309 ManR(2d) 286,309 Man.R.(2d) 286,[2014] M.J. No 254 (QL)
• Date: 28 August 2014

Ryan v. Cdn. Farm Ins. (2014), 309 Man.R.(2d) 286 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. SE.020

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; 2014 MBQB 178)

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

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

August 28, 2014.

Summary:

A fire destroyed the plaintiff's home. The plaintiff's girlfriend (Ms. Yvon), who had moved in with him a couple of months earlier, pled guilty to arson. The defendant insurer denied the plaintiff's claim for coverage under a Farm Homeowners Comprehensive policy on the grounds that the damage was the result of arson by a person insured under the policy, which was an excluded loss. The plaintiff commenced an action seeking a declaration that he was entitled to coverage under the policy. He thereafter brought a motion for summary judgment.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at (2013), 300 Man.R.(2d) 26, found that Yvon was not insured under the policy and granted summary judgment in the plaintiff's favour. The defendant appealed.

The Manitoba Court of Queen's Bench held that the plaintiff was entitled to a declaration that the defendant was liable to indemnify him for loss and damage to personal and real property occasioned by the fire. The plaintiff was also entitled to costs.

Evidence - Topic 565

Recording of evidence - Certification of transcripts - A Master dismissed the plaintiff's motion for summary judgment - The plaintiff appealed - Portions of the transcript of the plaintiff's examination for discovery had been attached to an affidavit of a representative of the defendant, which had been filed in response to the motion - The plaintiff maintained (as he had before the Master) that the portions of the discovery transcript were not properly before the court as the reporter's certificate had not been included - The Manitoba Court of Queen's Bench stated that "I agree that the best practice would be to include the certificate (as well as the initial portion of the transcript identifying the examinee). However, the summary judgment rules allow an affidavit to be based on information and belief. Thus, submitting what the affiant believes to be an excerpt from the transcript of an examination for discovery is permissible. Of course, if the authenticity of the transcript itself is in issue (which it is not here) the certificate and identification of the examinee would be essential" - See paragraphs 29 to 30.

Insurance - Topic 5524

Fire insurance - The parties - Unnamed insured - A fire destroyed the plaintiff's home - The plaintiff's girlfriend (Ms. Yvon), who had moved in with him a couple of months earlier, pled guilty to arson - The defendant insurer denied the plaintiff's claim for coverage under a Farm Homeowners Comprehensive policy on the grounds that the damage was the result of arson by a person insured under the policy, which was an excluded loss - The plaintiff commenced an action seeking a declaration that he was entitled to coverage under the policy - He moved for summary judgment - A Master found that Yvon was not insured under the policy and granted summary judgment in the plaintiff's favour - The defendant appealed - The Manitoba Court of Queen's Bench held that the plaintiff was entitled to a declaration that the defendant was liable to indemnify him for loss and damage occasioned by the fire - If Yvon, who was 19 at the time of the fire, was living in the same household as the plaintiff and was "in the care of" the plaintiff, she was insured under the policy - The court was satisfied that Yvon was a member of the plaintiff's household - However, with respect to whether Yvon was "in the care of the plaintiff", the Master found that the plaintiff had established a prima facie case that the exclusion did not apply and the defendant failed to meet its burden of showing a genuine issue for trial - The court agreed with the Master's conclusion on this point.

Insurance - Topic 6046

Fire insurance - Defences - Deliberate act by insured - General - [See Insurance - Topic 5524 ].

Practice - Topic 4199

Discovery - Examination - General - Transcripts - [See Evidence - Topic 565 ].

Practice - Topic 5701

Judgments and orders - Summary judgments - General - A Master dismissed the plaintiff's motion for summary judgment - The plaintiff appealed - Subsequent to the hearing before the Master, the Supreme Court of Canada issued its decision in Hryniak v. Mauldin - The plaintiff argued that that decision had a substantial effect on the approach to be used on summary judgment - The defendant maintained that the decision applied only in Ontario, where the rules of court regarding summary judgment differed from those in place in Manitoba - The Manitoba Court of Queen's Bench considered the issue - The court stated, inter alia, that "The Supreme Court of Canada has given very clear direction to the trial courts in Canada that summary judgment motions should be utilized generously. My conclusion is that the Queen's Bench Rules currently in place allow for as full and robust utilization of the procedure as do the [Ontario] Rules of Civil Procedure" - See paragraphs 5 to 28.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See Evidence - Topic 565 ].

Words and Phrases

Household - The Manitoba Court of Queen's Bench considered the meaning of the word "household" in the context of an insurance policy - See paragraphs 50 to 54.

Words and Phrases

In the care of - The Manitoba Court of Queen's Bench considered the meaning of the phrase "in the care of " in the context of an insurance policy - See paragraphs 55 to 61.

Cases Noticed:

Jacobson Estate v. Freed et al. (1994), 97 Man.R.(2d) 197; 79 W.A.C. 197 (C.A.), refd to. [para. 3].

Bellboy Corp. v. 3763383 Manitoba Ltd. et al. (2002), 164 Man.R.(2d) 17; 2002 MBQB 69, refd to. [para. 5].

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. 5].

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; 2008 SCC 14, refd to. [para. 5].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 366 D.L.R.(4th) 641; 2014 SCC 7, consd. [para. 6].

Caisse populaire de La Salle Credit Union Ltd. v. River Ridge Properties Ltd. et al. (1997), 115 Man.R.(2d) 115; 139 W.A.C. 115 (C.A.), refd to. [para. 22].

Danylchuk et al. v. Wolinsky et al. (2007), 225 Man.R.(2d) 2; 419 W.A.C. 2; 2007 MBCA 132, refd to. [para. 23].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al., [2000] Man.R.(2d) Uned. 183; 2000 MBQB 218, refd to. [para. 25].

Shell v. Barnsley et al. (2006), 208 Man.R.(2d) 264; 383 W.A.C. 264; 2006 MBCA 133, refd to. [para. 44].

Brett-Young Seeds Ltd. et al. v. K.B.A. Consultants Inc. et al. (2008), 225 Man.R.(2d) 291; 419 W.A.C. 291; 2008 MBCA 36, refd to. [para. 44].

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. 49].

Wade v. Canadian Northern Shield Insurance Company (1986), 5 B.C.L.R.(2d) 62 (S.C.), refd to. [para. 50].

Wright v. Canadian Group Underwriters Insurance Co., [2002] 5 W.W.R. 612; 167 B.C.A.C. 268; 274 W.A.C. 268; 2002 BCCA 254, refd to. [para. 50].

R.E. et al. v. Wawanesa Mutual Insurance Co. et al., [2006] O.T.C. 251; 80 O.R.(3d) 114 (Sup. Ct.), refd to. [para. 50].

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, refd to. [para. 50].

Jomaa et al. v. Jomaa, [2011] O.T.C. Uned. 7150; 2011 ONSC 7150, refd to. [para. 50].

Canadian Universities' Reciprocal Insurance v. Halwell Mutual Insurance Co. et al. (2002), 164 O.A.C. 105; 61 O.R.(3d) 113 (C.A.), refd to. [para. 52].

Riordan v. Lombard Insurance Co. (2003), 182 B.C.A.C. 199; 300 W.A.C. 199; 13 B.C.L.R.(4th) 335; 2003 BCCA 267, refd to. [para. 57].

Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445; 94 N.R. 261, refd to. [para. 58].

Counsel:

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

Kelly L. Dixon, for the defendant;

No appearance, by or on behalf of the third parties.

This appeal was heard before Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 28, 2014.