Ireland v Allstate Insurance Company of Canada, 2014 ABQB 706

Court of Queen ’ s Bench of Alberta Citation: Ireland v Allstate Insurance Company of Canada, 2014 ABQB 706 Date: 20141117 Docket: 1203 10500 Registry: Edmonton Between: Larry Ireland Appellant - and - Allstate Insurance Company of Canada and Allstate Insurance Company Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Larry Ireland appeals from a decision of Master Schlosser published at 2014 ABQB 437 . [ 2 ] Mr.

Ireland was a passenger in a motor vehicle on July 18, 2010. There was a single vehicle accident. Mr. Ireland was injured. On July 12, 2012 Mr. Ireland sued the driver of the vehicle in another action. The driver’s insurer has denied coverage. The denial is contested. If it is upheld, it appears likely that Mr. Ireland will not recover the full amount of his damages through that action. [ 3 ] Mr. Ireland has been in a common-law relationship since January 15, 2007. He was also married to another woman at the time. That marriage ended with a divorce judgment on January 15, 2012.

[ 4 ] Mr. Ireland claims to be an insured person under the SEF44 coverage of his common-law partner. He commenced this action, also on July 12, 2012, claiming the benefit of that coverage in respect of any portion of his damages not paid by the driver’s insurer. [ 5 ] Allstate has not yet filed a Statement of Defence. Rather, Allstate applied to the Master for

summary dismissal of this action on the basis that there is merit to Mr. Ireland’s claim. In that application, Allstate relied on the

definitions of “insured person” and “spouse” in the SEF44. The former definition provides that the spouse of the named insured is an insured person. “Spouse” is defined as including: . . . either of a man and woman not being married to each other who have cohabited continuously for a period of not less than five years . . . [ 6 ] Allstate takes the position, amongst other things, that Mr. Ireland and his common-law partner had not lived together for 5 years at the time of the accident. They had been together 3½ years at the time of the accident. By the terms of the endorsement, therefore, Mr.

Ireland is not the spouse of the named insured in the policy and is therefore not an insured person. [ 7 ] Mr. Ireland filed an affidavit in response to Allstate’s application. In it he observed: . . . the Adult Independent Relations Act , [ S.A. 2002, c. A-4.5 ] provides that common-law couples like Kathleen Milas and myself, who have been living together for more than 3 years in a common-law relationship, have the same rights as spouses in a traditional marriage.

We are to be treated as a married couple. . . . [ 8 ] I note that this does not appear to be an accurate reading of the Adult Independent Relations Act. The Act does no more than define an adult interdependent relationship. It says nothing about the rights parties to such a relationship have by virtue of the relationship. It does not say they are to have the same rights as spouses in a traditional marriage. I assume Mr. Ireland’s actual position is that statutes that do define rights on the basis of marital status now extend the same rights to persons in adult interdependent relationships.

I do not think, however, that Mr. Ireland’s misreading of the Adult Independent Relations Act affects the merits of his appeal. [ 9 ] Mr. Ireland submitted in his affidavit that the 5-year requirement in the quoted part of the definition of spouse in SEF44 is contrary to law. He suggests that the Adult Independent Relations Act requires that the definition of spouse in SEF44 be read as requiring a 3-year relationship and not a 5-year relationship. Mr. Ireland’s common-law relationship with the named insured had been in place 3½ years at the time of the accident.

He should therefore be recognized as an insured person under the endorsement. [ 10 ] Apparently before the Master and certainly before me, Mr. Ireland’s counsel submitted that as the terms of the SEF44 are mandated by legislation, Mr. Ireland’s Charter rights would be limited if he is not recognized as an insured person given that he had been the named insured’s common-law partner for more than 3 years at the time of the accident. [ 11 ] Master Schlosser noted that Mr. Ireland commenced this action to preserve his rights under the SEF44 coverage.

It may be that the coverage denial in respect of the driver’s insurance will be determined to be without merit and Mr. Ireland’s damages will be paid in their entirety by the driver’s insurer. This action would then not be necessary. Mr. Ireland submitted to Master Schlosser that in these circumstances his SEF44 action should not be dismissed. Rather, he submitted, he had shown that there was a genuine issue to be tried. Further, Mr.

Ireland submitted that he should not be required to proceed with the constitutional challenge to the definition of spouse in the SEF44 before it is determined whether this action is in fact necessary. [ 12 ] Master Schlosser noted that but for the constitutional argument Mr. Ireland raised, Allstate would be entitled to

summary dismissal. He observed that what Mr. Ireland really wanted was a stay of proceedings pending determination of the action against the driver or at least the coverage denial issue. His disposition of the application was as follows: The Application for

Summary Dismissal is adjourned for 30 days to give the parties a chance either to agree on a stay on terms, or to make an appropriate application, or to set the

summary judgment for full hearing, with proper notice to the Crown. If none of these things happen, the Plaintiff’s lawsuit is dismissed with costs of the action and this application on the appropriate column. [ 13 ] So Master Schlosser ordered Mr. Ireland to either formally apply for the stay he had argued for or to make the constitutional argument which he had raised on proper notice to the Attorney General. He did not deny Mr. Ireland a stay. He did not either dismiss or accept the constitutional argument. He did not grant the application for

summary dismissal. He adjourned it. [ 14 ] I do not understand why Mr. Ireland has appealed. Master Schlosser gave Mr. Ireland the chance to apply for the stay which he suggested he wanted but had not applied for. [ 15 ] On the argument of this appeal Mr. Ireland continued to indicate that he wanted a stay but had still not formally applied for one and did not present a fulsome argument as to why one should be granted. [ 16 ] The implication of Master Schlosser’s order is that unless a stay is formally sought and obtained, Mr. Ireland should be required to put forward his constitutional argument in response to Allstate’s

summary judgment application at least to the extent necessary to show that there is a genuine constitutional issue to be tried so that

summary dismissal should be denied. He had not done so before Master Schlosser and he did not do so on this appeal. He did not identify the statutory provision he suggests is unconstitutional or demonstrate how the SEF44 is for constitutional purposes a statutory instrument. He did not identify the Charter right he suggests has been limited. He did no more than raise the suggestion of a constitutional argument, albeit sufficiently to make it impossible to conclude that one does not exist. [ 17 ] In my view Master Schlosser’s disposition was entirely appropriate if not generous to Mr. Ireland. The appeal must be dismissed. I will renew Master Schlosser’s order. I order that:

a) The Plaintiff be at liberty to bring an application on notice for a stay of this action pending determination of whether this action will be necessary by December 17, 2014.

b) If the Plaintiff does not bring such application the Defendant will be at liberty to have its

summary judgment application heard in either Master’s or Justice’s special chambers.

c) Counsel are to forthwith arrange a date for the special chambers application mentioned in paragraph b) to be heard after January 1, 2015. If the Plaintiff obtains a stay in the application referred to in paragraph a) of this order, counsel are directed to cancel the arrangements made for the special chambers application immediately upon the stay being granted.

d) If the Plaintiff intends to challenge the constitutionality of the definition of “spouse” in the SEF44 he shall give the minimum 14 days’ notice required by the Judicature Act, R.S.A. 2000, c. J-2, s. 24(1) to the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta.

e) If the stay mentioned in para

a) is not granted, the Master or Judge who hears the application may make such adjustment to the terms of this order as may appear necessary to ensure the Defendant’s application is dealt with as efficiently as possible. Heard on the 5 th day of November 2014. Dated at the City of Edmonton, Alberta this 17 th day of November 2014. B.R. Burrows J.C.Q.B.A. Appearances: Kevin W. Fedorak for the Appellant Michelle E. Grose for the Respondents