Taylor v Co-operators General Insurance Company, 2017 ABQB 705

Court of Queen’s Bench of Alberta Citation: Taylor v Co-operators General Insurance Company, 2017 ABQB 705 Date: 20171117 Docket: 1603 03259 Registry: Edmonton Between: Randy Taylor Respondent/Plaintiff - and - Co-operators General Insurance Company Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ The Application [ 1 ] The Applicant insurer has brought an application pursuant to Rule 7.1 for determination of a question of law as to whether it is obligated to indemnify the Respondent for a loss which has been claimed under a policy of insurance. The Facts [ 2 ] In 2011, the Respondent, who resides in Fort Saskatchewan, Alberta purchased a dwelling located in Westlock, Alberta for rental and investment purposes.

[ 3 ] Immediately following the purchase of the dwelling the Respondent obtained insurance coverage for it from the Applicant. [ 4 ] In August 2011 the Respondent rented it to a married couple, which rental continued until June 29, 2015, at which time the tenants renewed the lease for a further one year period. [ 5 ] Shortly after signing the Lease Renewal, the tenants experienced matrimonial difficulties and the husband moved out.

The wife moved out on July 13, 2015. [ 6 ] The Respondent decided to renovate the house prior to leasing it to new tenants and planned on completing the renovations by August 2015 in preparation for renting it for September 2015. On July 22, 2015 the Respondent towed a holiday trailer to the site and parked it adjacent to the house. The Respondent intended to sleep in the trailer on some days during the renovation project. [ 7 ] The Respondent used the washroom in the house and stored tools in it, which were being used for the renovation.

During argument it was conceded that the Respondent had no food, clothing or other personal items located in the house. [ 8 ] On August 22, 2015 a fire started on the roof of the house which caused approximately $80,000 damage. [ 9 ] Following the fire, the Respondent submitted a Proof of Loss to the Applicant. [ 10 ] It is admitted that the policy of insurance was in full force and effect on August 22, 2015 and that loss by fire is covered by the Policy of Insurance. [ 11 ] The Applicants denied the claim on the basis that the house was vacant for more than 30 consecutive days, which is an exclusion from coverage.

Discussion [ 12 ] In Ledcor Construction Ltd. v.

Northbridge Indemnity Insurance Co. , 2016 SCC 37 at para 49 , the Court reiterated that the primary interpretative principle of insurance policies “is that where the language of the insurance policy is unambiguous, effect should be given to that clear language...”. [ 13 ] The term ‘vacant’ is defined in the policy as follows: ...regardless of the presence of personal property or furnishings in a new or old dwelling, a new dwelling is vacant after it is completed and before a resident moves in and an old dwelling is vacant when all residents have moved out and another resident has not yet moved in. [ 14 ] The policy contains a

section outlined on pp 9 and 10 described as: LOSS OR DAMAGE NOT INSURED BY PROPERTY

SECTION Your policy does not insure loss or damage:... followed by a number of headings. [ 15 ] The relevant portion reads as follows: All remaining coverage will also cease if your dwelling is vacant for more than 30 consecutive days unless we give specific coverage. See the definition of vacant earlier in this policy. [ 16 ] The definition of ‘vacant’ in the policy is clear and unambiguous. [ 17 ] In Coburn v.

Zorkin Insurance Brokers Inc. , 2014 BCCA 73 at para 32 , it was observed that when a policy defines a term, care must be taken not to substitute a judicial definition for one chosen by the parties. [ 18 ] The issue then arises as to whether the dwelling was vacant on August 22, 2015? [ 19 ] It is uncontroverted that both the male and female tenants who previously resided in the dwelling had completely and permanently moved out by July 13, 2015. [ 20 ] The Respondent does not allege that the dwelling was rented to a new tenant when the fire occurred. [ 21 ] It is also uncontroverted that the Respondent did not advise the Applicant that the prior tenants had moved out and did not request specific coverage pending rental to a new tenant. [ 22 ] The issue then arises whether on these facts it can be argued that the Respondent had taken up residence in the dwelling; in other words, had he moved into it? [ 23 ] As noted, the Respondent and his wife maintained their primary residence at Fort Saskatchewan. [ 24 ] I accept that it is possible to have more than one residence, but I also accept that the ownership of more than one dwelling does not necessarily mean the owner resides in more than one dwelling. [ 25 ] The terms ‘resident’, ‘moved in’ and ‘moved out are not defined in the policy.

[ 26 ] ‘Resident’ is defined in the Concise Oxford Dictionary as being a “permanent inhabitant”. [ 27 ] In the context of a dwelling, ‘resident’ must refer to one who carries on normal functions of occupancy of a dwelling, including food storage, cooking and eating, storage of personal items including clothing, sleeping and using the dwelling for leisure purposes.

All of these are indicia of a place of abode. [ 28 ] ‘Moved in’ in this context must mean taking up residency for the purposes outlined above. [ 29 ] ‘Moved out’ in this context must mean permanently leaving the premises and discontinuing the purposes outlined above. [ 30 ] It is well established that conducting renovations to rental premises does not necessarily mean that the owner resides in the dwelling ( Coburn v.

Zorkin, supra at para 44). [ 31 ] There is no evidence that the Respondent was sleeping, cooking or eating in the dwelling and no evidence of storage of personal items other than tools being used for the renovation. There is no evidence he ever intended to reside in the dwelling or use it for any purpose other than to rent it out for income. It was not his habitual place of abode or even a temporary place of abode. [ 32 ] In support of its position, the Respondent relies on the decision of the Alberta Court of Appeal in Cody v. Beaver Insurance Company , [1964] A.J.

No. 76 wherein the Court judicially defined the term ‘vacant’. [ 33 ] In my view, this decision is distinguishable as the policy being considered in that decision did not contain a definition of the term ‘vacancy’. [ 34 ] The Respondent submitted, in the alternative, that the trailer parked adjacent to the dwelling was being occupied by the Respondent and that it should be considered to be an attached structure such that the entire dwelling was occupied by the Respondent. [ 35 ] In the policy, under the heading of

summary of insured location, one location is listed: 9947 111 Street, Westlock. ‘Building’ is defined as “the dwelling, attached structures, detached structures and swimming pools.” ‘Dwelling’ is defined as “the structure occupied as a private residence and identified on the Certificate of Insurance.” [ 36 ] Under the heading ‘Building’, the following wording appears: Dwelling and Attached Structures You may apply the limit of insurance on the dwelling to insure the dwelling and attached structures.

The term ‘detached structure’ is defined as follows. ‘Detached’ means separated from the dwelling by a clear space or connected to the dwelling by a fence, utility line or similar connection. Some examples of detached structures are garages, utility buildings and fences. [ 37 ] It was argued that the trailer should be considered to be a detached structure because a power cord from the trailer was plugged into the dwelling. [ 38 ] The term ‘structure’ is not defined in the policy.

In the Concise Oxford Dictionary , ‘structure’ is defined as “a whole contained unit, a building”. [ 39 ] The term ‘trailer’ is not found in the policy. A trailer is defined in the Concise Oxford Dictionary as “a vehicle towed by another”. This policy of insurance does not cover trailers. [ 40 ] A trailer is not a structure.

It is not similar to a garage, utility building or a fence. [ 41 ] Parking the trailer adjacent to the dwelling and plugging in a power cord to it did not make the trailer part of the dwelling or convert it into a structure or detached structure. [ 42 ] Accordingly, another resident had not yet moved in to the dwelling, at the time the fire occurred. Conclusion [ 43 ] In the result, on August 22, 2015 the dwelling had been vacant for more than 30 consecutive days and the Respondent did not request specific coverage for this event.

Therefore, the Applicant is not obligated to indemnify the Respondent for losses arising out of the fire on that date. [ 44 ] Costs may be spoken to. Heard on the 10 th day of November, 2017. Dated at the City of Edmonton, Alberta this 17 th day of November, 2017.

R. Paul Belzil J.C.Q.B.A. Appearances: Jasmeet Sadhra Emery Jamieson LLP for the Respondent/Plaintiff Shawn R. Sipma Chomicki Baril Mah LLP for the Applicant/Defendant