Royal & Sun Alliance Insurance Company of Canada v. Snow, 2016 NSCA 7

Nova Scotia Court of Appeal Citation: Royal & Sun Alliance Insurance Company of Canada v. Snow , 2016 NSCA 7 Date: 20160211 Docket: CA 436806 Registry: Halifax Between: Royal & Sun Alliance Insurance Company of Canada Appellant v. Fred Snow, Charlene Snow and Sandy Snow Respondents Judges: Farrar, Scanlan and Van den Eynden, JJ.A. Appeal Heard: October 5, 2015, in Halifax, Nova Scotia Held: Leave to appeal granted and appeal allowed per reasons for judgment of Farrar, J.A.; Scanlan and Van den Eynden, JJ.A. concurring.

Counsel: Murray Ritch, Q.C. and John Hedley, for the appellant Harvey McPhee, Q.C. and Jennifer Anderson, for the respondent Reasons for judgment: Overview [ 1 ] The appellant, Royal & Sun Alliance Insurance Company of Canada, seeks leave to appeal and, if granted, appeals the decision of Supreme Court Justice Patrick J. Murray dated January 13, 2015 ( 2015 NSSC 44 ). [ 2 ] The respondents are the owners of 60 Dominion Street in Glace Bay, Nova Scotia. This was one-half of a semi-detached home. [ 3 ] On or about February 11, 2011, an oil spill occurred on a neighbouring property.

The Snows claimed under their homeowners policy. [ 4 ] Based on the terms of the policy, Royal paid the Snows for damage to personal property and additional living expenses. Royal denied the claim for remediation of the soil on the basis that soil was not insured property under the policy. [ 5 ] The property subsequently sustained two fire losses. Although they are the subject of the underlying lawsuit, they are legally and factually irrelevant to the issues on this appeal. [ 6 ] The Snows brought a motion for a determination of a question of law pursuant to Civil Procedure Rule 12.

The question to be determined was whether the land underneath the respondents’ home was covered under the policy of insurance issued by Royal. The motions judge found that it was. [ 7 ] The motions judge gave four justifications for his finding that there was coverage for the soil under the building.

They are: 1. the term “building” as it is contained in the definition of “dwelling”, on its face, is broad enough to include the soil under it; 2. the term “building” is ambiguous and, therefore should be interpreted broadly to include the soil under the building; 3. the reasonable expectations of the parties warrants coverage; and 4. nullification of coverage. [ 8 ] For the reasons that follow, I would grant leave to appeal, and allow the appeal with costs to the appellant in the amount of $4,000.00 inclusive of disbursements.

Issues [ 9 ] Royal identifies three issues on this appeal. I would reword and expand the issues to four (Issue #2 in the appellant’s factum incorporates two distinct issues which I have identified as #2 and #3 below). They are: 1. Did the motions judge err in interpreting the insurance policy by finding that coverage included the soil underneath the respondents’ home? 2. Did the motions judge err by concluding that the policy wording was ambiguous? 3. Did the motions judge err in determining, even if the policy was not ambiguous, the reasonable expectation of the parties warranted coverage? 4.

Did the motions judge err by concluding that the doctrine of “nullification of coverage” applied? Standard of Review [ 10 ] The standard of review in relation to

interpretation of contracts was recently considered in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53 . In Sattva the Court noted that historically courts approached the

interpretation of written contracts as a question of law. The Supreme Court of Canada rejected this approach holding: 50. …Contractual

interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual

interpretation are applied to the words of the written contract, considered in light of the factual matrix. [ 11 ] The Supreme Court concluded a deferential standard of review is appropriate unless there is a legal error with respect to an extricable question of law. Legal errors made in the course of contractual

interpretation include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. ( Sattva , ¶52-54 citing Housen v. Nikolaisen , 2002 SCC 33 ; see also Industrial Alliance Insurance and Financial Services Inc. v. Brine , 2015 NSCA 104 , ¶40). [ 12 ] In my view, all four issues identified are discrete and extricable questions of law. The standard of review for each issue is correctness (see Portage La Prairie Mutual Insurance Company v. Sabean , 2015 NSCA 53 , ¶13).

Issue #1 - Did the motions judge err in interpreting the insurance policy by finding that coverage included the soil underneath the respondents’ home? [ 13 ] The principles underlying the

interpretation of insurance policies have been canvassed by the Supreme Court of Canada on many occasions. I do not intend to do a comprehensive review. I will, however, summarize the relevant principles: (

a) The primary interpretative principle is that where the language of the policy is unambiguous, effect should be given to the clear language of the policy reading it as a whole; (

b) Where the language of the insurance policy is ambiguous, the courts rely on general rules of contract construction.

Interpretations that are consistent with the reasonable expectations of the parties should be preferred, so long as the

interpretation can be supported by the text of the policy.

Interpretations that would give rise to an unrealistic result or were not in the contemplation of the parties are to be avoided; (

c) The rules of

interpretation are intended to resolve ambiguities. They are not intended to create ambiguities where none exist; (

d) Courts should strive to interpret similar policies consistently; (

e) When the contractual rules of construction fail to resolve the ambiguity courts will construe the policy contra proferentem . Under the contra proferentem rule, coverage provisions are interpreted broadly; exclusions narrowly. (See Progressive Homes Ltd. v.

Lombard General Insurance Company of Canada , 2010 SCC 33 , ¶21-24) [ 14 ] With these principles in mind, I will turn to the insurance policy at issue in this appeal. [ 15 ] The grant of coverage is contained in Coverages A through D and the heading "additional coverages." The only two Coverages that are relevant to whether soil or land is insured property are Coverages A and B.

They read: COVERAGE A – DWELLING BUILDING We insure: • the dwelling and attached structures; • outdoor equipment permanently installed on the premises ; • outdoor domestic water containers located on the premises including swimming pools, hot tubs, saunas and attached equipment; • materials and supplies located on or adjacent to the premises intended for use in construction, alteration or repair of your dwelling or additional buildings/structures on the premises. Building Fixtures And Fittings

We also insure building fixtures and fittings temporarily removed from the premises for repair or seasonal storage. COVERAGE B- ADDITIONAL BUILDINGS We insure private buildings or structures detached from the dwelling and which are on your premises , but not insured under “Coverage A” . If they are connected to the dwelling by only a fence, utility line or similar connection, they are considered to be detached [terms bolded in original]. [ 16 ] Premises” is defined as “the land and building(

s) contained within the lot lines on which the dwelling is situated.” [ 17 ] “Dwelling” is defined as “the building described on the Coverage

Summary wholly or partially occupied by you as a private residence.” (Emphasis added) [ 18 ] The Coverage

Summary describes the location as “60 Dominion Street” in Glace Bay, and adds the further description “Preferred rate, 1 Family, Hydrant protected, Primary Heat Electric, Additional Heat-None.” [ 19 ] I will start with the motions judge’s review of the provisions of the policy which I have cited above. After reviewing these provisions he held: [52] From this wording in the policy it appears that the soil under building(

s) which are detached from the dwelling are insured but not the soil under the dwelling itself. This is because of the definition of ‘premises.’ [ 20 ] I disagree with this conclusion. The “premises” is not the insured property.

The insured property is the dwelling, additional buildings, attached structures, and certain other objects (such as pools) that are located on the “premises.” The term “premises” serves to describe and qualify the location of items of insured property but it does not create an independent grant of coverage. [ 21 ] The motions judge then went on to state that, “in some instances only “premises” is covered and in other instances only the dwelling and attached structures are covered.” (¶53) [ 22 ] Respectfully, the motions judge confuses what is insured property and what are the premises.

The “premises” as a whole is not insured property. Contrary to what the motions judge said, there are no instances when the “premises” is covered and other instances when only the dwelling and attached structures are covered. Pursuant to Coverages A and B, the “dwelling” and attached structures are always covered property (subject to limitations and exclusions found elsewhere in the policy, none of which are relevant here). This is apparent on the plain wording of the policy.

The motions judge then sets out to interpret the terms of the policy with this misunderstanding of how the policy operates. [ 23 ] He starts his analysis by asking himself the wrong question – he says “[a]t issue is whether the insurer’s liability extends to a specified peril.” (¶84) With respect, this is incorrect. [ 24 ] The correct inquiry is whether or not soil or land is insured property. [ 25 ] Reduced to its essence, insured property is what is insured, and insured perils are what it is insured against. These are separate concepts.

What an item is insured against, for example fire, does not alter or inform the definition of what is insured. The motions judge failed to appreciate this. At various points in his analysis the motions judge allows this to creep into his reasoning in interpreting the provisions of the policy. For example, he held: [73] … One can only assume that because specified perils are listed and described; that they are insured and that there is coverage for them. … [ 26 ] And again, later in his reasons he says: [165] It was either an all risks policy or it was not.

If it was then the obvious coverage should not be negated. [ 27 ] With respect, the various exclusions, insured perils, and specified perils are legally irrelevant to whether a particular item of property is, or is not, insured. The only items of insured property are those delineated and described in Coverages A-D and Additional Coverages. [ 28 ] With these fundamental misunderstandings the motions judge then considers whether the definition of dwelling is broad enough to include the land under it. In doing so he focuses on the word “building” as used in the definition of “dwelling”.

For ease of reference I repeat the definition: Dwelling means the building described on the Coverage

Summary … [ 29 ] At this point, some more factual context is helpful. The Snow residence did not have a basement. It had what amounted to a dirt crawl space under the building which was accessible through a door under a stairwell. The evidence was that it was used by their son to maintain and repair plumbing under the house and the area may have been used for storage.

The crawl space did not have a finished floor, it had a dirt floor. [ 30 ] After reviewing how the crawl space was accessed and used, the motions judge held: [124] There are many contexts in which a dwelling necessarily includes a basement of the house. Indeed to have an insurable interest in a dwelling, the insured must own the land beneath it. No one would argue that for appraisal or evaluation purposes, the foundation and the state of the foundation would not be an important factor in determining its value. [ 31 ] No one was arguing that the foundation was not part of the building.

In fact, no one was arguing the dirt floor of the crawl

space was not part of the building. In oral argument before us, counsel for the appellant readily acknowledged the dirt floor was part of the building and would be covered. The argument was whether the soil under what was considered to be the building was also covered.

A finding that the building includes the “floor” even if that floor is dirt, does not extend the definition of building to the land beneath the building, presumably to an infinite depth. [ 32 ] In so finding, in my view, the motions judge was in error. [ 33 ] In order to expand the definition of building to include the soil, the motions judge relied on the passage which I have referred to above from which he essentially concludes that to have an insurable interest in a dwelling you must own the land beneath it. Therefore, he reasoned, the land must be part of the building.

He cites no authority for this proposition. [ 34 ] I do not intend to get into a detailed discussion of what constitutes an insurable interest. It is, however, generally accepted that it is not necessary to own the land in order to have an insurable interest in a building.

For example, tenants have an insurable interest in property they lease, licensees have an insurable interest in land they occupy and baillees have an insurable interest in property in their possession (see Craig Brown, Thomas Donnelly Insurance Law in Canada, looseleaf (updated to Release 8, 2014), (Toronto: Carswell, 2002) ch. 4 , pp. 4-5, 4-6). To rely on the concept of insurable interest when interpreting the word “building” to include the land under it, offends the principles of

interpretation to which I have referred. Rather than look at the wording of the policy in interpreting it, the motions judge turns to other sources to try to ascertain the meaning of the word building. Not only did he err in doing so, what he relies on is not legally accurate. [ 35 ] Similarly, the motions judge then goes on to refer to property law, again, for the purposes of interpreting the policy. He reasoned: [125] It is clear in property law, that land includes the building(

s) appurtenant thereto. For conveyancing purposes, land and dwelling are one and the same. [ 36 ] It may be that when you purchase land you purchase the buildings which are on the land; however, that does not make “land” and “dwelling” synonyms. The reference to property law does not inform the

interpretation of “building” as it is contained in the insurance policy. [ 37 ] There is no uncertainty, inexactness, or incompleteness in the word “building”, either in common parlance and in the context of this insurance policy as a whole. [ 38 ] This case is indistinguishable from Garden View Restaurant Ltd. v. The Portage La Prairie Mutual Insurance Co. , 2014 NSSC 447 , a decision of Justice Margaret Stewart.

In Garden View , the applicant (Garden View) sought a declaration that a claim arising out of a January 2011 home heating oil spill was covered by a policy of insurance issued by Portage La Prairie. [ 39 ] In that policy, building was defined. The application judge found: [63] The definition of “Building” in the Policy is clearly not intended to cover soil.

The types of items insured relate to assets other than soil, and soil itself is not listed. … Although it is not necessary to do so other than to provide context to the already-defined policy term, and show its lack of uniqueness, a focus on the ordinary and popular meaning of “building” would result in the same conclusion: that it does not include soil … (Emphasis added) [ 40 ] In Garden View the application judge went on to find that there was no damage to “insured property”. [ 41 ] The motions judge, here, distinguished Garden View and offered four reasons: (

f) that the definition of “dwelling” in the Snow policy requires that it be occupied as a private residence, whereas the definition of “building” in Garden View contains no such language (¶107); (

g) there is no definition of “building” in the Snow policy, whereas there was a definition of “building” in Garden View (¶113); (

h) there is a provision in the Snow policy covering “Escape of Fuel Oil” whereas there was no such provision in Garden View (¶113 and ¶116); and (

i) the Snow policy covers “all risks” whereas the policy in Garden View does not (¶113). [ 42 ] With respect to the motions judge, he fails to explain why these distinctions factor into the interpretative process. [ 43 ] First, he notes that the definition of "building" in Garden View mentions nothing about the building being occupied as a private residence. This is true. He does not, however, explain why the exclusion of those words in the definition of “building” makes a difference in the final analysis.

In my view, the exclusion of those words in the definition of “building” in Garden View does not make it distinguishable. [ 44 ] Second, the motions judge says that building is a defined term in Garden View , but it is not in this case. With respect, the motions judge fails to recognize that the definition of "building" in Garden View is almost identical to Coverages A and B in this case. [ 45 ] In Garden View , "building" is one of five items of "insured property" and defined as follows: (b) “Building” means: The building(

s) described on the "Declaration Page" and includes:

(

i) fixed structures pertaining to the building(

s) and located on the "premises"; (ii) additions and extension communicating and in contact with the building(s); (iii) permanent fittings and fixtures attached to and forming part of the building(s); (iv) material, equipment and supplies on the "premises" for maintenance of, and normal repairs and minor alterations to the "building" or for building services; (

v) growing plants, trees, shrubs or flowers inside the "building" used for decorative purposes when the Insured is the owner of the "building". ( Garden View, ¶9) [ 46 ] Juxtapose this with Coverages A and B in this case, reproduced again for ease of reference: COVERAGE A- DWELLING BUILDING We insure: • the dwelling and attached structures; • outdoor equipment permanently installed on the premises ; • outdoor domestic water containers located on the premises including swimming pools, hot tubs, saunas and attached equipment; • materials and supplies located on or adjacent to the premises intended for use in construction, alteration or repair of your dwelling or additional buildings/ structures on the premises.

Building Fixtures And Fittings We also insure building fixtures and fittings temporarily removed from the premises for repair or seasonal storage. COVERAGE B- ADDITIONAL BUILDINGS We insure private buildings or structures detached from the dwelling and which are on your premises , but not insured under Coverage A. If they are connected to the dwelling by only a fence, utility line or similar connection, they are considered to be detached. [ 47 ] When bearing in mind the

definitions of "dwelling" and "premises" in this situation, the similarities are striking. In Garden View , what is insured is the "building" which includes certain things attached or pertaining to the building.

In the Snow policy, what is insured is the "dwelling", certain things attached or pertaining to the "dwelling", and other objects located on the "premises." Neither policy contains any further definition of building which specifies the spatial limits of the building. [ 48 ] Third, the motions judge states that there is no provision in the Garden View policy covering "escape of fuel oil." This is incorrect. The Policy provided coverage for "Clean Up Expenses for On Premises Pollutants" to a limit of $10,000.

While this appears to be a limited extension of coverage, as opposed to a specified peril, he fails to recognize that the policy in Garden View does have limited provision for fuel spills. Once again the distinction is irrelevant. As explained earlier, the perils insured against do not define the insured property. [ 49 ] Fourth, the motions judge states that this policy covers "all risks" whereas the policy in Garden View does not. Again, this is incorrect. The Garden View policy is an "all risks" policy: 5.

INSURED PERILS This form, except as otherwise provided, insures against all risks of direct physical loss or damage to the insured property. (emphasis added) [ 50 ] At the risk of being repetitious, the distinction is irrelevant. The risks insured against do not define the insured property. [ 51 ] A closer examination of the policy in Garden View does not make it distinguishable from the Snow policy.

In keeping with the principle that courts should try to interpret similar policies consistently, there is no reason why “building” should have a different meaning in the Snow policy than in the Garden View policy. [ 52 ] The motions judge says “… the policy must be considered in its entirety. In my view, this decision should not be based on a selected definition.” (¶123) [ 53 ] While I agree with this statement, the

definitions in the policy cannot be cast aside. In my view, there is no way to read the policy, in its entirety, including the

definitions of “dwelling” and “premises” and come to the conclusion that the definition of “dwelling” includes land, and by extension, that land under the building is covered property. [ 54 ] There are numerous other parts of the policy which lend support to the conclusion that a “dwelling” is something built on the land.

For example, the definition of “premises” contemplates that the “dwelling is situated” on the “premises.” Furthermore, the exclusion for water damage makes several references to domestic water containers both inside and outside the “dwelling” and water entering the “dwelling.” Finally, under the heading “Basis of Claim Settlement”, the provision dealing with Guaranteed Replacement Cost requires repairing or replacing the “damaged or destroyed building(s), on the same site.” None of these provisions would make any

sense if “dwelling” and “premises” were synonymous, and building included land underneath it. [ 55 ] For all of these reasons, I am of the view that the motions judge erred in his

interpretation of the policy by concluding that the land under the building is part of the building and, thereby, insured property. Issue #2 Did the motions judge err by concluding that the policy wording was ambiguous? [ 56 ] The motions judge goes on to say that if he was in error in his

interpretation of the policy he would rely on an ambiguity in the policy to find coverage. He finds this for two reasons. [ 57 ] First, he says there is nothing in the policy as to how it is intended to operate and he repeats his misunderstanding about “what” is covered and “why” (¶134). I have already addressed the motions judge’s apparent confusion in that regard under the first issue (see ¶22-25). [ 58 ] Secondly, he concludes that the term “building” is capable of more than one meaning (¶137). Even if that were the case, it is then necessary to apply the interpretative principles I referred to earlier.

The question to be considered is what does “building” mean in the context of this insurance policy? If there were any ambiguity in the policy, the next step would be to interpret the policy based on the reasonable expectations of the parties having regard to the policy wording (so long as that

interpretation can be supported by the text of the policy). The Court must also consider whether the

interpretation proposed would produce an absurd result. [ 59 ] The motions judge here did not do that analysis. He simply concluded “building” was ambiguous, therefore, there is coverage. [ 60 ] In Sabean , this Court clarified that the correct principles of contractual

interpretation must be applied before deciding whether or not an ambiguity exists. It is not sufficient to find ambiguity “at first glance.” (¶ 19) [ 61 ] With respect, there is no ambiguity in the term “building” as it is used in the definition of “dwelling” in this policy. I will not repeat what I said under Issue #1 on this point. [ 62 ] Further, to follow the motions judge’s

interpretation to its logical conclusion would result in an absurdity. Let me explain. The motions judge found that only the soil under the building was insured property. No other land or soil on the property would be insured. As a result, even though the whole property would be contaminated, the only soil to be remediated would be the soil under the house leaving the rest of the property contaminated. With respect, that makes absolutely no sense. To find that the soil which is under the house is insured property does not accord with any reasonable

interpretation of the policy. Issue #3 Did the motions judge err in determining, even if the policy was not ambiguous, the reasonable expectation of the parties warranted coverage? [ 63 ] The motions judge alternatively finds that even if he was wrong about whether an ambiguity existed in the policy, he would rely on the reasonable expectations of the parties to find coverage. In conclusion on this point he holds: [164] In

summary, I find the circumstances before me warrant holding the insurer RSA liable for the insured’ s loss, based on the insureds’ reasonable expectations of coverage . Even if the words themselves are unambiguous, this policy speaks for itself. [Emphasis added] [ 64 ] With respect, reasonable expectations cannot create obligations which do not otherwise exist. The application of reasonable expectations only takes place after the contract is found to be ambiguous. [ 65 ] I once again refer to Progressive Homes where the Supreme Court of Canada set out the principles of insurance policy

interpretation: [22] The primary interpretive principle is that when the language of the policy is unambiguous, the court should give effect to clear language, reading the contract as a whole ( Scalera , at para. 71). [23] Where the language of the insurance policy is ambiguous, the courts rely on general rules of contract construction …. For example, courts should prefer

interpretations that are consistent with the reasonable expectations of the parties …, so long as such an

interpretation can be supported by the text of the policy. Courts should avoid

interpretations that would give rise to an unrealistic result or that would not have been in the contemplation of the parties at the time the policy was concluded …; [Citations Omitted] [Emphasis added] [ 66 ] As can be seen by this passage, it is only where there is an ambiguity in the policy that the reasonable expectations of the parties are to be considered. Further, it is a reasonable expectation of the parties not simply one of the parties.

In essence, what the motions judge was doing was suggesting that even if there were no ambiguity in the policy, it ought to be interpreted contra proferentem to the insurer. [ 67 ] Reasonable expectations was comprehensively reviewed by the British Columbia Court of Appeal in Turpin v. Manufacturers Life Insurance Co. , 2013 BCCA 282 . Turpin involved a travel health insurance policy. The trial judge found that the terms “medical condition” and “pre-existing condition” were not ambiguous.

However, he went on to find that the plaintiff would have found the policy “difficult to understand” and accordingly applied reasonable expectations to extend coverage. The Court of Appeal disagreed, finding that reasonable expectations is inapplicable if there is no ambiguity: [42] … I agree with the insurer the preponderance of authority indicates these principles will only apply to assist in construing an ambiguity. The Supreme Court of Canada has repeatedly and consistently affirmed that the reasonable expectations of the parties only become relevant if the provisions of an insurance contract are ambiguous.

This was recently reiterated in Progressive Homes ...

[43] Moreover, a close examination of the Ontario decisions, and the cases on which they rely, reveal that there was in fact ambiguity in the contractual instrument under consideration in each case, despite statements that seem to suggest otherwise… [Emphasis added] [ 68 ] Absent an ambiguity, the motions judge erred in determining that reasonable expectations would extend coverage.

Issue #4 - Did the motions judge err by concluding that the doctrine of nullification of coverage applied? [ 69 ] The motions judge also concluded that the doctrine of nullification of coverage would be offended if coverage was denied. For this, he relied on the Ontario Court of Appeal decision in C abell v. Personal Insurance Co. , 2011 ONCA 105 . [ 70 ] In Cabell , the insured’s home insurance policy specifically excluded coverage for outdoor swimming pools. However, they bought an endorsement to provide coverage for their pool.

The endorsement contained wording that all other terms, conditions and exclusions of the policy remained unchanged. One of the policy exclusions was for “settling, expansion, contraction, moving, bulging, buckling or cracking of any insured property”. The insured’s pool was damaged by hydrostatic lift due to a buildup of ground water and the insurer denied coverage.

The Ontario Court of Appeal held that, despite unambiguous language, the exclusion would “render nugatory, or “virtually nullify” the very purpose for which the endorsement was purchased: [28]… If the court is able to determine on an objective basis that the insurer's

interpretation would render nugatory coverage for the most obvious risks for which the endorsement is issued, a tactical burden shifts to the insurer. It will be for the insurer to show that the effect of its

interpretation would not virtually nullify the coverage … [ 71 ] That is not the situation here. Cabell was essentially looking at an ambiguity in the policy when it was read as a whole. An exclusion purported to deny coverage while an endorsement, which was requested and paid for, provided coverage. [ 72 ] The Court was simply resolving an ambiguity that arose on reading the policy including the endorsement in its entirety.

It concluded that to give effect to the exclusion would nullify the coverage purchased in the endorsement. [ 73 ] As discussed and explained earlier, the coverage which the respondents purchased has not been nullified. Indeed, coverage was extended under Coverages C and D of the policy, the latter to the policy limits. Further, coverage would have been extended if the house itself had been damaged. Nullification of coverage has no application on the facts of this case. [ 74 ] I am of the view that the motions judge erred in concluding that nullification would extend coverage to the soil under the building.

Conclusion [ 75 ] I would grant leave to appeal and allow the appeal with costs to the appellant in the amount of $4,000.00 inclusive of disbursements. Farrar, J.A. Concurred in: Scanlan, J.A. Van den Eynden, J.A.