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Ferro v. Weiner, 2019 ONCA 55
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Hourigan, Miller and Trotter JJ.A.
BETWEEN
Jennifer Ferro, Andrea Ferro and Carmella Ferro
Plaintiffs
and
Paul Weiner, the personal representative of Enid Weiner, deceased, Scott Weiner, Sandy Weiner and Regan Weiner
Defendants (Appellant/Respondents)
Brian J. Smith, for the appellant Paul Weiner, the personal representative of Enid Weiner, deceased
William G. Woodward, for the respondents Scott Weiner, Sandy Weiner and Regan Weiner
Heard: October 4, 2018
On appeal from the judgment of Justice Pamela L. Hebner of the Superior Court of Justice, dated April 12, 2018, with reasons reported at 2018 ONSC 633.
B.W. Miller J.A.:
Overview
[1] A homeowner’s policy of insurance provides coverage to the homeowner’s relatives “while living in the same household” as the homeowner. The issue on this appeal is whether the respondents were “living in the same household” as the insured homeowner at the time of a fatal accident.
Background
[2] The late Enid Weiner owned a house on Lake Eugenia. The house was constructed in 1969 as a vacation property for her, her husband, and their children. From the late 1980s or early 1990s, it was Enid’s sole residence, before she moved to a nursing home in 2008 or 2009. Although she never resumed full-time residence at the house, her three adult children and their families all continued to use it as a cottage. She would occasionally stay there with them. At all relevant times she was the sole owner. Enid was also the sole named insured under a Homeowners – Broad Form policy with Intact Insurance Company (the “Intact Policy”).
[3] The Intact Policy provides coverage not only for the named insured, but also for all the insured’s relatives “while living in the same household” as the named insured. It covers liability from unintentional bodily injury or property damage arising from an insured’s “personal actions anywhere in the world.” It covers not only the insured’s primary residence, but also the insured’s “seasonal and other residences,” provided that these premises are listed on the Coverage Summary page.
[4] The respondents, Enid’s adult son Scott, his wife Sandy, and their daughter Regan, are defendants in an action brought by the parents and sister of a young man who drowned at the house during a high school graduation party in May 2010. Scott and Regan were both present at the house during the party. The appellant, Enid’s estate, is also a defendant. The plaintiffs’ claim was settled by Scott’s insurer, TD Insurance Company. TD Insurance brought a summary judgment motion seeking a declaration that Intact Insurance is bound to defend and indemnify all defendants against the claims advanced by the plaintiffs. The motion was granted, and the motion judge ordered a declaration that Scott, Sandy, and Regan were insured under the Intact Policy. The motion judge also ordered that Intact Insurance indemnify TD Insurance $62,500, 50% of the value of the settlement with the plaintiffs.
[5] Intact Insurance appeals. The sole issue is whether Scott, Sandy, and Regan are insureds under the Intact Policy and entitled to coverage.
The decision below and the argument on appeal
[6] Central to the motion judge’s analysis is the finding that Scott and his family were not visitors to the house. She noted that he attended at the house when he wished and cared for it as an owner would and (later) took an ownership interest in it. The motion judge adopted reasoning from Canadian Universities’ Reciprocal Insurance v. Halwell Mutual Insurance Co. (2002), 61 O.R. (3d) 113 (C.A.), that “household” can have a flexible meaning, and that “the meaning must be gleaned from interpreting its use in the policy of insurance using the rules of interpretation of contracts and of insurance policies, including that any ambiguity is to be resolved in favour of the insured.” She reasoned that in the “context of this policy and this property … Scott and his family are included in Enid’s ‘household’.”
[7] The appellant argues that the motion judge erred in four respects.
[8] First, the appellant argues that the motion judge embarked on the wrong analysis, posing the salient question as whether Scott was either a visitor to the house or whether it was his household. She concluded he was not a visitor, as he later took an ownership interest in the house, came and went as he pleased, and cared for it as an owner would. The appellant argues that the focus of analysis, however, should not be on Scott’s attitude towards, and use of, the house, but rather his relationship with Enid. That is, whether Scott was a member of the same household as Enid, the policy holder. The appellant argues that the motion judge also failed to pose this question in relation to Sandy and Regan.
[9] Second, the appellant argues that the motion judge erred in her discussion of the meaning of “dwelling” in the Intact Policy. She concluded that the house is identified in the Intact Policy as a single-family dwelling, and that the single-family is Enid’s family, which includes Scott, Sandy, and Regan. Again, the appellant argues that this misdirects the analysis from the relationship between Enid and Scott, Sandy, and Regan, to whether the cottage was a recreational or primary use residence – an irrelevant consideration.
[10] Third, the appellant argues that the motion judge misconstrued Canadian Universities’ as authorizing a new and enlarged conception of “household”, beyond what had been previously recognized in Canadian jurisprudence. Again, the appellant argues that the motion judge erred by focussing on the respondents’ use of the house, rather than on whether the lives of Enid and Scott, Sandy, and Regan had the requisite degree of integration to form a single household.
[11] Fourth, the appellant argues that the conclusion reached by the motion judge was commercially unreasonable, in that it interpreted the Intact Policy in a way that all family members of Enid’s extended family, by virtue of their use of the cottage, would obtain personal liability insurance for their actions anywhere in the world.
Analysis
(1) Standard of Review
[12] The standard of review for the motion judge’s interpretation of the phrase “living in the same household” is correctness. I accept that the application of the contractual provision to the facts of the case attracts deference. However, the motion judge’s interpretation of the contractual phrase “living in the same household” raises an extricable question of law that attracts correctness review. Additionally, the household clause forms part of a standard form homeowner’s insurance policy, and its interpretation thus has precedential value for other insurance policies. Furthermore, the respondents have not pointed to any meaningful factual matrix specific to the parties. Accordingly, the correctness standard of review applies: see Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24; MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, at paras. 40-41, leave to appeal refused, [2016] S.C.C.A. No. 39.
(2) The meaning of “household”
[13] I agree with the appellant that the motion judge erred in law by answering the wrong question about the meaning of the term “household.” The inquiry into Scott’s relationship to the house was not the ultimate question. That inquiry was only relevant to the extent that it shed light on the further question of Scott’s relationship with Enid. Was he (and were Sandy and Regan) relatives “living in the same household” as Enid?
[14] The words “living in” from the Intact Policy refer to the question of residence: Canadian Universities’, at para. 23. Scott’s use of the house was relevant to the question of whether the house was Scott’s residence. If the only question was whether the house was a seasonal residence for Scott, there might be no basis to interfere with the motion judge’s finding that Scott was more than a visitor.
[15] However, the court must also give meaning to the contractual language of “the same household.” As the court held in Wade v. Canadian Northern Shield Insurance Co. (1986), 18 C.C.L.I. 173 (B.C.S.C.), “one can be a resident in a house…without being a resident in or of a household”: p. 181. In that case, the court found that an adult son who had his own apartment but was living in his parents’ apartment while they were vacationing was not a member of his parents’ household because he had not rejoined the family unit: pp. 181-183. Likewise, in Aviva Canada Inc. v. Yaehne, 2005 SKQB 553, 34 C.C.L.I. (4th) 172, the court found that a son who rented the basement of his mother’s house was residing at his mother’s house but was not a member of his mother’s household: paras. 18, 30. Accordingly, it does not follow from the motion judge’s finding that Scott was more than a visitor in relation to the house that he was therefore a member of Enid’s household.
[16] Although “household”, in ordinary speech, can refer either to a residence or a type of community, in the context of insurance law it is the latter. The definition of a “household” has a long history and stable meaning. The leading Canadian exposition was given by Rand J. in The Wawanesa Mutual Insurance Company v. Bell, [1957] S.C.R. 581, at p. 584:
The “household”, in the broad sense of a family, is a collective group living in a home, acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with and an interest in the life of all that gives it a unity. It may, for example, include such persons as domestic servants, and distant relatives permanently residing within it. To some degree they are all admitted and submit to the collective body, its unity and its conditions, particularly that of the general discipline of the family head. They do not share fully in the more restricted family intimacy or interest or concern, but they participate to a substantial degree in the general life of the household and form part of it.
[17] A household is thus a type of community, most readily understood by analogy to a family unit. Although a household is not synonymous with a family, the existence of a household is evidenced by the extent to which its members share the intimacy, stability, and common purpose characteristic of a functioning family unit. For example, its members typically share a residence and resources, and integrate their actions and choices on an on-going and open-ended basis, motivated by “an interest in the life of all that gives it a unity”: Bell, at p. 584; McWhirter et al. v. State Farm Mutual Automobile Insurance Co. (1959), 21 D.L.R. (2d) 743 (Ont. S.C.), at pp. 748-749. More recently, this court offered a similar formulation in Tannahill v. Lanark Mutual Insurance Co., 2011 ONCA 123 (“TannahillONCA”), aff’g 2010 ONSC 3623, 86 C.C.L.I. (4th) 69 (“Tannahill ONSC”): “the term ‘household’ connotes a family like group of people living together with an element of intimacy or community in the relationship”: Tannahill ONCA, at para. 6. It should be noted that although Rand J. understood a household under the governance of a singular person to be the paradigmatic form of the household, we need not. What is essential is not how the household is structured, but the degree to which the choices and actions of all members of the household are motivated by “an interest in the life of all that gives it a unity”.
[18] A household is constituted not only by its members’ patterns of living with each other, but also by their settled intentions. Accordingly, courts have found that a person can maintain membership in a household despite lengthy absences from a common residence, provided there is continued self-identification as a member of the household, with a settled intention to return to the common residence. For example, university students do not necessarily cease to be members of their parents’ household when they move away for the academic year, provided they continue to view the parental home as home base and have an intention to return: Canadian Universities’. Similarly, a parent who is absent from the family home for extended periods because of the requirements of work does not therefore cease to be a member of the household during those absences as long as the parent intends to return: see Campbell v. Royal Insurance Co. of Canada (1991), 115 N.B.R. (2d) 140 (C.A.), at para. 8. Courts have even held that where an estranged spouse has the intention to return and reconcile, the household can survive the separation: Boasley v. British America Insurance Co. (1976), 15 O.R. (2d) 120 (Co. Ct.), aff’d (1977), 15 O.R. (2d) 120n (C.A.).
[19] But the demands of intimacy, unity, and permanence are not slight. The mere fact of co-residence is not enough to constitute membership in a household. In Bell, the insured had been living with his brother indefinitely and was clearly more than a mere visitor, but the Supreme Court still held that he had a “separate identity of life” and thus was not part of his brother’s household: p. 585. In McWhirter, two men rooming together, but leading separate lives were found not to constitute a household. In Tannahill, a daughter visiting her parents for two-and-a-half weeks was held not to be a member of the household. As the application judge stated, “(l)iving in a household is not the same as staying with people in their home during a visit, even if those people are your parents”: Tannahill ONSC, at para. 49.
[20] Because of the demands of intimacy, unity, and permanence required to constitute a household, it would be difficult (though conceptually possible) for a person to be a member of more than one household at a time. The principal exception recognized by the law to date relates to minor children, particularly children of divorced or separated parents who live part time with each parent, and who are understood to be members of both parental households: see Arsenault v. Fitzgerald (1985), 66 N.B.R. (2d) 232 (Q.B.); Harris (Litigation Guardian of) v. Pilot Insurance Co. (1997), 34 O.R. (3d) 633 (C.A.), at pp. 636-638; Canadian Universities’, at para. 22.
(3) The Respondents’ Argument
[21] The respondents submit that the term “household” should be interpreted broadly because it is contained in a coverage clause of the Intact Policy. The respondents rely on the principle that coverage clauses in insurance contracts should be interpreted broadly in favour of the insured, while exclusion clauses should be interpreted narrowly: Canadian Universities’, at paras. 21, 30. According to the respondents, the court interpreted the meaning of “household” narrowly in Tannahill and Bell because those cases involved exclusion clauses, while the court interpreted “household” broadly in Canadian Universities’ because that case involved a coverage clause.
[22] I do not agree. Whether a case involves a coverage clause or exclusion clause may influence the result in borderline cases, but this is not a borderline case. Where the facts are inconsistent with a person being a member of a household in accordance with settled jurisprudence, the fact that the case involves a coverage clause provides no assistance. See, for example, Campbell; Wade; Eichmanis v. Wawanesa Mutual Insurance Company, 2007 ONCA 92, 84 O.R. (3d) 668, at para. 20, leave to appeal refused, [2007] S.C.C.A. No. 178.
[23] The respondents also argue that Wood v. Krebs, 2004 CarswellOnt 3590 (C.A.) (“Wood ONCA”), aff’g [2004] O.T.C. 169 (S.C.) (“Wood ONSC”), establishes the proposition that an adult can belong to more than one household at a time. The facts of that case, in brief, are that an adult child was found to belong to his own household ordinarily, but alternately belonged to his parents’ household when he stayed at their cottage, with or without them being present. When he caused a fire that destroyed a neighbouring cottage, his actions were covered by his parents’ home insurance.
[24] The respondents argue that on the authority of Wood v. Krebs, Scott, Sandy, and Regan should be understood as belonging to their own household in the city, but coming within a second household – Enid’s – while at Enid’s house. That household, according to the argument, is defined exclusively by the relations of the parties to each other while they are at the house. If their lives have the necessary integration while at the house, and their use of the house separately or together forms a regular pattern, then they constitute a household anchored in their joint use of the house. They argue that the criteria for determining the existence of a household should be altered for vacation properties, that the “integration” requirement should be relaxed to the degree of integration needed for families to share a vacation property, and that “permanence” should be understood as an on-going pattern of occasional use for recreational purposes. The analysis, they say, must thus be contextual, and the context is the nature of the use of a multi-family vacation property.
[25] I do not agree. This is a novel reading of “living in the same household”, not in keeping with the established juridical meaning of “household”, and could not have been in the reasonable contemplation of the parties. A person’s membership in a household is not established by a restricted inquiry limited to interactions surrounding the use and management of one particular residence. As the above review of the case law demonstrates, membership in a household is assessed holistically, based on the totality of the parties’ relations and intentions towards each other.
[26] Wood does not stand for the general proposition that an adult child can ordinarily be a member of both his own household and the household of a parent in the context of the use of a family cottage. This would be a significant departure from existing jurisprudence. The respondents have not been able to marshal any other authority for this proposition, from any common law jurisdiction. It is important to note that Wood was given as an endorsement, which is not the vehicle this court uses to depart from established doctrine. It was also decided on a deferential standard of review that is not applicable here (see paragraph 12 above). Nor did this court make any legal pronouncement in Wood on the degree of intimacy, unity, and permanence required to constitute a household. Wood does not establish an exception to the definition of “household” established from Bell through to Tannahill.
(4) Conclusion
[27] Applying the established common law understanding of “household,” the facts found by the motion judge were incapable of supporting a finding that Enid and Scott, Sandy, and Regan had a common life with the intimacy, unity, and permanence required to constitute a household. At the time of the accident, Enid was living in a nursing home. Scott lived with his family in the city and had organized his life around his urban household. Prior to entering the nursing home, Enid lived with Scott’s brother, and not with Scott and his family. In the words of Rand J. in Bell, at p. 585, he maintained a “separate identity of life” from his mother Enid. Unlike in Canadian Universities’, Scott clearly did not see Enid’s house as “home base”: para. 25. There was no compelling evidence that either Scott or Enid organized their lives in conjunction with each other to the degree described in Bell and subsequent cases.
[28] It may be possible, conceptually, for a person to belong to more than one household. But the categories recognized to date are few, relating only to minor children. In any event, there is insufficient evidence on this record of a shared life together.
DISPOSITION
[29] The appeal is allowed, the order for summary judgment in favour of the respondent is vacated, and summary judgment is ordered in favour of the appellants. Costs of the appeal are awarded to the appellant in the amount of $5,000 inclusive of disbursements and HST.
Released:
“CWH” “B.W. Miller J.A.”
“JAN 28 2019” “I agree C.W. Hourigan J.A.”
“I agree G.T. Trotter J.A.”