



COURT OF APPEAL FOR ONTARIO

CITATION: Skunk v. Ketash, 2018 ONCA 450

DATE: 20180514

DOCKET: C64258

Rouleau, Roberts and Fairburn JJ.A.

BETWEEN

Christopher Skunk

Appellant (Plaintiff)

and

Laurel Ketash and
Jevco
    Insurance Company

Respondent
(Defendants)

Edward S.E. Kim, for the appellant

Alex W. Demeo, for the respondent, Jevco Insurance
    Company

Heard: May 8, 2018

On appeal from the judgment of Justice F.B. Fitzpatrick
    of the Superior Court of Justice, dated July 25, 2017, with reasons reported at
    2017 ONSC 4457.

REASONS FOR DECISION

[1]

This is an appeal from the determination of a
    legal question under Rule 21.01 of the
Rules of Civil Procedure,
resulting in the dismissal of the appellants claim against the
    respondent insurer
.
The appellant was a passenger
    in his spouses vehicle when it was taken without consent by an uninsured
    driver, Laurel Ketash. The vehicle was then involved in an accident and the
    appellant was injured.

[2]

The motion judge determined that the appellants
    spouse had no applicable and collectible bodily injury liability insurance
    because Ms. Ketash was driving the vehicle without the owners consent.  He
    concluded that because the appellants spouse owned the vehicle, he was
    excluded from uninsured automobile coverage under the
Insurance Act,
R.S.O. 1990, c I.8,

the
Ontario Automobile Policy
(OAP)

and the
OPCF
    44R Family Protection Coverage Endorsement.

[3]

Section 265(2) of the
Insurance Act

provides the following definition of uninsured automobile:

uninsured automobile means an automobile
    with respect to which neither the owner nor driver thereof has applicable and
    collectible bodily injury liability and property damage liability insurance for
    its ownership, use or operation, but does not include an automobile owned by or
    registered in the name of the insured or his or her spouse.

[4]

Section 5.1.2 of the applicable insurance policy
    includes a similar exception to the uninsured automobile coverage: this does
    not include an automobile owned by or registered in the name of the insured person
    or their spouse. Section 1.11 of the
OPCF 44R Family Protection
    Coverage,
reads in virtually identical terms: an
    uninsured automobile does not include an automobile owned by or registered in
    the name of the insured or his or her spouse.

[5]

The motion judge found no ambiguity in the plain
    language of the statute or the contractual policies at issue and concluded that
    the language is clear on its face.

[6]

The appellant maintains that the motion judge
    erred in his interpretation of the provision. He argues that the exception to
    uninsured automobile insurance must be afforded a purposive interpretation.
    It was never intended to preclude insurance for a person injured while in their
    spouses properly insured motor vehicle, only because that vehicle has been
    taken without consent of the spouse. He submits that any other interpretation
    would lead to an absurd result, as exemplified by the facts of this case.  He
    relies upon this courts judgment in
Jubenville v. Jubenville,
2013 ONCA 302, 360 D.L.R. (4th) 109, to advance this argument.

[7]

We disagree.

[8]

The principles of statutory interpretation
    require that the court first look to the plain meaning of the statute. If the
    words have a plain meaning and give rise to no ambiguity, then the court should
    give effect to those words:
R. v. Clarke,
2013
    ONCA 7, 293 C.C.C. (3d) 369, at para. 18. We conclude that the meaning of the
    definition of uninsured automobile under s. 265(2) is clear and unambiguous:
    uninsured automobile means
but, does not include an automobile
    owned by or registered in the name of the insured or his or her spouse
[emphasis added]
.



[9]

As a general rule, clauses in insurance policies
    will be granted a liberal meaning in favour of the insured and those clauses
    excluding coverage [will be] construed strictly against the insurer:
Chilton
    v. Co-operators General Insurance Co.
(1997), 97 O.A.C.
    369, at para. 19. The difficulty here is that the provision, virtually
    identical to the wording of the same definition of uninsured automobile under
    s. 265(2), is clear on its face. In order to arrive upon the appellants
    interpretation of the provision, it would be necessary to read words into the
    provision. The provision would have to be interpreted as meaning that an
    uninsured automobile  does not include an automobile owned by or registered
    in the name of the insured or his or her spouse, [but only where the insured or
    his or her spouse has deliberately chosen not to insure the vehicle].  As this
    court noted in
Chilton
, at para. 20, 
[
r
]
eading the words out of an insurance policy or giving the words an
    opposite meaning is not synonymous with a liberal interpretation. The same can
    be said for adding the phrase that would be required to give effect to the
    appellants submission.

[10]

Although
Jubenville
, at para. 25, suggests a reason for the exclusion within s. 265(2)
     to prevent individuals from relying on uninsured automobile coverage instead
    of insuring each of their vehicles  there could be other reasons for the
    legislative choice of language. For instance, the legislature may have intended
    that the claimant spouses not be able to recover should they place the vehicle
    into an uninsured automobile context by, for example, driving the vehicle
    while an excluded driver. Where, as here, the exclusion provided for under s.
    265(2) and the policy is unambiguous on its face, it is not the role of this
    court to rewrite the provision based on speculation. Although it is proper to
    resolve conflicts between two different interpretations, the provision presents
    no ambiguity.

[11]

The fact that this may produce a harsh result
    does not mean that it is an absurd result, as it is in accordance with the
    plain meaning of the unambiguous provision:
Chilton
, at para. 21.

[12]

We
    also disagree with the appellant that even if he was not injured by an
    uninsured automobile, the claim should not have been dismissed. Section 5.2.1
    of the
OAP

only allows
    coverage for damages arising from an uninsured or unidentified automobile,
    which is not the case here.

[13]

The
    motion judge made no error in dismissing the motion and we decline to
    interfere.

[14]

The
    appeal is dismissed. The respondent shall have costs in the amount of $5,000.

Paul
    Rouleau J.A.

L.B
.
    Roberts J.A.

Fairburn J.A.


