



COURT OF APPEAL FOR ONTARIO

CITATION:
    Jubenville v. Jubenville, 2013 ONCA 302

DATE: 20130508

DOCKET: C56259

Rosenberg, Gillese and Rouleau JJ.A.

BETWEEN

Ashley Jubenville and Kelly Jubenville

Plaintiffs (Respondents)

and

Kevin Jubenville
,
    Wawanesa Mutual Insurance Company,
Superintendent of
    Financial Services and Economical Mutual Insurance Company/Economical Compagnie
    Mutuelle dAssurance

Defendants (
Appellants
)

Lauren Bloom and Jennifer
    McGlashan, for the appellant Economical Mutual Insurance Company/Economical
    Compagnie Mutuelle dAssurance

Michael Stocks, for the
    appellant Superintendent of Financial Services

Laura Pearce, for the respondents

Heard: March 20, 2013

On appeal from the order of Justice Bruce G. Thomas of
    the Superior Court of Justice dated October 15, 2012.

Rouleau
    J.A.:

OVERVIEW

[1]

This is an appeal from the motion judges finding that the respondent
    Ashley Jubenville is entitled to benefit from the uninsured motorist coverage in
    the standard automobile insurance policy issued to Kelly Jubenville by the
    appellant Economical Mutual Insurance Company (Economical).

[2]

The motion judges decision came as a result of a motion for the
    determination of a question of law in the form of a special case brought pursuant
    to rule 22.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. The question of
    law put to the motion judge was:

Was the Mercury Cougar, owned by, registered to and driven by
    Kevin Jubenville on the date of the accident an uninsured automobile as
    defined in the O.P.F. 1,
[1]
s. 265 of the
Insurance Act
and under policy number 9556129?

[3]

If the Mercury Cougar did not fall within the definition of an
    uninsured automobile, and therefore this question was answered in the
    negative, Ashley would be denied recovery under the policy. The motion judge
    held that the Mercury Cougar did qualify as an uninsured automobile, thereby entitling
    Ashley to claim pursuant to the uninsured provisions in the policy.

FACTS

[4]

The respondent Ashley Jubenville was five years old when she was injured
    in a single vehicle motor vehicle accident that occurred on May 23, 1993. At
    the time of the accident, Ashley was a passenger in a Mercury Cougar owned by,
    registered in the name of, and driven by her father, the appellant Kevin
    Jubenville.

[5]

The other respondent, Kelly Jubenville, is Ashleys mother and, on the
    day of the accident, was Kevins spouse. Kelly insured her two vehicles under a
    standard automobile insurance policy issued by the appellant Economical. Kelly
    did not insure Kevins Mercury Cougar. For the purposes of the motion, the
    parties agreed that Kevins vehicle was not otherwise insured.

[6]

Kellys insurance policy and s. 265 of the
Insurance Act
,
R.S.O. 1990, c. I.8, as amended to
    1993, contained nearly identical terms relating to uninsured automobile
    coverage.
[2]
The terms in Kellys insurance policy were as follows:

4.1

The insurer agrees to pay all sums that,

4.1.1
a person insured under the Policy
is legally entitled to recover from the owner or
    driver of an uninsured automobile or unidentified automobile as damages for
    bodily injury resulting from an accident involving an automobile;

4.2.2
    person insured under the policy
means,



(c) in respect of a
    claim for bodily injury or death,

(ii)
    the insured and his or her spouse and any dependent relative of either,

1.
    while an occupant of an uninsured automobile,  .

4.2.4
    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
.

[
Emphasis
added.]

[7]

Although insured is not defined in s. 265 of the
Insurance Act
or in the policy, it is defined in s. 224(1) of the
Insurance Act
, as amended to 1993,
as follows:

In this Part,  insured means a person insured by a contract whether
    named or not and includes every person who is entitled to no-fault benefits
    under the contract whether or not described therein as an insured person.
[3]

Section 265 is in the same part of the
Insurance
    Act
as s. 224.

[8]

The Rule 22 motion ultimately turned on the proper interpretation of
    the insured in the exclusionary phrase contained at the end of the definition
    of uninsured automobile in s. 4.2.4 of the policy. This phrase excludes an
    automobile owned by or registered in the name of
the
    insured
or his or her spouse (emphasis added) from being considered as an
    uninsured automobile.

[9]

If the insured in this section means either the owner of the policy (Kelly)
    or all those who are insured under the policy (which would include Kelly),
    Ashley would be denied access to coverage by the exclusionary language in the
    definition of uninsured automobile. This is because at the relevant time, Kelly,
    the insured, was the spouse of the owner of the uninsured vehicle, Kevin.

[10]

Alternatively,
    if the insured referred only to the person making the claim, in this case
    Ashley, then the automobile would qualify as an uninsured automobile and Ashley
    would be entitled to recover under the policy. This is because Ashley did not
    own the uninsured vehicle and, at five years old, had no spouse.

[11]

The
    motion judge accepted the second interpretation, i.e. that the insured
    referred to the person making the claim. As a result, he held that Kevins
    Mercury Cougar was an uninsured automobile within the meaning of Kellys policy
    and s. 265 of the
Insurance Act
and that Ashley was therefore able to claim under the policy
.

ISSUE ON APPEAL

[12]

The
    appellant submits that the motion judge erred in law when he determined that
    the Mercury Cougar, owned by, registered in the name of, and driven by Kevin on
    May 23, 1993, was an uninsured automobile as defined in Kellys policy and s.
    265 of the
Insurance Act
.

THE APPELLANTS POSITION

[13]

The
    appellant argues that in order to obtain coverage under Kellys insurance policy,
    Ashley must fulfil two requirements. First, Ashley must come within the
    definition of a person insured under the policy in s. 4.2.2(c)(ii). She must
    therefore be the insured, his or her spouse, or a dependent relative of
    either. The appellant concedes that Ashley qualifies under this first part
    because she was a dependent of Kelly, who is the insured, at the time of the
    accident.

[14]

Second,
    Ashley must have been an occupant of an uninsured automobile. However, the
    definition of an uninsured automobile in s. 4.2.4 expressly excludes an
    automobile owned by or registered in the name of the insured or his or her
    spouse. Here, Kevin owned the Mercury Cougar and it was registered in his name.
    Kevin was Kellys spouse. Because Kelly was the insured, the Mercury Cougar
    was excluded from the definition of an uninsured automobile.

[15]

In
    the appellants view, therefore, the motion judge erred in his interpretation
    of the insured in the context of a vehicle owned by or registered in the
    name of the insured or his or her spouse. The insured referred to in the
    definition of uninsured automobile in s. 4.2.4 should not, as the motion
    judge held, be restricted to only Ashley. Defining the insured as being
    limited to the person bringing the claim is a novel conclusion at law
    unsupported by the authorities and, in the appellants submission, would lead
    to an absurd result.

[16]

Even
    if a broader definition of the insured is adopted and Ashley is taken to be
    one of the insured persons under the policy, in order to find for the
    respondents, the court would still have to conclude that Kelly  the named
    insured  was not one of the insured under the policy for the purposes of s.
    4.2.4. Otherwise, the statutory exclusion will apply. The appellant argues that
    defining the insured as excluding the named insured in the policy could not have
    been intended by the drafters of the statute. The definition of the insured throughout
    the section, both in s. 4.2.2(c)(ii) and in s. 4.2.4 should be consistent and,
    at a minimum, include the named insured under the policy.

[17]

This
    interpretation is, in the appellants submission, consistent with this courts
    decisions in
Taggart (Litigation guardian
    of) v. Simmons
(2001)
,
    52 O.R. (3d) 704 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No.
    206, and
McArdle v. Bugler
, 2007
    ONCA 659, 87 O.R. (3d) 433. In those decisions, the court determined that the
    phrase the insured as it appears in s. 4.2.2(c)(ii) was to be interpreted
    broadly and include all those who come within the definition of insured
    provided in s. 224(1) of the
Insurance Act.
The insured
    therefore includes every person who is entitled to no-fault benefits under the
    contract. As a result, the insured that appears in the definition of
    uninsured automobile must encompass the complete class of persons entitled to
    statutory accident or no-fault benefits under the Act, and not just the person
    making the claim.

[18]

Finally,
    the appellant submits that the motion judge failed to consider the complete
    contractual and statutory context of the section. Specifically, the appellant
    argues that had the legislature intended only to exclude uninsured vehicle
    owners and their spouses from coverage under the uninsured automobile provisions,
    and not other parties, it would have drafted an exclusion which depended on the
    identity of the claimant. For example, s. 4.3 of the policy does precisely
    that. It makes reference to the identity of a potentially covered person in
    relation to the qualification of a dependent relative in the following terms:

4.3
    Qualification of Dependent Relative
 Where a dependent relative referred to in section 4.2.2(c) is the
    owner of an automobile insured under a contract, or sustains bodily injury or
    dies as the result of an accident while the occupant of his or her own
    uninsured automobile, such dependent relative shall be deemed not to be a dependent
    relative for the purposes of this Part.

Therefore, the intent of the legislature is made clear
    by reference to the surrounding provisions in the statute.

ANALYSIS

[19]

In
    my view, the appeal should be dismissed and the decision of the motion judge
    upheld.

[20]

This
    courts decisions in
Taggart
and
McArdle
confirm that the
    broad definition of insured in s. 224(1) applies to s. 265. As a result, the
    reference in s. 4.2.2(c)(ii) of the policy to the insured includes
    Ashley, because she comes within the definition in s. 224.

[21]

When
    the insured is used again in the definition of uninsured automobile in s.
    4.2.4, it can have one of two meanings. It can, as the appellant submits, have
    the same meaning as it does in s. 4.2.2(c)(ii), that is, all persons coming
    within the definition of insured in s. 224. This would, at a minimum, include
    Kelly as the named insured. Alternatively, it could, as the motion judge found,
    mean only the insured person making the claim. Both interpretations are reasonable.

[22]

Given
    this ambiguity, it was open to the motion judge to turn to interpretive
    principles in ascertaining the meaning of the insured in this context. The
    conclusion he reached is, in my view, the correct one. I say so for three
    reasons.

[23]

First,
    the language of the
Insurance Act
should be interpreted harmoniously
    with the scheme and object of the Act and the intention of Parliament. As the
    motion judge noted, the purpose of the
Insurance Act
is to internalize
    the costs of driving so that they do not fall on the public purse. This
    principle militates in favour of interpreting the definition of uninsured
    automobile in a way that does not exclude dependent relatives of policy
    holders from access to insurance coverage. In
Wing v. 1198281 Ontario Ltd.
(2006), 46 C.C.L.I. (4th) 154 (Ont. S.C.), Brown J. came to a similar
    conclusion. In that case, he was interpreting a fleet policy of insurance where
    there are often many insured in the one policy. In explaining why he
    interpreted the equivalent of s. 4.2.4 in the same way as the respondents in
    this case, Brown J. stated, at para. 22, that to

reduce the number of persons covered by the uninsured
    automobile provisions of a policy, especially in cases involving fleet policies
    of insurance, and require more claimants to look to the Fund for compensation 
    would run counter to the intent of the Act to internalize the costs resulting
    from injuries caused by uninsured automobiles.

[24]

Second,
    a principle of interpretation specific to insurance contracts and legislation
    is that any ambiguities in provisions governing the extent of coverage should
    be resolved in favour of the insured: see
Wigle v. Allstate Insurance Co. of
    Canada
(1984), 49 O.R. (2d) 101 (C.A.), at p. 116, leave to appeal to
    S.C.C. refused, [1985] S.C.C.A. No. 135;
July v. Neal
(1986), 57 O.R. (2d) 129 (C.A.), at p. 135
. This principle also supports
    the motion judges conclusion.

[25]

Finally,
    the motion judges decision finds support in the interests of fairness and
    public policy. Excluding an individual like Ashley from coverage leads to an
    unjust result. Ashley, at five years old, had no control over the scope of her
    parents insurance coverage. Even accepting that the goal of the exclusionary
    phrase is to prevent individuals from relying on uninsured automobile coverage instead
    of insuring each of their vehicles, such a goal would not be undermined by the
    interpretation given to the section by the motion judge. The motion judges
    interpretation makes certain that people who are responsible for insuring their
    vehicles and their spouses will be penalized for failing to insure each vehicle
    they own. This is achieved by disentitling the claimant and his or her spouse
    from any claim under the uninsured coverage whenever one or the other is the
    owner of the uninsured vehicle. Those who have no control over coverage
    decisions, such as dependent relatives, will nonetheless be entitled to make a claim.

[26]

As
    to the appellants submission that s. 4.3, Qualification of Dependent Relative,
    indicates that the legislature intended that the insured in the definition of
    uninsured automobile be given a broader interpretation, I disagree. Section
    4.3 adds little to the interpretation exercise. The fact that the legislature
    chose in s. 4.3 to specifically disqualify a dependent relative from making a
    claim where the dependent relative is the occupant of his or her own uninsured
    automobile is in fact consistent with the respondents interpretation. Had the
    legislature wished to disqualify dependent relatives who were occupants of
    uninsured automobiles owned by their parents, it would have drafted s. 4.3 to do
    so. By limiting the exclusion in s. 4.3 to dependent relatives who themselves own
    the uninsured automobile, the legislator is, by omission, indicating that
    dependent relatives who do not own the uninsured automobile should not be
    excluded.

CONCLUSION

[27]

For
    these reasons, I would dismiss the appeal. The parties have agreed that there
    should be no costs of the appeal.

Paul Rouleau J.A.

I agree M. Rosenberg
    J.A.

I agree E.E. Gillese
    J.A.

Released: May 8, 2013





[1]
O.P.F. 1 stands for Ontario Automobile Policy Form 1.



[2]
The
Insurance Act
uses the term contract in place of policy. These
    reasons will use the section numbers from the relevant insurance policy, rather
    than those found in s. 265 of the
Insurance Act.



[3]
The words no-fault benefits have since been replaced by statutory accident
    benefits.


