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Bill 125, Innocent Persons Insurance Recovery Act, 2017

Policies of home insurance typically include an 'Intentional Act Exclusion' which provides that an insured person may not recover for any loss arising from their own intentional or criminal act. Here is an example of an Intentional Act Exclusion from a home insurance policy:

 

This Policy does not insure:

 

(d) loss or damage caused by a criminal or wilful act or omission of the Insured or of any person whose property is insured hereunder;

 

The Intentional Act Exclusion in a policy of home insurance gives effect to the common sense notion that a person should not recover from their insurer for a loss which they intentionally caused.

 

The effect of the Intentional Act Exclusion can be controversial where a policy covers multiple insureds. Where a policy of insurance covers multiple insureds, the effect of Intentional Act Exclusion is to prevent all insureds from recovering for a loss intentionally caused by any one insured. On the one hand, this prevents one insured from committing insurance fraud for the benefit of another. On the other hand, denying coverage to all insureds can result in an injustice where one insured is victimized by another.

 

The 1989 decision of the Supreme Court of Canada in Scott v Wawanesa Mutual Insurance Co illustrates the problem of the 'Innocent Co-Insured'. Mr. and Mrs. Scott took out a policy of home insurance with Wawanesa Mutual Insurance. Their 15 year old son deliberately set fire to their home without their knowledge or complicity. Wawanesa Mutual Insurance denied their claim for compensation. The Supreme Court of Canada agreed that the Scotts were not entitled to compensation. Since the son was an 'insured' for the purpose of the policy, the effect of the Intentional Act Exclusion was to deny coverage to his mother and father for damage caused by the fire that he deliberately set.

 

Recent incidences of domestic violence have raised the profile of the Innocent Co-Insured problem.

 

On April 26, 2017, the Liberal MPP for Lawrence-Eglington Mike Colle introduced the Bill 125, Innocent Persons Insurance Recovery Act, 2017, in the Ontario Legislature. If it is enacted, Bill 125 will amend Ontario's Insurance Act to add an additional section 118.1. The proposed section 118.1 will allow an Innocent Co-Insured to recover from their insurer to the extent of their interest in the insured property. The proposed section 118.1 provides as follows:

 

Recovery by innocent persons

 

118.1 (1) If a contract contains a term or condition excluding coverage for loss or damage to property caused by a criminal or intentional act or omission of an insured or any other person, the exclusion applies only to the claim of a person,

 

(a) whose act or omission caused the loss or damage;

(b) who abetted or colluded in the act or omission;

(c) who,

(i) consented to the act or omission, and

(ii) knew or ought to have known that the act or omission would cause the loss or damage; or

(d) who is in a prescribed class.

 

Recovery limited to proportionate interest

 

(2) Nothing in subsection (1) allows a person whose property is insured under the contract to recover more than the person's proportionate interest in the lost or damaged property.

 

If Bill 125 was the law at the time that Mr. and Mrs. Scott lost their home, then they would have recovered from their insurer for the losses caused by their son.

 

It remains to be seen whether Bill 125 will be enacted as law in Onario. However, the Liberal government has indicated that it will support Bill 125.

 

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

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A Short Introduction to Canada's Medical Assistance in Dying Legislation

Canada's Medical Assistance in Dying legislation ("MAID") came into effect on June 16, 2016.  According to my recollection, most of the media coverage focused on the June 6th, 2016, deadline to pass legislation imposed by the Supreme Court of Canada in Carter v. Canada (Attorney General) [1] and the drama surrounding Justin Trudeau's "manhandling" of opposition whip Gord Brown before a debate of the legislation.  Relatively little attention was paid to the legislation itself. 

 

Set out below is a short introduction to the MAID legislation.    

 

A candidate for medically assisted death must be an adult resident of Canada who suffers from a "grievous and irremediable medical condition".  Pursuant to subsection 241.2(2) of the Criminal Code, a person is considered to have a "grievous and irremediable medical condition" if they meet all of the following criteria: 

  1.  they have a serious and incurable illness, disease or disability;
  2.  they are in an advanced state of irreversible decline in capability;
  3.  that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;
  4.   their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

The medical practitioners who administer medically assisted deaths are the gatekeepers of the process.  A medical practitioner may be a licensed physician or, in some provinces, a nurse practitioner.  A patient initiates the process by submitting a written request to a medical practitioner.  According to subsection 241.2(3) of the Criminal Code, the medical practitioner must satisfy themselves:

  1.  That the written request has been signed by two independent witnesses;  
  2.  That the patient has been informed that he or she may withdraw the request at any time;
  3.  That the candidate meets all of the criteria of a "grievous and irremediable medical condition"; and
  4.  That another independent medical practitioner has provided a written opinion confirming that the candidate meets all of the criteria of a "grievous and irremediable medical condition". 

After the request in writing is made, the medical practitioner must wait 10 clear days before administering a medically assisted death.  Immediately before performing the procedure, the medical practitioner must give the patient an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

 

Informed consent of the patient is the cornerstone of the MAID legislation.  The MAID legislation does not allow, for example, someone with a power of attorney for personal care to request a medically assisted death on behalf of another.  The MAID legislation also prohibits a medically assisted death if the patient loses the capacity to give informed consent before the procedure is administered.  Currently, the MAID legislation does not allow a patient to authorize a request for a medically assisted death in advance, although this is the topic of an independent review announced by the government on December 13, 2016. 

 

The MAID legislation is still in its infancy.  Time will tell whether it strikes the right balance between death with dignity, on the one hand, and preventing abuses, on the other. 

 

[1]  Carter v. Canada (Attorney General), 2015 SCC 5

 

Steve Grant is a lawyer at Madorin, Snyder LLP, a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

 

 

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Is My Ganja Insured?

The Liberal government is poised to introduce legislation that will legalize marijuana for recreational use in Canada.  One hopes that the Liberals will have the good sense to regulate the cultivation of marijuana, but it is within the realm of possibilities that legal home grow operations proliferate under the new law.  If the black market prices for marijuana are sustained in the open market, then home grow crops could be among the most valuable assets in some households.  That begs the question of whether home growers will be compensated by their home insurers if their crops are stolen or damaged in a fire.

 

Maybe not.  The cultivation of marijuana for medical use is already legal in Canada, and at least one insurance claim arising from the loss of a marijuana crop has come before the Court.

 

Stewart v. TD General Insurance Company is a 2014 decision of the Ontario Divisional Court that involved a claim for compensation for the loss of a marijuana crop.  Mr. Stewart was licensed to possess and cultivate medical marijuana for his own consumption.  He had an outdoor grow operation at his home.  Just when his crop was ready to be harvested, thieves ripped the plants out of the ground and made off with them.  Mr. Stewart estimated the cost of replacing the plants and the crop was just under $50,000.  He asked his home insurer to compensate him for the cost of replacing the plants and the value of the lost crop.  However, the Insurer only approved the claim pursuant to a limited extension of coverage that applied to trees, shrubs and plants.   The wording of the extension provided as follows: 

 

"15. Trees, shrubs and plants

Trees, shrubs and plants being part of your landscaping on your premises. We will pay up to 5% of the limit of insurance applicable to your dwelling, subject to a maximum of $1,000 for any one tree, shrub or plant including debris removal. You are insured against loss cause (sic) by fire, lightning, explosion, impact by aircraft or land vehicle, riot, vandalism or malicious acts, theft or attempted theft."

                                                      

As set out in the extension, the policy limit for coverage for trees, shrubs, and plants was $1,000 per plant.  The Insurer paid Mr. Stewart a total of $11,000.  Mr. Stewart sued his Insurer to recover the balance of his loss.  He alleged that the loss of the marijuana fell within the coverage for ‘personal property’ to which much higher policy limits applied.  The policy wording for ‘personal property’ coverage is set out below:    

 

"COVERAGE

Coverage B – Personal Property (contents)

1. We insure the contents of your dwelling and other personal property you own, wear or use while on your premises which is usual to the ownership or maintenance of a dwelling." 

                                                            

The Divisional Court dismissed Mr. Stewart’s claim.  While all personal property inside Mr. Stewart’s home was covered, personal property outside of his home was only covered if it was “usual to the ownership or maintenance of a dwelling.”   The Court heard evidence that only one third of one per cent of Canadians cultivated marijuana in their homes.  The Court found that the plants were not “usual to the ownership or maintenance” of a dwelling and ruled that the loss of the plants did not fall within the personal property coverage in the policy.  The Court agreed with the Insurer that the only coverage for the marijuana in the policy was the extension pertaining to trees, shrubs and plants.  Therefore, Mr. Stewart had already been paid everything he was entitled to.  

 

The lesson to be drawn from the Stewart case is not that loss or damage to a marijuana crop will never be fully covered by a home insurer.  The outcome in the Stewart case might have been different if Mr. Stewart’s crop had been grown indoors or if the loss had occurred in the future when home grow operations are more widespread.   Furthermore, policy wording does vary from insurer to insurer, and Mr. Stewart may have had a different outcome if he had been insured by another insurer.  

 

The moral of the Stewart case is simply that home growers cannot take it for granted that their ganja is insured, and they should talk to their agent or broker to ensure that they have coverage for their crops.

 

Ted Dreyer is a construction and insurance lawyer at Madorin, Snyder LLP. Madorin, Snyder LLP is a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  Please visit our construction law page.

 

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

 

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