Legal battle focuses on how a household is defined

The Ontario Court of Appeal has ruled that a group of family members who all used a property outside of Toronto were not living in the same household as the insured homeowner when a fatal drowning took place in 2010, overturning a lower court’s ruling.

In the ruling Ferro v. Weiner, 2019 ONCA 55 by the Ontario Court of Appeal, judges found that the adult son of the woman who owned the property was not covered by her insurance, because they did not live in what the court considered to be a shared household. Enid Weiner owned the property on Lake Eugenia, outside of Toronto, and used it as a residence until she moved to a retirement home about 10 years ago.

After that point, Weiner’s three adult children continued using the property as a cottage, and she would sometimes stay there with them.

After the drowning of Dean Ferro, Weiner’s son Scott Weiner, his wife Sandy Weiner and their daughter Regan Weiner were named as defendants in a legal action by the young man’s family. Enid Weiner was also named in the action.

The legal dispute was over whether Enid Weiner’s homeowner’s insurance covered her other family members, as she was the sole person named as insured under a broad form policy from Intact Insurance.

Ultimately, the Court of Appeal concluded that Scott, Sandy and Regan Weiner were not entitled to coverage under Enid Weiner’s plan, noting that the “mere fact of co-residence is not enough to constitute membership in a household.”

Part of this, noted the ruling, was due to the living situation of the family members.

“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,” said the ruling.

The ruling said “it may be possible, conceptually, for a person to belong to more than one household.”

However, it also noted “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.”

This finding reversed a ruling by Justice Pamela Hebner of the Ontario Superior Court of Justice, from January 2018.

Hebner had ruled that Scott, Sandy and Regan Weiner were covered by the Intact insurance policy.

“Questions of coverage must be interpreted broadly, in favour of the insured,” said the ruling.

“Scott and his family were not visitors to the cottage. Scott took an ownership interest in the cottage. He attended the cottage when he wished. He cared for the cottage as an owner would,” it also said.

At the time of the drowning, Scott Weiner’s home was insured by TD Insurance Company. In 2014, Scott’s insurer, TD Insurance Company, settled the claim with the young man’s family for $125,000, but Intact did not contribute to the settlement.

TD wanted Intact to contribute toward the settlement, and a summary judgment motion was brought to obtain “an order declaring that the late Enid Weiner’s property insurer is bound to defend and indemnify [Scott, Sandy and Regan Weiner] 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 [per cent] of the value of the settlement with the plaintiffs,” said the Court of Appeal ruling.

One of the lawyers involved in the case says the Court of Appeal ruling “provides a clear, concise and common-sense review of what it means to belong to a household.”

“A household is not a place but is instead a ‘type of community’ whose members share a unity in life as opposed to having separate identities of life,” says Brian Smith, of Wallace Smith LLP, in London, Ont., who represented Paul Weiner, the personal representative of Enid Weiner, who died in 2011.

Bevin Shores, an associate at Agro Zaffiro LLP in Hamilton, Ont., says the decision clarifies the approach to take when interpreting the common law interpretation of what a household is.

“In broad terms, this decision illustrates yet another example of how courts address the tension between the need to have flexibility in contractual wording in some instances — such as language intended to apply to a range of situations — while at the same time serving the need to limit ambiguity,” she says. Shores says the court characterized the common law interpretation of a household as “established.”

“[F]rom my perspective as a practitioner, I think the decision refines and clarifies the approach to take when interpreting [what a household is],” she says, noting the court defines a household as having “intimacy, unity and permanence” and also notes that, while it is possible for a person to belong to one household, the categories where this has happened are few in number.

“I think this is useful for insurers, insureds and counsel alike in determining how far the flexibility of the term ‘household’ extends,” she says.