The Plaintiffs, Yvonne Moelker, the Estate of Lawrence “Larry” Hamel, and Lawrence Hamel’s siblings, Paul, and Louis Hamel, brought an action against the driver and owner of an unidentified vehicle, Security National Insurance Company, and the Motor Vehicle Accident Claims Fund. The action arose out of a September 2019 accident in which Lawrence, a pedestrian, was struck by an unidentified vehicle, and died of his injuries one month later.
At the time of the loss, Yvonne was covered under a Security National automobile insurance policy, which included the OPCF44R Family Protection Endorsement (“OPCF44R”). Yvonne, Larry’s Estate, and his siblings made a claim with Security National for unidentified vehicle coverage, under s. 265 of the Insurance Act, and the OPCF44R. Security National denied the claim and brought a summary judgment motion arguing that neither Yvonne nor Larry was a “person insured under the contract”, because they were not “spouses.”
Subsection 265 (1)(b) of the Insurance Act provides that:
265 (1) Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that,
…
(b) any person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract resulting from an accident involving an automobile.
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Subsection 265 (2) defines “person insured under the contract” as follows:
265(2) For the purposes of this section,
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“person insured under the contract” means
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(c) in respect of a claim for bodily injuries or death,
(i) any person while an occupant of the insured automobile,
(ii) the insured and his or her spouse and any dependent relative of either,
(A) while an occupant of an uninsured automobile, or
(B) while not the occupant of an automobile or of railway rolling stock that runs on rails, who is struck by an uninsured or unidentified automobile,
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The OPCF44R defines ”insured person” as follows:
1.6 “insured person” means
(a) the named insured and his or her spouse and any dependent relative of the name insured and his or her spouse, while
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(iii) not an occupant of an automobile who is struck by an automobile.
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Section 265(1) of the Insurance Act contains the following definition of “spouse”:
“spouse” means either of two persons who,
(a) are married to each other,
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act, or
(c) are not married to each other and live together in a conjugal relationship outside marriage.
The definition of “spouse” in the OPCF44R is slightly more specific:
1.10 Spouse means either of two persons who:
(a) are married to each other;
(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person making a claim under this policy; or
(c) have lived together in a conjugal relationship outside marriage,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
At the time of the accident, Yvonne and Larry were not, and had never been married. They had been in a long-term relationship for 27 years but lived separately for the last 24. Yvonne and other witnesses gave evidence that Yvonne and Larry could not live together for prolonged periods, because Larry had significant mental health challenges Yvonne testified that she got Larry a separate residence specifically so that they could be together, and that this living arrangement assisted them in maintaining their relationship. They still spent considerable time together, including during Larry’s periodic hospitalizations. Yvonne and other witnesses described Yvonne and Larry as “life partners.”
Security National relied on caselaw from the priority dispute context, specifically, on Intact v Dominion,[1] to argue that “living together in a conjugal relationship” meant residing together in the same dwelling (for a period of at least three years directly before the accident). The Plaintiffs maintained the applicable definition “spouse” should be the expansive definition from the family law context. They pointed out that priority disputes were between insurers, overautomatic no-fault benefits, and therefore did not require consideration of the “broader social context of dependency,” which tort bodily injury claims did.
The Court held in the Plaintiffs’ favour, citing the differing policy considerations underlying the unidentified motorist and priority schemes. It acknowledged that in the priority context, “living together in a conjugal relationship” meant living in the same dwelling, but noted in family law, the approach was holistic. In the family context, there were several indicia of “living together in a conjugal relationship”, of which residing in the same dwelling was but one.
Ultimately, the Court agreed that despite identical wording, the different underlying policy considerations in the priority and unidentified motorist contexts needed to guide the interpretation of “spouse”. The proper focus in the unidentified motorist context was social dependency, making a holistic approach appropriate. Accordingly, though Larry and Yvonne did not reside in the same dwelling, for the purpose of unidentified motorist coverage, they were “spouses”.
This case reminds us that we can never assume a word or phrase always means the same thing in a particular area, i.e., automobile insurance, or even in different parts of a statute. When interpreting statutes, one must always read contextually, and look beyond formal similarity to the purpose behind the law.
See McGratten et al. v. Director Motor Vehicle Accident Claims Fund et al, 2023 ONSC 1995
[1] 2020 ONSC 7982
