In a September 27, 2010 decision, the Ontario Superior Court of Justice dismissed a homeowner’s claim for water and mould damage on the grounds that the home was vacant at the time of the loss.  The insured, an elderly woman, moved into an extended care facility with her husband when she developed dementia and other health problems requiring twenty-four hour care.  The basement of their home flooded after a water pipe broke, and the house became infested with mould.

Although in ordinary insurance vernacular unoccupied premises are not vacant until the contents have been removed, in this case the policy contained a specific definition of the word “vacant”.  In this particular policy, the home became vacant when the occupants moved out with no intention to return.  Since the wife had moved to an institution because of a medical condition that would only become worse, there could be no intention to return, and the fact that the furnishings were left behind made no difference.  According to the court, the fact that utility bills were paid, and that the insured and her family members made occasional visits to the home, did not display an intention to return.

Citation: Maracle v. Bay of Quinte Mutual Insurance Co., 2010 ONSC 5217 (CanLII)

Richard Hayles, B.A., J.D.

Brief informational summaries about commercial litigation matters in the courts of Ontario and other developments are periodically published on this website. They are intended to be a general comment or general discussion, not legal advice and should not be relied upon as legal advice. Should you require legal advice, please contact info@heydary.com or 416 972 9001.