Author: Sudevi Mukherjee-Gothi, Partner, Pallett Valo LLP.

With an increasing aging population, the risk of a loved one being forced to leave their home indefinitely, is also on the rise. But what happens when there is damage to the property while away? The recent decision in Gregson v. CAA Insurance, addresses such a scenario and the conclusion reached was that the house had been vacated and therefore, there was no coverage for property damage, which occurred during that time period.

The Plaintiff, who sustained water damage to her house in March 2017, had not been living at the property when the property experienced a crack in a water pipe. The Plaintiff had stopped living in her house in October 2016 and moved between the hospital and a retirement home. In March 2017, after the water damage, the Plaintiff was deemed incapable, and her lawyer acted under a Power of Attorney. The lawyer admitted that since October 2016, he only attended at the house infrequently, to check the mail and heat. No one was spending the night at the property nor had access to the property.

The Plaintiff herself, did not return to the property and in fact, passed away in September 2019. The lawyer was appointed Estate Trustee 10 days after the water damage had already occurred.

A Claim was made for the property damage to the insurer of the house. The insurer sought an Order dismissing the action, which rested on the assertion that at the material time, the property was vacant for more than 30 consecutive days, with the policyholder having moved out with no intention of returning.

After reviewing the evidence, the Court concluded there was insufficient evidence of planning, to conclude that there was an objective intention to return. There was no plan for live in or daily assistance.

The case reinforces the importance putting a plan into play, when a loved one has to move out due to medical reasons. Vacancy endorsements can be obtained, if a loved one is going to be out of the house for a significant period of time. However, the home insurance policy will indicate how often the property needs to be checked, and what is required to be carried out for coverage to remain in force. The best option is to speak with your insurance company or insurance broker and ensure that they are notified of this unfortunate situation, when it occurs.

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Mississauga Board of Trade