Skunk v. Ketash,(2016 ONSC 2019) is significant because Justice Newton purports to apply a different interpretation to the law on uninsured/underinsured automobiles where the plaintiff was the vehicle’s owner or the owner’s spouse.  It modified an earlier, 2004, Superior Court decision of Justice Quinn called Fosker v. Thorpe.
In Skunk, the plaintiff, Christopher Stark was the spouse of the vehicle’s owner and a passenger in the vehicle.  The defendant, Ketash crashed the vehicle and the plaintiff sustained serious injuries.  The owner (Mrs. Skunk) alleged that her husband, the Plaintiff, took the vehicle without her permission and permitted the defendant, Ketash, to operate it.  She alleges that Ms. Ketash did not have the owner’s consent to operate the vehicle.
Mr. Skunk therefore claimed as against his own insurer, Jevco for coverage under s. 265 of the Insurance Act and the OPCF-44R endorsement.
Jevco took the position that the vehicle was uninsured because the driver, Ketash, did not have the consent of the vehicle’s owner to possession of the vehicle because Ketash was charged with theft.

Jevco brought a summary judgment motion, but not relying on the consent defence. Rather, it relied on the definition of “uninsured automobile” under s. 265(2) of the Insurance Ac.  This definition includes the provision that the uninsured automobile does NOT include an automobile owned by or registered in the name of the insured or… her spouse”.  Jevco argued that Mr. Skunk had no coverage under the uninsured automobile provisions of the policy because the vehicle was owned by his wife.

The court considered the decision in  Fosker v. Thorpe  which involved a plaintiff who was run over by her own vehicle while in the process of being stolen.  However, Justice Quinn decided that there was no uninsured  coverage because the plaintiff owned the (stolen) vehicle.  He applied principles of statutory interpretation and concluded that the definition of uninsured vehicle was clear and unambiguous. By extension, Justice Quinn held that Fosker was not entitled to coverage under the OPCF-44 (inadequately insured motorist).

Justice Newton felt bound by the Fosker decision with respect to uninsured automobile coverage but concluded that it was open to him to interpret the OAP contract independently. He analysed the purpose of uninsured motorist coverage and concluded that denying someone coverage in the circumstances was at least “ambiguous” such that the policy could be interpreted against the insurer.

Jevco was therefore denied summary judgment.

It should be noted that Jevco appealed to the Court of Appeal but its appeal was quashed for lack of jurisdiction (decision released November 10, 2016) because the decision should have been appealed to the Divisional Court with leave.

It is unfortunate that Jevco appealed to the wrong court.

It would have been helpful for the Divisional Court to weigh in on Justice Quinn’s strict interpretation of “uninsured automobile” in Fosker and the absurd result flowing from his interpretation.  It would have certainly been open to the Divisional Court to overturn Fosker and leave the potential of uninsured motorist coverage open for Mr. Skunk.  Indeed, with conflicting decisions between Fosker and Skunk, it would be very helpful for the Court of Appeal to weigh in on this issue.