Published In: Insurance Law Newsletter 11.May.21 May 11, 2021

Case Summary: Insurer successfully applies vacancy exclusion to deny coverage to intentionless insured

Vacancy exclusion applies where insured moved into a retirement home with no ability to intend to return home.

Insurance law – Homeowner’s insurance – Water damage – Vacancy exclusion – Practice – Summary judgments

Gregson (Litigation guardian of) v. CAA Insurance Co. (Ontario), [2021] O.J. No. 2168, 2021 ONSC 3041, Ontario Superior Court of Justice, April 23, 2021, M.R. Gibson J.

The insurer applied for summary dismissal of the insured’s action seeking coverage for property damage caused by a water loss, on the basis that the policy’s vacancy exclusion applied to negate coverage.

The insurer issued a comprehensive homeowner’s policy to the insured in respect of the property. During the policy period, the insured suffered from various infirmities, including cognitive impairment.  The insured was hospitalized and then moved into a retirement home where her condition declined and she was deemed incapable of managing her property. The insurer was not notified of the vacancy.

The property sustained water damage 146 days after the insured left the property vacant.

The policy excluded loss or damage occurring after the dwelling was vacant for more than 30 consecutive days. The policy defined “vacant” as circumstances where “all occupants have moved out with no intention of returning, and no new occupant has taken up residence.”

The insured’s litigation guardian argued that the intent to not return to the property had not crystalized at the time of the loss. The court found the insured lost her ability to form intention prior to the loss, despite the fact that she may have had a desire to return home. As there was no objective intention to return to the property, the vacancy exclusion applied.

This case was digested by Erika L. Decker, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Erika L. Decker at