Gill v The Wawanesa Mutual Insurance Company, 2023 BCCA 97
Reading Time: 3 minutes (approx.)
By: Chloe Jardine (Articled Clerk)
In December 2019, water backed up and escaped from a drain located in the sun deck area of a home owned by the Gills (“the Gills”). The sun deck was akin to an exterior room, with lighting installed in the ceiling and furnishing. Two walls of the sun deck faced the exterior of the home (looking inside) and two walls faced the outdoors.
Water backup from a sewer on the Gills’ property caused the sun deck drain to overflow, resulting in water damage to the interior. The Gills’ insurer, The Wawanesa Mutual Insurance Company (“Wawanesa”), denied coverage on the basis that the sun deck was not located “within [the Gills’] dwelling.”
The Gills pursued a summary trial seeking a declaration that their insurance coverage with Wawanesa applied. At this summary trial, the judge concluded using the “average person interpretation” that the sun deck was outside the exterior walls and therefore not “within the dwelling” for the purposes of the insurance policy. The Gills’ action against Wawanesa was dismissed, which the Gills appealed.
At issue was the interpretation of the “Sewer Backup Endorsement” section of the Gills’ policy, which read:
“Sewer Backup” means the sudden and accidental backing up or escape of water or sewage within your dwelling or detached private structures through a:
- Sewer on the premises” [para 8]
On appeal, the judge looked to the whole insurance policy to interpret whether the sun deck was “within the dwelling.” The policy defined “dwelling” as “the building…wholly or partially occupied as a private residence.” The judge stated that the sun deck was included as part of the building being it was within the exterior walls because the sun deck was included within the home’s exterior foundation, therefore included within the definition of “dwelling.” Further, this interpretation was consistent with the manner of which the Gill family used the sun deck: as an extension of their indoor living space. The judge on appeal found the trial judge’s analysis focused solely on the plain language definition of “within,” and conflated “within” with “inside.”
Given this, the appeal was allowed and the Gills were granted a declaration that their insurance policy with Wawanesa applied.