If you have clients who have pot plants at home, you should let them know – it isn’t covered under the homeowner’s policy. It was a tough lesson for one Ontario man to learn.
Darren Stewart learned this lesson after losing a number of court battles to get TD General Insurance Co. to pay out $45,000 to cover the theft of 11 medicinal marijuana plants he had growing in his Rockwood, Ont., backyard.
Instead of an insurance payout, Stewart is now obligated to pay TD’s legal costs, some $20,000.
Stewart suffers from chronic pain from a car accident in 1997, and has authorization from Health Canada to grow marijuana. But in 2009 and 2011, his plants were stolen just prior to harvest.
This is when Stewart’s pain got worse.
Stewart expected TD insurance would pay for the replacement value, after reading his policy’s coverage for personal property: “We insure the contents of your dwelling and other personal property you own, wear or use while on your premises which is usual to the ownership or maintenance of a dwelling.”
TD Insurance disagreed.
The claims adjuster looked at the marijuana as a garden-variety plant covered under his extended coverage for landscaping, capping the value at a maximum of $1,000 each for “trees, shrubs and plants.”
Stewart decided to take the insurer to court. (continued.)
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Stewart filed two lawsuits against their insurer claiming $45,000 for the value of the stolen plants and a further $180,000 for each case of breach of contract, mental stress and physical pain, breach of fiduciary duty and infliction of mental and physical suffering.
A Hamilton judge ruled in March 2013 that $1,000 a plant is all they were owed and said TD Insurance’s “conduct was generous, if anything.”
Stewart was ordered to pay their insurer $14,350 in costs.
His next step, an appeal to Divisional Court.
A panel of three judges agreed the marijuana plants should be considered personal property. However: the policy only covers personal property that is “usual to the ownership or maintenance of a dwelling;” meaning that not everyone has a crop of medical marijuana growing in their backyard.
“Fewer than one-third of 1 per cent of the population of Canada were authorized to grow marijuana for their own medical purposes,” the court stated in its ruling. “It seems quite evident that marijuana plants in the backyard are not ‘usual to’ the ownership or maintenance of a dwelling itself.”
The court upheld the original judgment and placed the claim at $11,000 for landscaping.
Stewart’s next step was the Ontario Court of Appeal, to ask permission to present his case. The leave to appeal was denied in July and Stewart was ordered to pay $750 in costs to TD General Insurance. (continued.)
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On top of that, the Divisional Court ruled they must pay $6,000 in costs to TD insurance for losing that court battle.
“Unfortunately they have to pay at three court levels - the trial, the Divisional Court and the appeal court. It’s in excess of $20,000 and that’s just costs to TD. It doesn’t reflect my costs,” Stewart’s lawyer Keith Millikin told the
Toronto Sun. “It’s been a long, hard road and needless to say, they’re (Stewart and his wife) pretty disappointed.”
This
Toronto Sun article was shared on Facebook by Deanna Thickson of the
Insurance Protection Group in Cobourg, Ont.
