The Ontario Court of Appeal has ruled that under the province’s regime an automobile owned by or registered in the name of the insured or his or her spouse is not an "uninsured automobile."

In Skunk v. Ketash, the appellant was a passenger in his spouse's vehicle when an uninsured driver took it without consent. The appellant was injured when the vehicle was involved in an accident.

Hoping to dismiss the appellant’s claim, the defendant brought a motion to interpret the meaning of "uninsured automobile", as provided in Section 265(2) of the Insurance Act and the Ontario Provincial Change Form 44R Family Protection Coverage Endorsement (OPCF 44R):

"uninsured automobile" means an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse. [Our emphasis]

The appellant's spouse's Ontario Automobile Policy (OAP 1) included a similar exception in its "uninsured automobile" coverage.

The motion judge determined that the appellant's spouse had no applicable and collectible bodily injury liability insurance because the vehicle had been driven without the owner's consent. Because the appellant’s spouse owned the vehicle, he was excluded from uninsured automobile coverage under the Insurance Act, the OAP 1, and the OPCF 44R, as there was no ambiguity in the plain language of the statute or the contractual policies at issue.

At the appeal court, the appellant argued that the motion judge erred in his interpretation and that the exception to "uninsured automobile" insurance was never intended to preclude a person injured while in a motor vehicle that he or she or their spouse owned, but for the fact that it was taken without consent. Any other interpretation would lead to absurd results, the appellant argued.

The appeal court disagreed and reiterated that a court must first look at the plain meaning of a statute. It concluded that the meaning of "uninsured automobile" under s. 265(2) is clear and unambiguous.

It found that the appellant's interpretation would require reading words into the provision, namely an exception “where the insured or his or her spouse has deliberately chosen not to insure the vehicle." The court noted that this amounted to more than giving a liberal interpretation to a policy clause whose wording is virtually identical to that found in Ontario's automobile regime which is clear in its face.

The court's role is not to rewrite a provision based on speculation. Even if the interpretation may produce a "harsh result", there is nothing absurd about interpreting the plain meaning of an unambiguous provision. It dismissed the appeal.