The Ontario Divisional Court has dismissed an appeal in an insurance case over stolen marijuana plants, but for different reasons than the original decision.

In Stewart v. TD Insurance, the plaintiffs insured the contents of their residence under a policy with the defendant insurer. Stewart was licensed to possess and cultivate marijuana for medicinal purposes. The decision is silent on the issue but I assume the plaintiff Miller had a vested interest in these plants. Anyway, in September 2009 six marijuana plants growing in the plaintiff’s back yard were stolen. In September 2011 another five plants were stolen from the back yard.

After each incident the plaintiff claimed under his home policy to recover the cost of the stolen plants. The insurer paid the claim up to a maximum of $1,000 per plant, relying upon the exclusion for trees, shrubs, and plants:

EXTENSIONS OF COVERAGE

15. Trees, shrubs and plants

Trees shrubs and plants being part of your landscaping on your premises. We will pay up to 5% of the limit of insurance applicable to your dwelling, subject to a maximum of $1,000 for any one tree, shrub or plant including debris removal. You are insured against loss cause (sic) by fire, lightning, explosion, impact by aircraft or land vehicle, riot, vandalism or malicious acts, theft or attempted theft.

The plaintiffs sued the insurer after each loss, taking the position that the stolen marijuana plants were actually personal property covered under the policy:

Coverage B – Personal Property (contents)

  1. 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.

Aside from suing for the value of the stolen plants (apparently much more than $1,000 per plant), the plaintiffs also sued for $360,000 (twice at $180,000) for breach of contract, mental stress and physical pain, breach of fiduciary duty and infliction of mental and physical suffering.

The motions judge found that the claims were limited to $1,000 per plant, based on the policy exclusion for plants. He held that the provision for trees, shrubs and plants was put into the part of the policy that provides coverage for items that are not contents of the dwelling. He held it would be a stretch to find that the Contents section of the policy would cover items that were not contained in the dwelling. He also rejected the plaintiffs' argument that the marijuana plants were not part of the "landscaping" of the premises.

The Divisional Court dismissed the appeal but for different reasons. The Court disagreed with the motions judge that the coverage did not include items that are not contained within the dwelling. 

The plain language of Coverage B is for “contents of your dwelling and other personal property … on your premises”. [emphasis added]

However, the Divisional court noted that Coverage B contained another qualifier:

The marijuana plants must be “usual to the ownership or maintenance of a dwelling”.  The policy does not specify “your dwelling”.  It reads “a dwelling”.  The fact that marijuana plants might be usual to the ownership of Mr. Stewart’s dwelling because he is an authorized cultivator or marijuana is beside the point.     Moreover, at the material times in this proceeding, fewer than one-third of one percent of the population ofCanada were authorized to grow marijuana for their own medical purposes.  It seems quite evident that marijuana plants in the backyard are not “usual to” the ownership or maintenance of a dwelling itself.I therefore agree with the conclusion of the motions judge that the loss does not fall within the ambit of Coverage B, albeit for a different reason.

The moral of this case is: If you happen to get licensed to grow pot and need to store it in the backyard, get a few Dobermans.

See Stewart v. TD General Insurance Company, 2014 ONSC 854 (CanLII).