Ont. court finds stolen marijuana plants not personal property ‘usual to the ownership…of a dwelling’ under a homeowners’ policy

In Stewart v. TD General Insurance Company, a three-member panel of the Ontario Divisional Court dismissed the appeal from the motion judge’s ruling that the plaintiffs were entitled to just $1,000 for each of their 11 stolen marijuana plants that were being used for medicinal purposes, but did so for different reasons.

The Court found that while the plants were personal property, they were not usual to the ownership of “a dwelling” because even though the plaintiff insureds 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”.

The decision again highlights the importance of what language is used in the policy. However, in interpreting that language, the Court seems to have taken cognizance of extrinsic evidence to support its apparent view that the language was clear.

The Court stated in part:

[12] While the marijuana plants are still attached to the soil, they may not fall within the category of personal property… By the time the loss occurs, the thief has converted immovable property to movable property, from real property to personal property.

[14] However, there is another qualifier contained in Coverage B. 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.

[15] Moreover, at the material times in this proceeding, fewer than one-third of one percent of the population of Canada 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.