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
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
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
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 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
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
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
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