Executive Summary: Key Legal and Evidentiary Issues

• Competing summary judgment motions turned on whether the insurer properly relied on a vacancy exclusion after a fire destroyed the insured property.
• The central factual dispute concerned “vacancy”: the house was furnished and regularly visited, but no one resided there for at least 30 days before the loss.
• Sonnet alleged misrepresentation at the application stage (owner-occupied status), but failed to produce the original 2021 online application or reliable data proving what was asked and how it was answered.
• The insurer also advanced a “material change in risk” theory based on the disconnection of public utility power and use of a generator system, but its underwriting evidence was incomplete and factually inaccurate.
• The court interpreted the policy’s vacancy definition disjunctively, concluding that prolonged absence of residents rendered the property vacant despite furnishings and intermittent use.
• Ultimately, coverage was denied under the vacancy exclusion, the plaintiff’s claim was dismissed, and although Sonnet succeeded on summary judgment, the court refused to award it costs because of its procedural conduct.

Background and parties

This case arises from a coverage dispute following a residential fire loss in New Brunswick. John Philip Trecartin owned a property at 2 Point Road in Nerepis, New Brunswick, which he had held for many years and where, at different times, he, his partner, his sister, and later a friend, Shane Ouellette, had lived. By 2021, Trecartin himself was living in the Moncton area pursuant to parole conditions and did not reside at the Nerepis property on a permanent basis, although he visited it frequently. In July 2021, he obtained a home insurance policy from Sonnet Insurance Company through an online application. The policy covered the Nerepis house and included standard wording on vacancy, misrepresentation, and material change in risk.

On November 3, 2021, the property was destroyed by fire. Sonnet denied coverage on the basis that the house was “vacant” for more than 30 consecutive days prior to the fire. It later added further defences, alleging misrepresentation in the application (that the property would be owner-occupied) and failure to report a material change in risk when public utility power was disconnected and a generator system was put in place. Both sides brought motions for summary judgment: the plaintiff sought partial summary judgment on liability (coverage only, leaving damages for trial), while Sonnet sought dismissal of the action in its entirety.

Key policy provisions and interpretive principles

Three policy provisions framed the dispute. First, the vacancy clause stated there was no coverage when the insured house, “to your knowledge, [had] been vacant for more than 30 consecutive days.” “Vacant” was defined in two alternative ways: (1) all residents had moved out with no intent to return, or (2) the house did not contain furnishings or household belongings sufficient to make it habitable. The policy also contemplated a “Vacancy Permit” if vacancy was disclosed and endorsed, but no such permit had been obtained in this case. Second, the misrepresentation clause provided that if a person applying for insurance falsely described the property or “misrepresents or fraudulently omits” a material circumstance affecting the insurer’s judgment of the risk, the contract is void for the property in relation to which the misrepresentation is material. Third, the material change in risk clause mirrored the statutory condition in the Insurance Act: any change material to the risk and within the insured’s control and knowledge that is not promptly reported in writing voids the contract as to the affected part, subject to the insurer’s rights to adjust premium or cancel.

Justice Hamou applied established principles of insurance policy interpretation. Clear language is given effect where unambiguous; only if ambiguity remains do courts rely on general contract construction principles, and if those fail, ambiguities are construed contra proferentem against the insurer, with coverage provisions read broadly and exclusions narrowly. In evaluating the vacancy definition, the court also considered appellate authority, particularly Coburn v Family Insurance Solutions, which interpreted similar vacancy wording disjunctively—meaning an insurer can establish vacancy either because residents have moved out with no intent to return or because the dwelling lacks sufficient furnishings to be habitable, and need not prove both.

Factual context: occupancy, visits, and the fire

The evidence showed that while the policy was obtained in mid-2021, the occupancy pattern at the property had shifted over time. Ouellette had lived there from around 2017 until spring or summer 2021, but the exact timing of his departure relative to the policy inception was unclear. By the time of the fire, both parties accepted that Ouellette had long since moved out. After his release from incarceration in June 2020, Trecartin was required to reside in the Moncton area. He did not live full-time at the Nerepis house, but he obtained day passes and later a more open pass from his parole officer permitting him to go to the property. Parole records documented nine day passes between August 2020 and May 2021, and thereafter he had ongoing permission to attend. Affidavit evidence from his parole officer, gas receipts, and an affidavit from his son corroborated that he frequently drove to the Nerepis property.

At those visits, Trecartin would sometimes stay overnight, occasionally accompanied by his son or daughter. His son confirmed that during visits they cleaned, cooked, and watched movies at the house, and that his father went there several times a month. Importantly, the house remained fully furnished. Items included couches, chairs, tables, television and speakers, beds and dressers, major kitchen appliances, dishes, cookware, cutlery, towels, personal items such as toothpaste, and cleaning supplies. In other words, on the plaintiff’s evidence, the premises remained physically habitable and equipped for ordinary living.

Utility arrangements became a second factual axis of the case. After the policy was issued, and before the fire, Trecartin had public utility power from NB Power disconnected. He testified that he did so because of cost and frequent outages in the area. In its place, he installed a generator system powered through multiple marine batteries. The generator could be switched off during his absences, and similarly the water supply could be shut off at a valve to prevent freezing in the pipes. Sonnet argued that shutting off power and water signalled vacancy; the plaintiff countered that this was merely prudent management of a cottage-style property and did not make the premises uninhabitable, given the generator system and functioning water when turned on.

Application of the vacancy exclusion

The vacancy analysis proceeded in two stages. First, the court considered the “habitable” limb of the definition—whether the house lacked furnishings or belongings sufficient to make it habitable. On this point, the court accepted that the home remained fully furnished and equipped, and that the presence of furniture, appliances, household goods, and personal items rendered it habitable. Shutting off power and water during absences did not, in itself, make the property uninhabitable, particularly where generator power could be engaged and water turned back on. Nor did the switch from NB Power to generator power alone deprive the house of basic habitability.

The pivotal question therefore shifted to the “residents have moved out with no intent to return” branch of the definition. The wording, in the court’s view, presupposed the existence of residents—that is, persons residing at the property with some degree of permanency or regularity—as the starting point. The inquiry was not simply whether someone visited often, but whether there were actual residents who had moved out and whether any true residency continued during the relevant period.

Although Trecartin was deeply attached to the property and visited frequently, the court held that he did not “reside” there in the relevant sense; his legal residence and day-to-day life were in Moncton under parole conditions. Past occupancy by Ouellette did not assist because both parties agreed he had left well before the loss and the record did not show that anyone else had taken up permanent residence. The court considered the evidence of overnight stays and activities such as cooking and watching movies but found that, even taken at its highest for the plaintiff, this reflected intermittent use—not an ongoing residential presence. Drawing on Coburn and other vacancy cases, the court accepted that a person can spend significant time at a property yet still not be an occupant if they fundamentally live elsewhere.

On that basis, the court concluded that by the time of the fire there were no residents at the Nerepis property and that this state of non-residency persisted for at least 30 days. The prolonged absence of any resident, despite visits for checks and occasional stays, “effectively created a vacancy” as defined in the policy. Because no vacancy permit had been sought and no notice of vacancy given, the vacancy exclusion was triggered and coverage was properly denied. The judge therefore held there was no genuine issue for trial on the issue of vacancy and that Sonnet was entitled to rely on the exclusion.

Alleged misrepresentation in the online application

Although the vacancy finding was determinative, the court went on to consider the alternative defences in case its vacancy analysis was wrong. Sonnet alleged that, when applying online, Trecartin misrepresented that the dwelling would be owner-occupied, thereby voiding the policy under the misrepresentation clause. The difficulty was evidentiary: Sonnet could not produce the actual 2021 online application completed by Trecartin. Instead, it filed a 2025 application template and internal database screenshots, arguing that a database entry “owner occupied” should be linked back to how Trecartin must have answered an occupancy question.

During the hearing, Sonnet provided a clearer screenshot where the internal record showed “How is the dwelling occupied – Owner occupied.” Counsel invited the court to infer that this resulted from Trecartin answering “yes” to a question such as “will you be living here on your coverage start date?” But that question only appeared explicitly in the 2025 template, not in any proved 2021 version. An affidavit from a paralegal who tested the online application process in 2025 further complicated matters, as it showed different options on the “ownership type” screen (“I own and live in it,” “I rent it from someone else, and I live in it,” and “I own, don’t live in and rent it out.”). This undercut any simple one-to-one mapping between present-day templates and what was asked in 2021.

Given the serious consequence of a misrepresentation finding—voiding the policy—the court required rigorous proof. It found that Sonnet’s evidence fell short. The internal “owner occupied” label was not clearly tied to a particular question and answer in the 2021 application; there was little detail about data management, retention, and how the database fields were populated from user inputs. The court declined to draw an adverse inference against Sonnet for failing to produce the original application, finding the more plausible explanation to be deficient electronic record-keeping rather than deliberate withholding. Nonetheless, on the record as it stood, the insurer had not shown there was no genuine issue for trial about what was asked, what was answered, and whether any misrepresentation actually occurred. As a result, the misrepresentation defence did not justify summary dismissal of the claim.

Material change in risk and the generator power system

The third disputed issue was whether disconnecting NB Power and installing a generator-based system constituted a material change in risk that, being unreported, voided the policy. Initially, Sonnet had not supported this argument with underwriter evidence. On the first motion date, after hearing the plaintiff’s submissions, Sonnet sought leave to file a late affidavit from an underwriter, Kristina Miloje, effectively to “lead trump.” The court eventually allowed the affidavit in, along with responding expert evidence from the plaintiff, but characterized Sonnet’s timing and rule breaches as problematic and cost-consequential.

Substantively, the Miloje affidavit contained factual assumptions that did not align with the record. It referred to tenants leaving the property and to the cut-off of public utility power, but incorrectly treated Ouellette as a tenant at the time of the application and did not address the functioning generator system that replaced NB Power at the house. In response, the plaintiff tendered an affidavit from Peter Morris, an underwriting expert, who focused on how risk should be evaluated when a property transitions from grid power to generator power and on whether such a change, viewed in context, would truly alter the insurer’s risk assessment or premium.

New Brunswick authority holds that a change is “material” if it would have affected the insurer’s decision to undertake the risk or set the premium, and the test includes a subjective element: the insured must actually know that the change is material to the insurer’s risk or premium assessment. On the evidence before the court, Sonnet had not established, at the summary judgment stage, that the move to generator power and intermittent shutting off of systems was a material change, nor that Trecartin understood it as such. The underwriter affidavit, being based on incomplete and partly inaccurate facts, lacked the reliability needed to ground summary judgment. Moreover, fuller evidence—technical electrical expertise, detailed underwriting practice, and more complete testimony from Trecartin—would be needed to resolve this issue at trial. Accordingly, the court held there remained a genuine issue for trial on material change in risk.

Procedural history, summary judgment framework, and costs

The case traveled a procedurally heavy path. The parties engaged in multiple case-management appearances to address evidentiary disputes, late filings, and amended pleadings. Sonnet amended its defence mid-stream to add misrepresentation and material change defences; filed several affidavits late and outside a consent order’s timelines; and sought adjournments and leave to introduce new evidence close to and even during the motion hearing. Applying Rule 22 and appellate guidance on summary judgment, the judge reaffirmed that the only test is whether there is a genuine issue requiring a trial and that parties must put their “best foot forward” on such motions, often “leading trump” at the outset. The court also noted that a judge should not, on their own motion, order a “mini-trial” without a party’s request.

On costs, the Rules of Court presumptively entitle the successful party on a motion for summary judgment to costs, but costs remain discretionary. Here, although Sonnet ultimately prevailed on its summary judgment motion because of the vacancy exclusion, the court criticized its conduct—missed deadlines, breach of a consent order, last-minute affidavits, and tactical objections that prolonged the process. In the court’s view, a full trial might have been more efficient than the protracted pre-trial motion practice that ensued. Exercising its discretion, the court declined to award any costs to Sonnet, expressly noting that its conduct unnecessarily lengthened and complicated the proceedings.

Outcome and parties’ positions

In the final analysis, the vacancy exclusion controlled the outcome. The court interpreted the policy in line with established principles and comparable case law, assessed the residency and use of the property, and concluded that the house had been vacant, as defined in the policy, for more than 30 consecutive days prior to the fire. Because no vacancy permit had been obtained and no vacancy notice provided, Sonnet was entitled to deny coverage on that basis alone. While the insurer did not succeed in obtaining summary judgment on its alternative defences of misrepresentation and material change in risk—both of which were left as issues that would have required a trial—the decisive vacancy finding meant the plaintiff could not recover under the policy at all. As a result, Sonnet’s motion for summary judgment was granted, Trecartin’s motion for partial summary judgment on coverage was dismissed, and the entire claim was dismissed. Sonnet was thus the successful party on liability and coverage, but the court ordered no damages in its favour (because it merely resisted the claim) and specifically declined to award it any costs, so the total monetary award or costs ordered in favour of Sonnet was effectively zero.