Do regular visits to a furnished property suffice to defeat a vacancy exclusion clause? Not according to a decision rendered by the Court of King's Bench of New Brunswick on April 30, 2026. The decision states that without actual residence, the clause applies and leaves the insured without any compensation. Therefore, the Court of King's Bench of New Brunswick, Trial Division, Judicial District of Moncton, granted Sonnet's motion for summary judgment and dismissed the claim in its entirety.

A fire at a property no one lived in

The dispute concerns Sonnet's refusal to compensate Éric Trecartin following a fire that destroyed his property located in Nerepis, New Brunswick, on November 3, 2021. Mr. Trecartin had taken out a home insurance policy with Sonnet in July 2021 by completing an online insurance application through the company’s web application. Sonnet invoked the vacancy exclusion clause on the ground that the property had remained unoccupied for more than 30 consecutive days before the loss.

At the time the policy was taken out and at the date of the loss, Mr. Trecartin was residing in the Moncton area due to conditions attached to his parole. He acknowledges that he did not reside in the Nerepis property and that a friend, Shane Ouellette, had resided in the property from 2017 until the spring or summer of 2021. Both parties acknowledge that he had left the property well before the date of the loss.

In August 2021, Mr. Trecartin disconnected the electrical supply from the NB Power public grid because of the cost and frequency of power outages in the area, as stated during his examination for discovery. He then set up a generator powered by 20 marine batteries to provide the electricity supply, without notifying Sonnet, with whom he had already taken out the insurance policy. Furthermore, no vacancy notice was given to the insurer, and no vacancy permit was obtained.

To support the frequency of his visits, Mr. Trecartin filed gas purchase receipts, an affidavit from his son confirming five or six visits together during which they cleaned, cooked and watched films, and affidavit evidence from his parole officer indicating that an unrestricted pass had been granted to him as of May 2021 due to the frequency of his visits to the property.

Mr. Trecartin also provided a list of the contents present in the residence, including living room and bedroom furniture, full appliances, dishes and bathroom items — an inventory consistent with a habitable dwelling.

Sonnet subsequently amended its statement of defence to add two alternative grounds: a misrepresentation in the insurance application regarding the occupancy of the property, and a failure to disclose a material change in the risk, namely the disconnection from the public electrical grid. The proceedings involved several case management hearings before the motions on the merits were heard over two days.

What counts as occupancy?

Mr. Trecartin argued that his regular visits and the furnishings present were sufficient to establish occupancy of the property, while Sonnet maintained that the absence of actual residence triggered the exclusion clause, regardless of the frequency of the visits. In Mr. Trecartin’s view, no vacancy notice was required because the property was not vacant.

Sonnet brought a motion for summary judgment seeking dismissal of the claim in its entirety. It submits that even accepting Mr. Trecartin's evidence that he visited the property several times a month for extended periods, the property would nonetheless be considered vacant within the meaning of the policy. It relies on Coburn v Family Insurance Solutions, 2014 BCCA 73, to argue that the vacancy exclusion clause must be interpreted disjunctively.

On the misrepresentation issue, Sonnet submits that Mr. Trecartin answered "owner-occupant" to the question regarding the occupancy of the property, which renders the policy void.

On the material change issue, it relies on Duguay v Lloyd's Underwriters to argue that failing to move into a property for which an owner-occupant policy was taken out constitutes a material change rendering the policy void. Sonnet further submits in the alternative that the use of a generator powered by 20 marine batteries and a unique configuration itself constituted a material change in the risk.

Regular visits do not amount to residence

The essential facts relating to vacancy are, overall, not in dispute between the parties. The Court first examines the precise wording of the policy, which defines vacancy disjunctively: a property is vacant either if the dwelling does not contain sufficient furniture or household effects to be habitable, or if all residents have left the premises without any intention of returning.

On the first branch, the Court finds that the property was equipped with furniture and household effects that rendered it habitable, and that turning off the water and electricity during absences did not render the property uninhabitable. The first branch of the definition of vacancy is therefore not met.

On the second branch, the Court adopts a disjunctive interpretation consistent with Coburn v Family Insurance Solutions. The term "residence" connotes a degree of permanence, a place to "land" or a home. The British Columbia Court had found in Coburn that even an insured who spends a great deal of time at a property is not an occupant of it if he continues to reside elsewhere.

Applying that reasoning, the New Brunswick Court concludes that Mr. Trecartin's visits, whatever their frequency, do not constitute residence, and that the record does not support a finding that Mr. Trecartin, or anyone else, resided at the property with any degree of permanence or regularity prior to the loss. The prolonged absence of persons from the property, notwithstanding regular checks and visits, in fact constituted vacancy.

The property is therefore deemed to have been vacant for at least 30 days before the loss, and the vacancy exclusion clause in the policy applied.

Misrepresentation and material changes

Although the claim is resolved by the vacancy clause, the Court examines subsidiarily the two other grounds raised by Sonnet — a matter of interest to practitioners, as they illustrate the evidentiary requirements for voiding a policy. Sonnet neither produced the original 2021 insurance application form nor disclosed it to Mr. Trecartin during the litigation.

Furthermore, the Court recalls that a change is material if it would have affected the acceptance of the risk or the determination of the, but that evidence of such a change is required. In New Brunswick, material change is a subjective standard: the insured must have had actual knowledge that the change in question would have affected his premium or the acceptance of the. There is no evidence to suggest that Mr. Trecartin was aware of the materiality of the change in electrical power source.

The affidavit of Ms. Miloje, Sonnet's underwriter, was moreover disregarded on the ground that it was filed out of time and that it rests on inaccurate facts and incomplete information. The Court concludes that the evidence submitted would require a more thorough examination of the underwriting process and electrical expertise, so that a genuine issue requiring a trial remains on this point.

Court declines to award costs

The Court nevertheless declines to award costs to Sonnet, criticizing its counsel for missed deadlines, late filings and other procedural conduct. Significant costs had moreover been awarded to Mr. Trecartin in the oral decision of October 14, 2025, relating to the late filing of Ms. Miloje's affidavit.