Insurance Law Blog
Knowledge Centre

Ontario Court of Appeal upholds decision that insurer did not establish, on a balance of probabilities, that insured made material and fraudulent misrepresentations on application for insurance and therefore insured’s life insurance policy was valid

March 14, 2023

Insurance law – Life insurance – Misrepresentation in obtaining insurance – Fraud – Criminal offences – Duties and liabilities of insured – Policies and insurance contracts – void Ab Initio – Practice – Leave to appeal

Costanza (Litigation guardian of) v. Desjardins Financial Security Life Assurance Co., [2023] O.J. No. 373, 2023 ONCA 54, Ontario Court of Appeal, January 26, 2023, K.M. van Rensburg, L. Sossin and J.M. Copeland JJ.A.

Following the death of his father, the 13 year old plaintiff sought a declaration that his father’s life insurance policy was valid and binding on the insurer. The insurer refused to pay the plaintiff on the basis that the insured made a material and fraudulent misrepresentation on his application for insurance. The insurer argued that the policy was void ab initio because the insured represented on the application that he had not been convicted or pled guilty to a criminal offence in the three years preceding the application when, in fact, he was convicted of assault causing bodily harm 2 years, 9 months, and 29 days prior to submitting the application for insurance. The insurer also argued that the insured had an obligation to disclose the fact that he had a criminal history or background when applying for insurance, and that the policy was voidable because he failed to do so.

The Superior Court found that it was possible the insured could have been mistaken in calculating the time between his conviction and the date of his application, and thus the insurer had not proven on a balance of probabilities that the insured had obtained the policy through material misrepresentation or fraud, or that he had a criminal history or background. The Superior Court also found that the insurer had not established that the insured had a criminal history or background and held that the policy was valid and payable to the plaintiff.

On the issues of the insured’s criminal conviction, the Court of Appeal held that the insurer failed to show any palpable and overriding error in the findings of fact of the Superior Court judge and that the findings were entitled to deference. On the issue of the insured’s criminal history or background, the insurer attempted to introduce fresh evidence to advance this argument which was rejected by the Court of Appeal. The Court of Appeal held it was not appropriate to allow the insurer on appeal to fundamentally change the basis on which this argument was made. The appeal was dismissed.

This case was digested by Alicia Catalano, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Alicia Catalano at [email protected].

To stay current with the new case law and emerging legal issues in this area, subscribe here.

Tags

Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: April 11, 2023.

Related

Norm Streu co-authors article for Construction Business magazine
Norm Streu co-authors article for Construction Business magazine Norm Streu co-authors article for Construction Business magazine
New benchmark for damages for injury to dignity for sexual harassment
New benchmark for damages for injury to dignity for sexual harassment New benchmark for damages for injury to dignity for sexual harassment
Damages Awarded Under Intimate Images Act
Damages Awarded Under Intimate Images Act Damages Awarded Under Intimate Images Act
Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability?
Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability? Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability? Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability?
The Dangers of Two Step Offers
The Dangers of Two Step Offers The Dangers of Two Step Offers
Court says federal political parties are subject to BC privacy legislation
Court says federal political parties are subject to BC privacy legislation Court says federal political parties are subject to BC privacy legislation
Court Grants Interim Injunction to Restrain Employees from Competing with their Former Employer
Court Grants Interim Injunction to Restrain Employees from Competing with their Former Employer Court Grants Interim Injunction to Restrain Employees from Competing with their Former Employer
Harper Grey Lawyers complete Mental Health First Aid Certification
Harper Grey Lawyers complete Mental Health First Aid Certification
Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act
Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act
Roshni Veerapen elected as Vice Chair of the Health Law Section
Roshni Veerapen elected as Vice Chair of the Health Law Section Roshni Veerapen elected as Vice Chair of the Health Law Section
Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion
Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion
National Indigenous History Month
National Indigenous History Month
Emilie LeDuc appointed to the British Columbia Law Institute Board of Directors
Emilie LeDuc appointed to the British Columbia Law Institute Board of Directors Emilie LeDuc appointed to the British Columbia Law Institute Board of Directors
William Clark and Kara Hill present at the 2024 Self Governing Professions CLE
William Clark and Kara Hill present at the 2024 Self Governing Professions CLE William Clark and Kara Hill present at the 2024 Self Governing Professions CLE William Clark and Kara Hill present at the 2024 Self Governing Professions CLE
A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair
A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair
arrow icon

Subscribe