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

Jonathan Meadows recognized as a Litigation Star by Benchmark Canada ® 2024 in three areas of expertise
Jonathan Meadows recognized as a Litigation Star by Benchmark Canada ® 2024 in three areas of expertise Jonathan Meadows recognized as a Litigation Star by Benchmark Canada ® 2024 in three areas of expertise
Six Harper Grey lawyers selected by Benchmark Canada® 2024 as Litigation Stars in the area of Insurance Law
Six Harper Grey lawyers selected by Benchmark Canada® 2024 as Litigation Stars in the area of Insurance Law
ParaTough Cup raises over $510,000 for Para Sport in Canada
ParaTough Cup raises over $510,000 for Para Sport in Canada
24 Harper Grey lawyers recognized as leaders in their field by Benchmark Canada 2024
24 Harper Grey lawyers recognized as leaders in their field by Benchmark Canada 2024
Adam Way participates in panel at Axis Insurance & AXA XL Loss Prevention virtual event
Adam Way participates in panel at Axis Insurance & AXA XL Loss Prevention virtual event Adam Way participates in panel at Axis Insurance & AXA XL Loss Prevention virtual event
Richard Bereti shares environmental law expertise in Halsbury’s Laws of Canada – Environmental
Richard Bereti shares environmental law expertise in Halsbury’s Laws of Canada – Environmental Richard Bereti shares environmental law expertise in Halsbury’s Laws of Canada – Environmental
Retail Case Update: Slip and Fall in the Mall – Dismissal for Inexcusable Delay
Retail Case Update: Slip and Fall in the Mall – Dismissal for Inexcusable Delay Retail Case Update: Slip and Fall in the Mall – Dismissal for Inexcusable Delay Retail Case Update: Slip and Fall in the Mall – Dismissal for Inexcusable Delay
Rachel Wood presents at CBA Criminal Justice Conference
Rachel Wood presents at CBA Criminal Justice Conference Rachel Wood presents at CBA Criminal Justice Conference
Harper Grey Hosts Ask Us Anything Employer Webinar: Exit Strategies – How to Plan For and Conduct a Termination  
Harper Grey Hosts Ask Us Anything Employer Webinar: Exit Strategies – How to Plan For and Conduct a Termination  
Norm Streu co-authors article titled “What B.C. construction firms need to know about Forced Labour Act”
Norm Streu co-authors article titled “What B.C. construction firms need to know about Forced Labour Act” Norm Streu co-authors article titled “What B.C. construction firms need to know about Forced Labour Act”
Join Harper Grey and Vancouver Tech Journal for morning coffee and donuts with founders and entrepreneurs
Join Harper Grey and Vancouver Tech Journal for morning coffee and donuts with founders and entrepreneurs Join Harper Grey and Vancouver Tech Journal for morning coffee and donuts with founders and entrepreneurs Join Harper Grey and Vancouver Tech Journal for morning coffee and donuts with founders and entrepreneurs
Nigel Trevethan shortlisted as Canadian Insurance Litigator of the Year by Benchmark Canada 2024
Nigel Trevethan shortlisted as Canadian Insurance Litigator of the Year by Benchmark Canada 2024 Nigel Trevethan shortlisted as Canadian Insurance Litigator of the Year by Benchmark Canada 2024
Prentice Durbin, Rose Keith, KC, and W. Sean Taylor to attend TAG Alliances Spring 2024 International Conference
Prentice Durbin, Rose Keith, KC, and W. Sean Taylor to attend TAG Alliances Spring 2024 International Conference
Lesley Russell presents to group of investment planners on wills and estates
Lesley Russell presents to group of investment planners on wills and estates Lesley Russell presents to group of investment planners on wills and estates
The Consequences of Sexual Harassment in the Workplace
The Consequences of Sexual Harassment in the Workplace The Consequences of Sexual Harassment in the Workplace
arrow icon

Subscribe