Personal Injury Blog

January 25, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a recent decision from the Ontario Court of Appeal (Fernandes and RBC Life Insurance) the Court of Appeal upheld a trial judge's decision to dismiss an action brought by a carpenter whose disabilty claim was denied by the disability insurer.

The insured had completed and submitted an application for disability insurance coverage which was accepted by the insurance company.   The insured later became disabled as a result of an acute case of meningitis.  After receiving his application for disability, the insurer rejected the claim on the basis that the insured had made material misrepresentations regarding his medical history on the intial questionnaire.  The trial judge ruled that the questions posed in the questionnaire that formed part of the application required the insured to disclose the identity of his attending physician, his consultation with that physician four or five months prior to the date of the insurance application regarding lumbar pain, the accurate date and purpose of his last consultation with a physician prior to the date of the insurance application, and his attendances with and the treatment received by him from an orthopaedic surgeon between 1998 and 2000.   The insurer stated that due to the misrepresentations the disability policy was void from the beginning (void ab initio) and therefore no benefits were payable as there was no valid long term disability policy in place.  The insured put forward the positon that the questions in the application were designed to create ambiguity so as to allow the insurer to void policies.  The insured also submitted that his answers on the questionnaire were accurate.  The trial judge held that the insured failed to disclose and, in some instances, misrepresented the facts relating to each of these matters.  

The Court of Appeal dismissed the insured's appeal of the trial judge's decision.  The Court of Appeal held that the non-disclosure constituted a breach of the insured's duty to disclose all material facts dealing with his insurability for long term disability benefits.  The application clearly warned the insured of the consequences of material non-disclosure.  Due to the insured's non-disclosure, the insurer could not adjust the premium charge accordingly or to narrow the range of risk that they were prepared to accept with respect to this application. 

About Paquette Travers & Deutschmann

Paquette Travers & Deutschmann serve South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Doug O’Toole focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.