required to allow appellant access to a
road on their property.
Appeal from the dismissal of appellant’s
application for an injunction to restrain
respondents from keeping a locked gate at
the entrance to a private road on their property. In the past respondents had given
some of their other neighbours, whose
properties were otherwise landlocked, a key
to the gate in exchange for a small annual
fee. The application judge found that appellant had alternate road access via a trail on
neighbouring Crown land. The judge also
granted respondents’ cross-application for a
road closing order based on a finding that
the landlocked neighbours did not have a
legal right to use the disputed road.
However, he imposed a condition requiring
respondents’ to continue to allow their landlocked neighbours to use the road.
HELD: Appeal dismissed. The application judge’s finding that the neighbouring
hiking trail was accessible using four-wheel
drive vehicles was available on the evidence
and appellant had not demonstrated that
this conclusion reflected palpable and over-riding error, or that it was unreasonable.
Further, the judge’s conclusion was entirely
in keeping with the purposes of the Road
Access Act (Ont.). With respect to the other
order, appellant had no interest in the question of whether a road closing order should
be made as against neighbouring property
owners whose properties would potentially
be landlocked. Given that respondents
could exclude appellant but not the landlocked neighbours without a road closing
order, appellant had no grounds for challenging an order that had that effect.
Limlaw v. Ryan, [2009] O.J. No.
4962, Ont. C.A., per Simmons J.A.
(Rosenberg and Cronk JJ.A. concurring), Nov. 26/09. Digest No. 2933-013
(Approx. 15 pp.)
of events, the policy provided separate
coverage against the risk of enumerated
“critical diseases”. Transverse myelitis was
not listed among them. In ordinary speech
“accident” did not include ailments proceeding from natural causes. Genital herpes was a sexually transmitted virus that
spread by sexual intercourse. The causal
chain that led to the insured’s bodily
injury was sex that transmitted the herpes
that led to transverse myelitis. Transverse
myelitis was an unexpected consequence
of the disease, but it occurred as a normal
incident or consequence of that disease.
To conclude that the insured’s acquisition
of herpes was an accident despite the
absence of any mishap or trauma other
than the acquisition of a sexually transmitted disease in the ordinary way would
have simply served to add sexually transmitted diseases to the list of critical diseases in the group policy, contrary to the
intent of the policy. It would change the
accident policy into a comprehensive
health policy.
Co-operators Life Insurance Co. v.
Gibbens, [2009] S.C.J. No. 59, S.C.C.,
per Binnie J. (McLachlin C.J. and
LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
concurring), Dec. 18/09. Digest No.
2933-014 (Approx. 22 pp.)
ment of the loss award, or part of it, to the
mortgagee. Second, the insurer had to
establish that it had no liability to the mortgagor insured. The existence of the second
precondition was a genuine issue for trial.
While the insurer pleaded the reasons why
it had denied appellants’ claim, appellants
pleaded that they had not breached the
insurance contract, the insurance policy
remained in full force and effect, and the
insurer remained liable to them for payment of the fire loss. That was a genuine
issue for trial. The motion judge erred by
granting summary judgment.
Farmers’ Mutual Insurance Co.
(Lindsay) v. Pinder, [2009] O.J. No.
4964, Ont. C.A., per Juriansz J.A.
(O’Connor A.C.J.O. and Blair J.A. concurring), Nov. 26/09. Digest No. 2933-
016 (Approx. 12 pp.)
MUNICIPAL LAW
INSURANCE (DISABILITY)
MISREPRESENTATION – The trial
judge did not err in finding that an insur-
ance policy was void ab initio on the basis
of non-disclosure of material facts.
Appeal from the dismissal of appellant
insured’s action against defendant insurer
for damages. The insured, a carpenter, completed and submitted an application for
disability insurance which was accepted by
the insurer. The insured subsequently
became disabled as a result of an acute case
of meningitis. His application for long-term
disability benefits was rejected. The insurer
took the position that the insured had materially misrepresented his medical history on
the initial questionnaire. The insurer submitted that the policy was void ab initio and
that no benefits were payable. The insured
submitted that the questions in the application were designed to create ambiguity so as
to allow the insurer to void policies. He also
submitted that his answers to the questions
were accurate. The trial judge found that
the policy was void ab initio on the basis of
non-disclosure of material facts.
HELD: Appeal dismissed. The finding
that the insured misrepresented his medical history was available to the trial judge
on the evidence. The judge implicitly
rejected the insured’s assertion that the
questions were knowingly misleading and
found that he placed his own interpretation on the questions. The non-disclosure
constituted a breach of the insured’s duty
to disclose all material facts bearing upon
his insurability for long-term disability
benefits. The application clearly warned
of the consequences of material non-disclosure. By virtue of the insured’s conduct,
certain exclusions were not issued and the
insurer was deprived of the opportunity to
narrow the ambit of the risk that it was
prepared to assume, and to adjust the premium charged accordingly.
Fernandes v. RBC Life Insurance
Co., [2009] O.J. No. 5240. Ont. C.A.,
per Cronk, Lang and Juriansz JJ.A.,
Dec. 08/09. Digest No. 2933-015
(Approx. 5 pp.)
INDEMNIFICATION – The motion
judge erred in granting summary judgment to respondent insurer where there
was a genuine issue for trial as to whether
appellants were in breach of the terms of
the insurance policy.
Appeal from an order granting respondent insurer summary judgment against
them. On Feb. 2, 2004, there was a fire at
appellants’ home. On Mar. 29, 2004, appellants submitted a claim to the insurer for
$302,412 for repairs to the house, damage
to contents, and additional living expenses.
The insurer denied their claim on the
grounds that appellants voided their policy
by failing to notify the insurer of a material
change in the risk, namely a change in the
heating system of the premises, and that
appellants made wilfully false statements
with respect to their contents claim and
their claim for alternate living expenses,
thus vitiating their right to recover. On
October 7, 2004, the insurer paid the bank
the principal balance of $97,143 on appellants’ mortgage. On Dec. 8, 2006, the insurer brought a subrogated claim against
appellants for the amount paid to the bank.
Appellants counterclaimed for a declaration
that the policy remained in full force and
effect. A motion judge granted summary
judgment against appellants and stayed
their counterclaim.
HELD: Appeal allowed. The judgement
was set aside and the application for summary judgment dismissed. There were two
preconditions to the insurer’s entitlement to
subrogation under the standard mortgage
clause. First, the insurer had to make pay-
BY-LAWS – The appellate court
upheld a municipal by-law regulating pri-
vate parking enforcement agencies.
Application by a private parking enforcement company to quash a municipal by-law.
The by-law governed private parking
enforcement agencies and recent amendments by respondent city effectively prohibited private parking enforcement companies from issuing their own tickets and
keeping revenue generated from tickets.
Property owners had to apply for a parking
enforcement license or hire a licensed agency and any parking violation notices had to
be approved by the chief of police. All revenue collected was to be remitted to the city.
Applicant argued that the by-law had been
INSURANCE
(ACCIDENT & SICKNESS)
Classifieds
ACCIDENT – The acquisition of herpes by an insured through unprotected
sex was not an “accident” under a group
insurance policy.
Appeal from a determination that
respondent insured’s paraplegia qualified as
a bodily injury occasioned solely through
external, violent and accidental means
under his group insurance policy. The
insured had unprotected sex with three
women and thereby acquired genital herpes, which in turn caused inflammation of
his spinal cord, or transverse myelitis, a rare
but known complication of herpes. The
transverse myelitis resulted in total paralysis of the insured from his mid-abdomen
down. The insured did not know that any of
the women with whom he had had sexual
intercourse had herpes, although he was
aware of the risk of contracting a sexually
transmitted disease when having unprotected sexual intercourse. The trial judge
concluded that the paralysis was “
accidental” as the insured had not expected to
become a paraplegic as a result of having
unprotected sexual intercourse. The Court
of Appeal upheld the trial judge’s decision.
HELD: Appeal allowed. The word
“accident” was an ordinary word to be
interpreted in ordinary language as it
would have been understood by the average person applying for insurance. Quite
apart from the usual concept of “accident”
as itself excluding a bodily infirmity
caused by disease in the ordinary course
MISSING HEIRS
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probate research, locators
of missing heirs. Telephone:
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Website: www.heirtrace.com
REAL ESTATE LAWYER
with a minimum of 2 years
experience is required by a busy
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area. A sense of humour and an
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R. Kaufmann at 613-966-6415.
RES JUDICATA
CONSULTANT
Opinions, co-counsel, expert
evidence. Contact the author of
The Doctrine of Res Judicata in
Canada: www.donaldlange.com
FLOURISHING OTTAWA
RE: ESTATES OF MYRA
NAJDUK AND OSTOP (OSTAP)
STANLEY NAJDUK
LAWYER REQUIRED
131 BLOOR ST. W.
COLONNADE BLDG
Beautiful office space perfect
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large window. Shared reception
area and board room call Bonnie
Gross at: 416-323-3881; or email:
bonnie@speechscience.com
CLASSIFIED AD
RE: ESTATE OF
JOHN WALTER NIXON
Anyone having executed or
prepared a Will and or Codicil
dated later than November 1985,
of the late John Walter Nixon, of
the City of Terra Cotta, who died
on July 14, 2009, is requested to
contact Karen Nixon 416-730-1678
or karen@tpscan.com
