Allianz Canada v. McInneis, 2003 ABQB 927

• Judge: Belzil, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 10, 2003
• Citations: 2003 ABQB 927;(2003), 350 A.R. 111 (QB)

Allianz Can. v. McInneis (2003), 350 A.R. 111 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. DE.017

Allianz Canada (plaintiff) v. Onel McInneis (defendant)

(0203 03848; 2003 ABQB 927)

Indexed As: Allianz Canada v. McInneis

Alberta Court of Queen's Bench

Judicial District of Edmonton

Belzil, J.

November 10, 2003.

Summary:

The insurer sued the defendant for negligent misrepresentation or, alternatively, fraudulent misrepresentation, seeking to recover Section B no fault accident benefits that it had paid to the defendant.

The Alberta Court of Queen's Bench allowed the action for fraudulent misrepresentation and awarded the insurer judgment for the amount of the benefits paid.

Fraud and Misrepresentation - Topic 265

Fraudulent misrepresentation (deceit) - As a defence - Insurance actions - McInneis claimed Section B benefits representing that he was working a minimum of 40 hours a week earning $10 per hour for a total of $400 to $600 per week - McInneis provided the insurer with letters and invoices from his employer to support the claim - The insurer allowed the claim and paid Section B total disability benefits - McInneis had not disclosed that he was a partner in the business and that instead of receiving payment for his labour, his labour had been credited towards his capital share in the business - The Alberta Court of Queen's Bench allowed the insurer's action for recovery of the benefits paid - McInneis did not qualify for total disability benefits where he had not been actively engaged in an occupation or employment for wages or profit - McInneis committed a fraud and made a wilfully false statement and thus forfeited any right to recovery under the policy pursuant to both the common law and s. 298 of the Insurance Act.

Insurance - Topic 3305

Payment of insurance proceeds - Actions - Defences - False statement by insured respecting claim - [See Fraud and Misrepresentation - Topic 265 ].

Insurance - Topic 3306

Payment of insurance proceeds - Actions - Defences - Failure to disclose - [See Fraud and Misrepresentation - Topic 265 ].

Insurance - Topic 4124

Automobile insurance - Accident benefits - Actively employed defined - [See Fraud and Misrepresentation - Topic 265 ].

Insurance - Topic 4557

Automobile insurance - Actions by insured against insurer - Defences - Misrepresentation by insured - On claim - [See Fraud and Misrepresentation - Topic 265 ].

Cases Noticed:

Derry v. Peek (1889), 14 App. Cas. 337 (H.L.), refd to. [para. 46].

Petersen v. Bannon et al. (1993), 37 B.C.A.C. 26; 60 W.A.C. 26 (C.A.), refd to. [para. 59].

Continental Insurance Co. v. Dalton Cartage Co. et al., [1982] 1 S.C.R. 164; 40 N.R. 135; 25 C.P.C. 72; 131 D.L.R.(3d) 559, refd to. [para. 64].

Gilchuk et al. v. Insurance Corp. of British Columbia (1993), 30 B.C.A.C. 317; 49 W.A.C. 317 (C.A.), refd to. [para. 66].

Authors and Works Noticed:

Brown, Craig, and Menezes, Julio, Insurance Law in Canada (4th Ed. 2002), para. 9.5 [para. 63].

Counsel:

Gerald A. Smith (Dean Duckett Amelio), for the plaintiff;

John C. Davidson, for the defendant.

Belzil, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this action on October 30 and 31, 2003, and delivered the following reasons for judgment on November 10, 2003.