Brisco Estate v. Canadian Premier Life Insurance Co. et al., 2012 ONCA 854

• Judge: Rosenberg, Goudge and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Tuesday April 10, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 854;(2012), 299 O.A.C. 283 (CA)

Brisco Estate v. Cdn. Premier Life (2012), 299 O.A.C. 283 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.026

The Estate of Robert Brisco, by its Executor Paul Brisco, Michael Jason Brisco, Robert Jeffrey Brisco, Kelly Brianne Brisco, and Brandon Andrew Brisco (plaintiffs/respondents) v. Canadian Premier Life Insurance Company, Heritage General Insurance Company, and Tziporah Goldberg (defendants/appellant)

(C52435; 2012 ONCA 854)

Indexed As: Brisco Estate v. Canadian Premier Life Insurance Co. et al.

Ontario Court of Appeal

Rosenberg, Goudge and Feldman, JJ.A.

December 5, 2012.

Summary:

Brisco died in an airplane crash in 2004. Canadian Premier Life Insurance Co. contended that in an August 25, 1998 telephone conversation, Brisco had cancelled an insurance policy that paid $1,000,000 if he died in a common carrier accident. The plaintiffs (Brisco's brother/executor and children) contended that Canadian Premier cancelled the policy by mistake and that Brisco intended to cancel a hospital benefits policy issued by Canadian Premier. The plaintiffs testified to statements they said Brisco made to them after August 1998 evidencing his belief that he had $2,000,000 in insurance (he also held a policy from another company that paid up to $1,000,000). The trial judge admitted Brisco's statements under the state of mind exception to the hearsay rule. Canadian Premier appealed, arguing that the evidence was inadmissible. In the alternative, it argued that there was no corroboration as required by s. 13 of the Evidence Act.

The Ontario Court of Appeal dismissed the appeal. The trial judge erred in relying on the state of mind exception to the hearsay rule. However, Brisco's statements had sufficient threshold reliability to warrant their reception under the principled approach to hearsay. Section 13 of the Evidence Act did not apply to the Brisco children who did not claim as next of kin or heirs, but under a contractual right as beneficiaries of an insurance policy. As executor, Brisco's brother was caught by s. 13 and his evidence required corroboration. However, such corroboration was available, both in the testimony of the children and in other independent evidence.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - Brisco died in an airplane crash in 2004 - The defendant insurer contended that in an August 25, 1998 telephone conversation, Brisco had cancelled an insurance policy that paid $1,000,000 if he died in a common carrier accident - The plaintiffs (Brisco's brother/executor and children) contended that the insurer cancelled the policy by mistake and that Brisco intended to cancel a hospital benefits policy issued by the insurer - The plaintiffs testified to statements they said Brisco made to them after August 1998 evidencing his belief that he had $2,000,000 in insurance (he also held a policy from another company that paid up to $1,000,000) - The trial judge admitted Brisco's statements under the state of mind exception to the hearsay rule - On appeal, the Ontario Court of Appeal stated, inter alia, that "the respondents argue they do not tender the statement to prove the truth of the contents, i.e. that the policies were purchased and were still in force, but only to prove Mr. Brisco's belief that they were in force. Viewed this way, the respondents do not need a hearsay exception at all. ... The fundamental difficulty with the respondents' claim is that any declaration can be converted to a statement of belief, tendered not for the truth of the assertion. A majority of this court has rejected that approach in Baldree" - See paragraphs 42 to 46.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 1631.1].

Evidence - Topic 1631.1

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - State of mind - Brisco died in an airplane crash in 2004 - The defendant insurer contended that in an August 25, 1998 telephone conversation, Brisco had cancelled an insurance policy that paid $1,000,000 if he died in a common carrier accident - The plaintiffs (Brisco's brother/executor and children) contended that the insurer cancelled the policy by mistake and that Brisco intended to cancel a hospital benefits policy issued by the insurer - The plaintiffs testified to statements they said Brisco made to them after August 1998 evidencing his belief that he had $2,000,000 in insurance (he also held a policy from another company that paid up to $1,000,000) - The trial judge admitted Brisco's statements under the state of mind exception to the hearsay rule - The Ontario Court of Appeal held that trial judge erred in relying on the state of mind exception to the hearsay rule - Brisco's state of mind when he made the statements was relevant only as it might shed light on what actions he took in 1998, that is, past acts, the very inference prohibited by the Supreme Court of Canada in both Smith and Starr, adopting Justice Doherty's statement of the exception in R. v. R.P. (Ont. H.C.) - The evidence was not admissible to establish that past acts or events referred to in the utterances occurred - See paragraphs 34 to 41 - However, the court concluded that Brisco's repeated statements evidencing his belief that he had two million-dollar accidental death policies were sufficiently reliable to warrant their being admitted into evidence under the principled approach to hearsay - See paragraphs 52 to 57.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim by or against estate - Corroboration requirement - [See Executors and Administrators - Topic 5701].

Executors and Administrators - Topic 5701

Actions by and against representatives - Evidence - Claim by or against estate - What constitutes corroboration - Brisco died in an airplane crash in 2004 - The defendant insurer contended that in August 1998, Brisco had cancelled an insurance policy that paid $1,000,000 if he died in a common carrier accident - The plaintiffs (Brisco's brother/executor and children) contended that the insurer cancelled the policy by mistake and that Brisco intended to cancel a hospital benefits policy issued by the insurer - The plaintiffs testified to statements they said Brisco made to them after August 1998 evidencing his belief that he had $2,000,000 in insurance (he also held a policy from another company that paid up to $1,000,000) - The insurer argued that there was no corroboration as required by s. 13 of the Evidence Act - The Ontario Court of Appeal held that s. 13 was limited to circumstances in which the interested party claimed as an heir, next of kin, executor, administrator or assignee and not simply because, coincidentally, the person happened to fall within one of those categories - Section 13 did not apply to the Brisco children who did not claim as next of kin or heirs, but under a contractual right as beneficiaries of an insurance policy - As executor, Brisco's brother was caught by s. 13 and his evidence required corroboration - However, such corroboration was available, both in the testimony of the children and in other independent evidence - See paragraphs 58 to 67.

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - [See both Practice - Topic 5194].

Practice - Topic 5194

Juries and jury trials - Charge to jury - Respecting evidence - Brisco died in an airplane crash in 2004 - The defendant insurer contended that in an August 25, 1998 telephone conversation, Brisco had cancelled an insurance policy that paid $1,000,000 if he died in a common carrier accident - The plaintiffs (Brisco's brother/executor and children) contended that the insurer cancelled the policy by mistake and that Brisco intended to cancel a hospital benefits policy issued by the insurer - The plaintiffs testified to statements they said Brisco made to them after August 1998 evidencing his belief that he had $2,000,000 in insurance (he also held a policy from another company that paid up to $1,000,000) - The trial judge admitted Brisco's statements under the state of mind exception to the hearsay rule - The insurer appealed, arguing, that the trial judge did not adequately direct the jury as to the frailties of the hearsay evidence and that, in particular, he erred in failing to include a warning that the statements could not be used to prove the truth of their content, that they could not be cross-examined upon, and that the fact that the statements had been made to multiple plaintiffs did not constitute corroboration of them - The Ontario Court of Appeal rejected the submission for several reasons - "First, the trial judge did instruct the jury that the statements went to Mr. Brisco's state of mind and specifically to his belief that he had two million-dollar policies. He then instructed the jury how that belief could be used to draw an inference as to the probability that he would have cancelled one of them on August 25, 1998. Second, there was no objection by counsel for the appellant to the trial judge's charge on the frailties of the hearsay evidence. Third, it would have been patently obvious to the jury that Mr. Brisco was not available for cross-examination. Fourth, counsel for the appellant reviewed at considerable length in his closing address to the jury the circumstances of the August 25 calls and the frailties of the statements by Mr. Brisco. Finally, in the pre-charge conference, counsel made no submissions to the trial judge concerning this issue and did not request any special instruction" - See paragraphs 68 to 71.

Practice - Topic 5194

Juries and jury trials - Charge to jury - Respecting evidence - At issue in an action was whether a life insurance policy issued to the deceased had been cancelled by mistake, and if so whether the mistake was that of the defendant insurer or the deceased - On appeal, the insurer argued that the trial judge misdirected the jury concerning the burden of proof when dealing with cancellation of insurance policies - The Ontario Court of Appeal stated that "given the repeated references to the plaintiff having the burden of proof, the impugned instructions did not result in a miscarriage of justice in respect of whether the plaintiffs proved both that the policy was cancelled by mistake and that the mistake was made by [the insurer]. The impugned directions would more likely be taken by the jury as relating to the issue of negligence rather than the factual question of who cancelled the policy. I am strengthened in that view by the fact that appellant's counsel did not object to the charge as it related to jury questions one and two" - See paragraphs 74 to 77.

Cases Noticed:

R. v. Baldree (C.) (2012), 287 O.A.C. 327; 2012 ONCA 138, leave to appeal granted [2012] S.C.C.A. No. 136, refd to. [para. 33].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 36].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 36].

R. v. R.P. (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), refd to. [para. 39].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 42].

Burns Estate v. Mellon (2000), 133 O.A.C. 83; 48 O.R.(3d) 641 (C.A.), consd. [para. 47].

Jones-Ottaway v. Bank of Montreal (2000), 275 A.R. 305; 2000 ABQB 680, consd. [para. 48].

Idaho v. Wright (1990), 497 U.S. 805, refd to. [para. 54].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 59].

St. John v. Lofland (1895), 64 N.W. 930 (N.D. Sup. Ct.), refd to. [para. 61].

Anderson v. Bradley (1921), 51 O.L.R. 94 (C.A.), refd to. [para. 64].

Sands Estate v. Sonnwald (1986), 9 C.P.C.(2d) 100 (Ont. H.C.), refd to. [para. 65].

Vokes Estate v. Palmer et al. (2012), 294 O.A.C. 342; 2012 ONCA 510, refd to. [para. 70].

Berthiaume-Palmer v. Borgundvaag (2010), 273 O.A.C. 397; 2010 ONCA 470, refd to. [para. 71].

Brochu v. Pond et al. (2002), 166 O.A.C. 353; 62 O.R.(3d) 722 (C.A.), refd to. [para. 71].

Ethier Estate v. Eaton (T.) Life Assurance Co., [1977] I.L.R. 587, refd to. [para. 76].

Statutes Noticed:

Evidence Act, R.S.O. 1990, c. E-23, sect. 13 [para. 58].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), para. 17.51 [para. 64].

Wigmore on Evidence (1978), vol. 7, p. 488, para. 2065 [para. 60].

Wigmore on Evidence (1979), vol. 2, p. 821, para. 578 [paras. 59, 61].

Counsel:

Lloyd M. Hoffer and David Seevaratnam, for the appellant, Canadian Premier Life Insurance Company;

Paul J. Pape and Nicolas M. Rouleau, for the respondents.

This appeal was heard on April 10, 2012, before Rosenberg, Goudge and Feldman, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rosenberg, J.A., and was released on December 5, 2012.