Comey Estate, Re, 2010 ABQB 343

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 17, 2010
• Citations: 2010 ABQB 343;(2010), 497 A.R. 389 (QB)

Comey Estate, Re (2010), 497 A.R. 389 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.052

Robyn Comey (applicant) v. The Manufacturers Life Insurance Company (respondent)

(ES03 130640; 2010 ABQB 343)

Indexed As: Comey Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

September 7, 2010.

Summary:

The applicant's 37 year old husband disappeared on October 25, 2008, from the Mexican resort they were vacationing at. The applicant applied under rule 94 of the Surrogate Rules for a declaration of death, which was necessary to resolve his estate and collect $2,000,000 in life insurance obtained in August 2008. The insurer opposed the application on the ground that the court lacked jurisdiction to grant a declaration of death where life insurance was involved. The insurer argued that since the preconditions of s. 592 of the Insurance Act were not yet met, the application was premature.

The Alberta Court of Queen's Bench dismissed the application. The court had jurisdiction to grant a declaration of death under rule 94, but where the insurer contested the validity of the insurance contract, the declaration would not bind the insurer. However, the evidence (affidavits and unsworn statements) was not sufficient to establish that death was "proven or presumed". Pursuant to Surrogate Rules 64 and 66 and s. 597 of the Insurance Act, the court ordered that an action by statement of claim be filed, with full production and discovery, including the examination of third parties and the compelling of third party witnesses to attend.

Evidence - Topic 2423

Special modes of proof - Presumptions - Specific presumptions - Death - [See second Insurance - Topic 7344 ].

Insurance - Topic 7344

Life insurance - Evidence and proof - Proof of death - A husband disappeared while on vacation - His body was not found, nor was there evidence that he was still alive - The wife applied under rule 94 of the Surrogate Rules for a declaration of death, which would allow her to collect $2,000,000 in life insurance obtained two months prior to his disappearance - The insurer opposed the application on the ground that it challenged the validity of the insurance contract, which deprived the court of jurisdiction under rule 94 - The insurer argued that a declaration of death required that the preconditions of the Insurance Act be met and, since they were not, the application was premature - The Alberta Court of Queen's Bench dismissed the wife's application - On a plain reading of s. 593 of the Insurance Act, the court would not have jurisdiction to hear the application until the preliminary issue of the validity of the insurance contract was determined and, even then, the declaration could only be made after seven years had elapsed - However, rule 94 gave the court broader authority to make a declaration of death - The court held that a declaration of death could be made under rule 94 notwithstanding that the insurer challenged the validity of the insurance contract, but the declaration would not bind the insurer - However, the evidence (affidavits and unsworn statements) was not sufficient to establish that death was "proven or presumed" under rule 94 - Pursuant to Surrogate Rules 64 and 66 and s. 597 of the Insurance Act, the court ordered that an action by statement of claim be filed, with full production and discovery, including the examination of third parties and the compelling of third party witnesses to attend.

Insurance - Topic 7344

Life insurance - Evidence and proof - Proof of death - The Alberta Court of Queen's Bench referred to facts to be considered in determining whether an applicant for a declaration of death had proved that the missing person was dead: "a. the time, location and circumstances of the disappearance ... b. the extent and nature of the post-disappearance searches ... c. a prior history of fraud ... d. the presence or absence of a motive for missing person to remain alive but disappear ... e. the time between a life insurance policy being obtained and the subsequent disappearance ... f. facts suggesting the disappearance was a consequence of foul play ... g. abandonment of valuable property" - See paragraph 58.

Cases Noticed:

Phene's Trusts, Re (1870), L.R. 5 Ch. App. 139, refd to. [para. 35].

McNeil, Re (1906), 12 O.L.R. 208 (H.C.), refd to. [para. 35].

Bell, Re, [1946] O.R. 854; [1947] 1 D.L.R. 554 (C.A.), refd to. [para. 35].

Vos Estate, Re, [2008] A.R. Uned. 504; 2008 ABQB 487, refd to. [para. 36].

King's Crew Motor Cycle Club v. Manufacturers Life Insurance Co.; Blatt v. Seaboard Life Insurance Co. et al. (1990), 106 A.R. 82; 45 C.C.L.I. 131 (Q.B.), refd to. [para. 36].

Sun Life Assurance Co. of Canada v. Johnsen, [1985] I.L.R. 7282; 48 C.P.C. 113 (Ont. H.C.), refd to. [para. 45].

Darling v. Sun Life Assurance Co. of Canada, [1943] O.R. 26; [1943] 1 D.L.R. 316 (C.A.), refd to. [para. 46].

National Trust Co., Re, [1963] O.J. No. 265 (H.C.), refd to. [para. 58].

Noga v. Prudential Insurance Co. of America, [1971] I.L.R. 162; 20 D.L.R.(3d) 331 (Ont. H.C.), refd to. [para. 58].

Metro Life Insurance Co. v. Jewell, [1956] I.L.R. 143; 6 D.L.R.(2d) 213 (B.C.S.C.), refd to. [para. 58].

Stanfield v. Commercial Union Assurance Co. (1975), 17 N.S.R.(2d) 1; 19 A.P.R. 1 (T.D.), affd. (1976), 17 N.S.R.(2d) 115; 19 A.P.R. 115 (C.A.), refd to. [para. 58].

Robicheau v. Imperial Life Assurance Co. of Canada, [1979] I.L.R. 335; 27 N.S.R.(2d) 643; 41 A.P.R. 643 (T.D.), refd to. [para. 58].

Devuono v. Prudential Insurance Co. of America, [1981] I.L.R. 461; 10 A.C.W.S.(2d) 519 (Ont. H.C.), affd. [1983] I.L.R. 6278; 18 A.C.W.S.(2d) 287 (Ont. Div. Ct.), refd to. [para. 58].

Bhromsuwan v. Canada Life Assurance Co., [2000] O.T.C. 576; [2000] I.L.R. I-3872 (Sup. Ct.), revd. (2003), 168 O.A.C. 310; 45 C.C.L.I.(3d) 118 (C.A.), refd to. [para. 58].

Sherman v. National Life Assurance Co. of Canada, [1996] I.L.R. 1-3280; 130 D.L.R.(4th) 752 (Ont. Gen. Div.), varied (1996), 92 O.A.C. 19; 135 D.L.R.(4th) 255 (Div. Ct.), refd to. [para. 58].

Burgess, Re, [2004] B.C.T.C. 62; 10 C.C.L.I.(4th) 35; 2004 BCSC 62, refd to. [para. 58].

Cyr, Re - see Missing Person, Re.

Missing Person, Re, [2006] B.C.T.C. 1523; 152 A.C.W.S.(3d) 1123; 2006 BCSC 1523, refd to. [para. 58].

Statutes Noticed:

Insurance Act, R.S.A. 2000, c. I-3, sect. 587 [para. 30]; sect. 592 [para. 29]; sect. 593 [para. 30].

Rules of Court (Alta.), rule 2 [para. 50]; rule 64(1), rule 66 [para. 70]; rule 94 [para. 33].

Counsel:

Penny Frederiksen (Ackroyd LLP), for the applicant, Ms. Comey;

Blair Anderson and Mark Dron (Manulife Financial), for the respondent, Manulife Financial.

This application was heard on May 17, 2010, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on September 7, 2010.