Duong v. NN Life Insurance Co. of Canada, (2001) 141 O.A.C. 307 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Catzman, Doherty and Simmons, JJ.A.
• Citation: (2001), 141 O.A.C. 307 (CA)
• Date: 07 February 2001

Duong v. NN Life (2001), 141 O.A.C. 307 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. FE.092

Thuan Duong (plaintiff/appellant) v. NN Life Insurance Company of Canada (defendant/respondent)

(C32606)

Indexed As: Duong v. NN Life Insurance Co. of Canada

Ontario Court of Appeal

Catzman, Doherty and Simmons, JJ.A.

February 27, 2001.

Summary:

The plaintiff sued an insurer for $100,000 for breach of a life insurance policy respect­ing Nguyen, his common law spouse who died of cancer in 1993. The insurer refused to pay the claim on the grounds of fraudu­lent misrepresentations and/or failure to disclose facts within their knowledge as to the medical condition of Nguyen that were material to the insurance (Insurance Act, ss. 183, 184).

The Ontario Superior Court, in a decision reported 100 O.T.C. 115, dismissed the action. The court was not satisfied that the plaintiff and Nguyen's statements were made fraudulently. However, it held that four of the answers in the application for insurance were false and amounted to a failure to disclose material facts. The plaintiff ap­pealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 2442

Applicant's duty of disclosure - Materiality - Facts known to applicant - The plaintiff sued an insurer for breach of a life in­surance policy respecting Nguyen, his common law spouse who died of cancer in 1993 - The trial judge dismissed the action finding that four of the answers in the application for insurance were false and amounted to a failure to disclose material facts - The Ontario Court of Appeal dis­missed the plaintiff's appeal - There was evidence supporting the finding that the four answers were material misrepresen­tations - See paragraphs 1 to 4.

Insurance - Topic 2446

Applicant's duty of disclosure - Materiality - Material matters - [See Insurance - Topic 2442 ].

Insurance - Topic 3306

Payment of insurance proceeds - Actions - Defences - Failure to disclose - [See In­surance - Topic 2442 ].

Insurance - Topic 3307

Payment of insurance proceeds - Actions - Defences - Misrepresentation in application - [See Insurance - Topic 2442 ].

Insurance - Topic 3310

Payment of insurance proceeds - Actions - Defences - Effect of acts of affirmation of contract by insurer (estoppel) - The plain­tiff sued an insurer for breach of a life insurance policy respecting his common law spouse who died in 1993 - In 1994, the insurer denied liability under the policy in issue (and a second one) but continued to accept premiums until December 1995 (after the action was commenced and six months after delivery of its statement of defence) - The plaintiff argued that the insurer was estopped from avoiding its obligation to pay under the policy because it had continued to accept and to retain premiums and thereby admitted that the policy continued to be in effect - The trial judge rejected the argument, holding that he was not satisfied that the insurer con­tinued to treat the policy as valid and subsisting - The Ontario Court of Appeal dismissed the plaintiff's appeal - See para­graphs 5 to 11.

Insurance - Topic 7221

Life insurance - Defences and exclusions - General - [See Insurance - Topic 2442 ].

Counsel:

Thomas G. Conway, for the appellant;

John Connolly, for the respondent.

This appeal was heard on February 7, 2001, before Catzman, Doherty and Sim­mons, JJ.A., of the Ontario Court of Appeal, who released the following decision on February 27, 2001.