Fleet et al. v. Federated Life Insurance Co. of Canada, (2008) 269 N.S.R.(2d) 138 (CA)

• Judge: Saunders, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 09, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 269 N.S.R.(2d) 138 (CA);2008 NSCA 90

Fleet v. Federated Life Ins. (2008), 269 N.S.R.(2d) 138 (CA);

    860 A.P.R. 138

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.021

Federated Life Insurance Company of Canada (appellant/applicant) v. David Richard K. Fleet and Paul Bellefontaine (respondents)

(CA301717; 2008 NSCA 90)

Indexed As: Fleet et al. v. Federated Life Insurance Co. of Canada

Nova Scotia Court of Appeal

Saunders, J.A.

October 9, 2008.

Summary:

Federated's agent convinced his clients (husband and wife) to cancel their existing life insurance in favour of $150,000 life insurance policies from Federated. The wife died less than two years later. She suffered from high blood pressure and chronic dyspepsia. Federated denied coverage on the ground that the wife materially misrepresented her health status on the application. The agent did not show the wife her application and signed her name to the application, contrary to Federated policy and without the wife's authorization. The agent answered "no" to all medical questions after asking only a general question as to whether their health was "about the same".

The Nova Scotia Supreme Court, in a judgment reported (2008), 267 N.S.R.(2d) 1; 853 A.P.R. 1, held that the husband, as beneficiary, was entitled to the $150,000 under his wife's policy. Federated failed to prove a material misrepresentation by the wife. The spouses were not to be penalized by Federated's agent's defalcation. Federated's cross- claim against the agent for $150,000 was allowed. Federated appealed and applied to stay execution of the judgment pending appeal.

The Nova Scotia Court of Appeal, per Saunders, J.A., dismissed the application. Federated failed to establish irreparable harm.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - Federated's agent convinced his clients (husband and wife) to cancel their existing life insurance in favour of $150,000 life insurance policies from Federated - The wife died less than two years later - She suffered from high blood pressure and chronic dyspepsia - Federated denied coverage on the ground that the wife materially misrepresented her health status on the application - The agent did not show the wife her application and signed her name to the application, contrary to Federated policy and without the wife's authorization - The agent answered "no" to all medical questions after asking only a general question as to whether their health was "about the same" - It was unclear whether the husband knew the full extent of his wife's medical status - He told the agent that her health was the same as far as he knew - There was no credible evidence as to whether the wife failed to disclose material information about her medical condition, as she was dead and the agent was not credible - The trial judge held that the husband, as beneficiary, was entitled to the $150,000 under his wife's policy - Federated failed to prove a material misrepresentation by the wife - The spouses were not to be penalized by Federated's agent's defalcation - Federated appealed and applied to stay execution of the judgment pending appeal - The Nova Scotia Court of Appeal, per Saunders, J.A., dismissed the application - There were arguable issues on the appeal but Federated failed to establish irreparable harm - Any concern about recovering the judgment, if Federated were successful on appeal, was speculative - Further, there were no "special circumstances" justifying a stay.

Cases Noticed:

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 15].

Wright v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (2006), 240 N.S.R.(2d) 166; 763 A.P.R. 166; 2006 NSCA 6, refd to. [para. 15].

MacPhail v. Desrosiers et al. (1998), 170 N.S.R.(2d) 145; 515 A.P.R. 145 (C.A.), refd to. [para. 16].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général) (1994), 164 N.R. 1; 60 Q.A.C. 241 (S.C.C.), refd. to [para. 17].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 17].

Lienaux et al. v. Toronto-Dominion Bank (1994), 137 N.S.R.(2d) 150; 391 A.P.R. 150 (C.A.), refd to. [para. 19].

Austin et al. v. Habitat Development Ltd. et al. (1992), 109 N.S.R.(2d) 290; 297 A.P.R. 290 (C.A.), refd to. [para. 19].

Cape Breton Development Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 262 N.S.R.(2d) 112; 839 A.P.R. 112 (C.A.), refd to. [para. 21].

Counsel:

Amy Higgins, for the appellant;

David A. Grant, for the respondent, David Richard K. Fleet;

Jeff Aucoin, for the respondent, Paul Bellefontaine.

This application was heard on October 9, 2008, at Halifax, N.S., in Chambers before Saunders, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment orally on October 9, 2008.