Novak v. Co-Operative Fire and Casualty Co., (1981) 36 N.B.R.(2d) 569 (CA)

JudgeRyan, Richard and Stratton, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateOctober 27, 1981
JurisdictionNew Brunswick
Citations(1981), 36 N.B.R.(2d) 569 (CA)

Novak v. Co-op Fire (1981), 36 N.B.R.(2d) 569 (CA);

    36 R.N.-B.(2e) 569; 94 A.P.R. 569

MLB headnote and full text

Sommaire et texte intégral

Novak v. Co-Operative Fire and Casualty Company

(No. 204/80/CA)

Indexed As: Novak v. Co-Operative Fire and Casualty Co.

Répertorié: Novak v. Co-Operative Fire and Casualty Co.

New Brunswick Court of Appeal

Ryan, Richard and Stratton, JJ.A.

October 27, 1981.

Summary:

Résumé:

This case arose out of the plaintiff's claim for the proceeds under fire insurance policy on a house. The plaintiff's son was the owner and occupant of the house and was in severe financial difficulty. As part of a scheme to raise money on the house for business purposes, the son conveyed the house to the plaintiff for no consideration and transferred his interest under the insurance policy on the house to him. The plaintiff then gave a power of attorney to his son authorizing him to mortgage the house. Subsequently, the house was destroyed by a fire set by the son, who was convicted of arson. The plaintiff claimed for the proceeds under the policy.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported 32 N.B.R.(2d) 91; 78 A.P.R. 91, allowed the action in part and held that the plaintiff was entitled to recover the proceeds for the value of the house, but not the contents. The insurer appealed.

The New Brunswick Court of Appeal, Richard, J.A., dissenting, dismissed the appeal.

Evidence - Topic 2059

Special modes of proof - Admissions - Extra-judicial admissions - Materiality - The New Brunswick Court of Appeal held that the weight to be given an admission is a matter for the trial judge and that the effect of an admission may always be contradicted or explained away by its maker - See paragraphs 22 to 24.

Gifts - Topic 502

Gifts inter vivos - General principles - Intention required - The New Brunswick Court of Appeal held that the effectiveness of a gift was not affected by the donee regarding the gift as a temporary one - See paragraph 59.

Insurance - Topic 5752

Fire insurance - Insurable interest - Ownership - A home owner in business difficulty deeded the house to his father without consideration to raise money on the house - Subsequently, the father gave the owner a power of attorney authorizing him to mortgage the property - The owner transferred his interest under the house insurance policy to his father and burned the house - The New Brunswick Court of Appeal held that the father had an insurable interest and was entitled to bring an action for the insurance proceeds - See paragraphs 12 to 18, 40 to 61.

Insurance - Topic 6052

Fire insurance - Defences - False statements - Proof of loss - A home owner in financial difficulty deeded the house to his father as part of a scheme to raise money on the house - After the owner burned the house the owner's solicitor sent a completed proof of loss for the house and contents (which were not conveyed to the father) for his signature - The insurer claimed that the father fraudulently or falsely stated in the proof of loss that he was the owner of the insured property - The New Brunswick Court of Appeal affirmed that the father did not make fraudulent or false statements in the proof of loss - See paragraph 20.

Cases Noticed:

Marks v. Commonwealth Insurance Co. (1974), 42 D.L.R.(3d) 481, affd. 42 D.L.R.(3d) 487, dist. [para. 13], appld. [para. 70].

Wandlyn Motels Ltd. and Llewellyn v. Commerce General Insurance Co. et al., [1970] S.C.R. 992; 3 N.B.R.(2d) 6, appld. [para. 15].

Aqua-Land Exploration Ltd. v. Guarantee Company of North America et al., [1964] 2 O.R. 181, revd. [1966] 1 S.C.R. 133, appld. [para. 16].

Hoar's Estate et al. v. Hudson Bay Insurance Co. (1980), 30 N.B.R.(2d) 351; 70 A.P.R. 351, refd to. [para. 20].

Cunningham et al. v. Security Mutual Casualty Co. (1979), 28 N.B.R.(2d) 413; 63 A.P.R. 413, refd to. [para. 40].

Guarantee Company of North America et al. v. Aqua-Land Exploration Ltd., [1966] S.C.R. 133, refd to. [para. 43].

Wetston v. Commercial Union Assurance Group (1977), 28 N.S.R.(2d) 285; 43 A.P.R. 285; 81 D.L.R.(3d) 518, affd. (1978), 29 N.S.R.(2d) 271; 45 A.P.R. 271; 91 D.L.R.(3d) 434 (N.S.C.A.), consd. [para. 47].

Dewar v. Dewar, [1972] 2 All E.R. 728, appld. [para. 59].

Stock v. Inglis (1883-84), 12 Q.B.D. 564 (C.A.), appld. [para. 61], consd. [para. 80].

Walsh v. Walsh, [1948] 1 D.L.R. 630, consd. [para. 68].

Statutes Noticed:

Insurance Act, R.S.N.B. 1973, c. I-12, sect. 127, Stat. Cond. 2 [para. 42].

Registry Act, R.S.N.B. 1973, c. R-6, sect. 34 [para. 58].

Statute of Elizabeth, 1571 [para. 19].

Authors and Works Noticed:

Appleman on Insurance Law and Practice, vol. 4, pp. 26, 35-37 [para. 80].

Cross on Evidence (4th Ed.), pp. 444-445 [para. 22].

Halsbury's Laws of England (4th Ed.), vol. 17, p. 50, para. 63 [para. 23], vol. 20, paras. 1, 2 [para. 59].

MacGillivray and Parkington on Insurance Law [paras. 43, 80].

Welford and Otter Barry's Fire Insurance (4th Ed. 1948), pp. 22-23 [para. 15].

Counsel:

William McNichol and Peter Blair, for the appellant, applicant;

Eugene J. Mockler and Carole McLennan, for the respondent.

This case was heard on March 30, 1981 at Fredericton, N.B., before RYAN, RICHARD and STRATTON, JJ.A., of the New Brunswick Court of Appeal.

On October 27, 1981 the judgment of the Court of Appeal was delivered and the following opinions were filed:

RYAN, J.A. - see paragraphs 1 to 29;

STRATTON, J.A. - see paragraphs 30 to 62;

RICHARD, J.A., dissenting - see paragraphs 63 to 82.

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