Vrbancic v. London Life Insurance Co., (1990) 42 O.A.C. 376 (DC)

• Judge: Southey, Trainor and Rosenberg, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: December 05, 1990
• Jurisdiction: Ontario
• Citations: (1990), 42 O.A.C. 376 (DC)

Vrbancic v. London Life (1990), 42 O.A.C. 376 (DC)

MLB headnote and full text

Carmen Vrbancic (plaintiff/respondent) v. London Life Insurance Company (defendant/appellant)

(830/89)

Indexed As: Vrbancic v. London Life Insurance Co.

Ontario Court of Justice

General Division

Divisional Court

Southey, Trainor and Rosenberg, JJ.

December 5, 1990.

Summary:

A husband died of cirrhosis of the liver. His wife claimed under a life insurance policy issued by London Life. London Life refused to pay, arguing that it should be entitled to void the policy because of nondisclosure of the husband's many health related problems in the application form filled out by the London Life representative. The wife commenced an action against London Life to collect on the policy. The trial judge allowed the action holding that the wife was entitled to full payment under the policy. London Life appealed.

The Ontario Divisional Court dismissed the appeal.

Insurance - Topic 1506

The insurance contract - Nullity - Nullity ab initio - Failure to disclose - A husband applied for life insurance - The application form was filled out by a London Life representative and failed to disclose the husband's many health problems - When the husband died London Life refused to pay the widow, arguing that the policy was void for nondisclosure - The Ontario Divisional Court held that the widow was entitled to the insurance proceeds stating that "if it is the agent's duty to fill in the application form he is the agent of the company and unless the erroneous answer originated from the plaintiff, the company cannot escape liability on the policy as a result of material misrepresentations in the application form".

Insurance - Topic 2548

Applicant's duty of disclosure - Completing the application - Completion by agent of insurer - [See Insurance - Topic 1506].

Insurance - Topic 7223

Life insurance - Defences and exclusions - Preexisting illness - Nondisclosure of - [See Insurance - Topic 1506].

Cases Noticed:

Carter v. Boehm (1766), 97 E.R. 1162, refd to. [para. 14].

Newsholme Brothers v. Road Transport and General Insurance Co. Ltd., [1929] 2 K.B. 356, refd to. [paras. 15-19, 24].

Fletcher's Case, 117 U.S. 519, refd to. [para. 19].

Melnichuk v. London Life Insurance Company, [1935] 2 I.L.R. 462; affd. [1936] 3 I.L.R. 105 (C.A.), refd to. [para. 20].

Stone v. Reliance Mutual Insurance Society Ltd., [1972] 1 Lloyd's R.R. 469 (U.K.C.A.), refd to. [paras. 21-29].

Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833, folld. [paras. 21-29].

Statutes Noticed:

Insurance Act, R.S.O. 1980, c. 218, sect. 160(1) [paras. 11, 12]; sect. 161(2) [para. 11].

Counsel:

Kent E. Thomson, for the appellant, London Life Insurance Company;

R.E. Somerleigh, for the respondent, Carmen Vrbancic.

This appeal was heard before Southey, Trainor and Rosenberg, JJ., of the Ontario Divisional Court. The decision of the court was delivered by Rosenberg, J., and released on December 5, 1990.