Wigmore v. Canadian Surety Co. et al., (1996) 144 Sask.R. 285 (CA)

• Judge: Bayda, C.J.S., Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 13, 1996
• Jurisdiction: Saskatchewan
• Citations: (1996), 144 Sask.R. 285 (CA)

Wigmore v. Cdn. Surety Co. (1996), 144 Sask.R. 285 (CA);

    124 W.A.C. 285

MLB headnote and full text

Rodney Wigmore and Marjorie Wigmore (plaintiffs/respondents) v. The Canadian Surety Company and D.A. Scrivener Adjusters Ltd., doing business in the name and trade style of C.C.L. Claims Canada Scrivener Adjusters and Richard Overend (defendants/appellants)

(Appeal File No. 1959)

Indexed As: Wigmore v. Canadian Surety Co. et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Lane and Jackson, JJ.A.

August 13, 1996.

Summary:

Rodney and Marjorie Wigmore were joint owners of a home insured by Canadian Surety. Canadian Surety declined to pay a claim for flood damage on the ground that Rodney Wigmore completed a fraudulent interim proof of loss. The Wigmores sued Canadian Surety for breach of contract of insurance. The Wigmores also sued the insurance adjusters on the ground they breached their duty of care as independent insurance adjusters.

The Saskatchewan Court of Queen's Bench, in a decision reported 124 Sask.R. 113, dismissed Rodney Wigmore's claim. The court allowed Marjorie Wigmore's claim and gave judgment for damages against Canadian Surety for the amount of her proof of loss. Marjorie Wigmore's claim against the insurance adjusters was dismissed because she suffered no loss as a conse­quence of their actions. Canadian Surety appealed.

The Saskatchewan Court of Appeal dis­missed the appeal.

Agency - Topic 323

Creation of relations - Parties - Who constitutes an agent - Where the insured were joint owners, Canadian Surety required only one party to execute an interim proof of loss - A husband sub­mitted a fraudulent interim proof of loss - Canadian Surety denied the claim on the ground that statutory condition no. 7 stated that the fraud vitiated the claim of the person making the declaration - The wife submitted that the husband's fraud did not vitiate her claim - Canadian Surety claimed the husband acted as her agent - The wife submitted that statutory condition no. 8 of the Insurance Act allowed an agent to act only when the insured was absent or unable to act - The Saskatchewan Court of Appeal ruled that even if the husband was acting as the wife's agent, his authority did not extend to fraudulent conduct - See para­graphs 43 to 49.

Insurance - Topic 3305

Payment of insurance proceeds - Actions - Defences - False statement by insured respecting claim - Rodney and Marjorie Wigmore were joint owners of a home insured by Canadian Surety - Where the insured were joint owners, Canadian Surety required only one party to execute an interim proof of loss - Rodney Wig­more submitted an interim proof of loss which included a claim for carpeting invoiced at $8,273 - The invoice had been altered from $6,273 - Canadian Surety denied the claim on the ground that statu­tory condition no. 7 stated that fraud viti­ated the claim of the person making the declaration - The Wigmores sued to enforce the policy - The trial court dis­missed Rodney Wigmore's claim but al-lowed Marjorie Wigmore's claim for the whole of the loss - The Saskatchewan Court of Appeal dismissed Canadian Sur­ety's appeal - See paragraphs 50 to 61.

Insurance - Topic 3305

Payment of insurance proceeds - Actions - Defences - False statement by insured respecting claim - [See Agency - Topic 323 ].

Insurance - Topic 3324

Payment of insurance proceeds - Actions - Defences - Default by one of two insureds - [See first Insurance - Topic 3305 ].

Insurance - Topic 6052

Fire insurance - Defences - Fraud or false statements - Proof of loss - [See first Insur­ance - Topic 3305 ].

Insurance - Topic 6052

Fire insurance - Defences - Fraud or false statements - Proof of loss - Rodney and Marjorie Wigmore were joint owners of a home insured by Canadian Surety - Where the insured were joint owners, Canadian Surety required only one party to execute an interim proof of loss - Rodney Wig­more submitted a fraudulent interim proof of loss - Cana­dian Surety denied the claim under statutory condition no. 7 (i.e., fraud) - Marjorie Wigmore sub­mitted that the policy did not make it sufficiently clear that the fraud by one co-owner would vitiate the coverage of the innocent co-owner - Cana­dian Surety also submitted that, under the common law duty of "utmost good faith", Rodney's fraud defeated Mar­jorie's claim because their interests were the same - The Saskatchewan Court of Appeal held that even if statutory condi­tion no. 7 was sup­plemented by the com­mon law duty of utmost good faith, it did not defeat Mar­jorie's claim because in­demnifi­ca­tion under the policy was several, not joint - See para­graphs 16 to 42.

Cases Noticed:

Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445; 94 N.R. 261, consd. [para. 17].

Anastasov v. Halifax Insurance Co. (1987), 26 C.C.L.I. 7 (B.C.C.A.), dist. [para. 24].

Britton v. Royal Insurance Co. (1866), 4 F. & F. 905; 176 E.R. 843 (N.P.), refd to. [para. 25].

Bains et al. v. Yorkshire Insurance Co. (1963), 38 D.L.R.(2d) 417 (B.C.S.C.), refd to. [para. 28].

Wiens et al. v. Fireman's Fund Insurance Co. of Canada, [1981] I.L.R. 1-1423 (B.C.S.C.), refd to. [para. 28].

Kolta et al. v. State Farm Fire and Casu­alty Co. et al., [1981] I.L.R. 1-1362 (Ont. H.C.), refd to. [para. 28].

Siountres et al. v. United States Fire In­surance et al. (1981), 128 D.L.R.(3d) 493 (Ont. H.C.), refd to. [para. 28].

Walsh v. Canadian General Insurance Co. (1989), 77 Nfld. & P.E.I.R. 118; 240 A.P.R. 118; 60 D.L.R.(4th) 358 (Nfld. C.A.), refd to. [para. 28].

Rankin v. North Waterloo Farmers Mutual Insurance Co. (1979), 100 D.L.R.(3d) 564 (Ont. C.A.), refd to. [para. 28].

Higgins v. Orion Insurance Co. et al. (1985), 8 O.A.C. 259; 10 C.C.L.I. 139 (C.A.), refd to. [para. 28].

Inland Kenworth Ltd. v. Insurance Corp. of British Columbia (1990), 43 B.C.L.R.(2d) 95 (S.C.), refd to. [para. 33].

Valcourt v. Saskatchewan Govern­ment Insurance (1986), 47 Sask.R. 129; 18 C.C.L.I. 189 (Q.B.), dist. [para. 41].

Bank of Montreal v. Young et al. (1966), 60 D.L.R.(2d) 220 (B.C.S.C.), refd to. [para. 47].

Statutes Noticed:

Saskatchewan Insurance Act, R.S.S. 1978, c. S-26, sect. 128, stat. cond. 7 [para. 8]; stat. cond. 8 [para. 44].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 1, p. 789 [para. 56].

Fridman, G.H.L., The Law of Agency (6th Ed. 1990), p. 76 [para. 47].

Ivamy, E.R.H., General Principles of In­surance Law (5th Ed. 1986), p. 119 [para. 23].

Rendall, James A., Annotation to Ana­stasov v. Halifax Insurance Co. (1987), 26 C.C.L.I. 8 [para. 35].

Rendall, James A., Annotation to Wigmore v. Canadian Surety Co. et al. (1995), 27 C.C.L.I.(2d) 98 [para. 58].

Ziff, Bruce H., Principles of Property Law (1993), p. 268 [para. 57].

Counsel:

D. Gerrand, for the appellant, Canadian Surety Co.;

G. Semenchuck, Q.C., for the appellants, D.A. Scrivener Adjusters Ltd. and Richard Overend;

A. Zborosky and D. Tapp, for the respon­dents.

This appeal was heard on September 12, 1995, before Bayda, C.J.S., Lane and Jack­son, JJ.A., of the Saskatchewan Court of Appeal.

On August 13, 1996, Jackson, J.A., delivered the following judgment for the Court of Appeal.