Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Insurance – Disability insurance – Obligation to disclose all material facts – Applicant making claim to respondent insurer for total disability benefits – Insurer voiding applicant’s policy following internal review – Legal test to be applied in determining whether there has been a misrepresentation by an applicant for insurance in the course of answering the insurer’s questionnaire – Whether an insured may be entitled to relief from forfeiture of the entire policy in a case where there has been a material but innocent misrepresentation.

Marital difficulties arose between the applicant physician and her husband in the spring of 2006, which eventually resulted in a breakdown of the marriage. The applicant sought professional help and was referred by a colleague to a service offered by a group of psychiatrists. On July 7, 2006, the applicant contacted Dr. Prober, one of the psychiatrists, and on July 13 and 17 she had sessions alone with him. Thereafter the applicant and her husband met jointly with Dr. Prober for 16 sessions, ending in April 2007. In November 2006, Dr. Prober referred the applicant to Dr. Leonard Schwartz for individual psychotherapy. On November 14, 2006, the applicant applied through her insurance agent for disability insurance with the respondent insurer. She answered “No” to questions concerning whether she had ever received treatment or counselling for anxiety, depression; or any psychiatric disorder and whether in the past five years she had had a consultation with a physician, psychologist or therapist not otherwise mentioned. On April 10, 2008, the applicant made a claim to the respondent for total disability benefits from March 1, 2008. The applicant and Dr. Schwartz both stated that the applicant was totally disabled due to depression and anxiety. Following an internal review, the respondent voided the policy. The applicant issued a statement of claim, claiming total disability benefits, together with mental distress. The applicant’s claim was allowed. The Court of Appeal allowed the respondent’s appeal of that decision.