A. Leigh McFadden

The appellant insurer appealed a judgment declaring a life insurance policy valid, arguing fraudulent misrepresentation by the insured regarding a criminal conviction.

The policy had been in force for over five years, triggering an incontestability clause under the Insurance Act, requiring the insurer to prove fraud.

The Court of Appeal dismissed the insurer's appeal and motion to admit fresh evidence.

While acknowledging the application judge erred in disregarding admissions of the conviction, the Court found this error did not alter the ultimate conclusion that the insurer failed to prove the misrepresentation was made with the intent required for civil fraud (knowledge or recklessness), concluding it was likely due to mistake or negligence.

The applicant, beneficiary of his deceased father's life insurance policy, sought a declaration that the policy was valid and payable.

The respondent insurer refused the claim, alleging the deceased fraudulently misrepresented his criminal history on the application by denying any convictions in the preceding three years.

The court found the insurer failed to prove actual fraud on a balance of probabilities, as the evidence of the conviction date was unreliable and there was no proof of intent to deceive.

The policy was declared valid and binding.