Alexandra Laurel White

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 defendant, Desjardins Global Asset Management Inc., brought a motion to dismiss the claim for lack of jurisdiction or, alternatively, to stay the action on the basis of forum non conveniens.

The court found that it had jurisdiction over Desjardins due to its physical presence and business operations in Ontario, distinguishing it from cases requiring a "real and substantial connection" analysis.

Regarding forum non conveniens, the court determined that Quebec was not "clearly more appropriate" than Ontario, as both forums were equally capable and convenient.

The motion was dismissed.