Frank E. Van Dyke

The insurer appealed a judgment for the insured in an action for benefits under a sickness and accident policy.

The trial judge instructed the jury that because the insurer had accepted the claim and made some payments, it bore the legal burden of proof to establish that the insured was not totally disabled.

The Court of Appeal found this instruction to be an error, holding that the insured bore the legal burden of proof.

However, the appeal was dismissed as the misdirection did not result in any substantial wrong or miscarriage of justice.

The plaintiffs brought an action for damages for personal injuries allegedly suffered on a Canadian Forces base.

The defendants successfully moved for summary judgment on the basis that the action was statute-barred by the six-month limitation period in s. 269(1) of the National Defence Act.

The plaintiffs appealed, arguing that the discoverability principle applied because the injured plaintiff had received erroneous advice from the Canadian Forces and his Pensions Advocate that he could not sue while his military pension claim was pending.

The Court of Appeal allowed the appeal, finding that the uncontradicted evidence of this erroneous advice raised a genuine issue for trial regarding the commencement of the limitation period.