Gavin Wood Freitag

The appellants sought a declaration that their insurer had a duty to defend and indemnify them in an underlying action for misrepresentation related to a property sale.

The application judge dismissed the application, finding no duty to defend.

On appeal, the Court of Appeal found the application judge erred in relying on an "entire agreement" clause to deny coverage for negligent misrepresentation claims.

However, the Court upheld the dismissal on an alternative ground: the appellants' failure to provide prompt notice of the claim to the insurer, which constituted a breach of the policy and was not eligible for relief against forfeiture.

This action arose from a motor vehicle accident.

The primary issue at trial was whether the vehicle owner, Crystal Vincent, had given implied consent to Riley Sabourin, an unlicensed driver, to possess her vehicle at the time of the accident.

The court considered the long-term relationship between the defendants, Ms. Vincent's knowledge of Mr. Sabourin's past unauthorized driving, her failure to secure keys, and her general admonishments rather than explicit prohibitions.

The court found that Ms. Vincent failed to discharge her onus to prove lack of implied consent, concluding that Mr. Sabourin was justified in deeming he had implied consent.