James P. Cavanagh

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 appellant, a 16-year-old, was rendered paraplegic after falling from a tree in a municipal park.

The trial judge dismissed the action, finding the municipality's monitoring of the park was reasonable and the danger of falling from a tree was obvious.

The Court of Appeal upheld the decision, confirming there is no duty to warn of such an obvious and self-evident danger.

The Court also dismissed the appeal regarding costs awarded against the Family Law Act claimants, finding no error in principle in the trial judge's discretion.

The insured was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The trial judge found the termination notice was inadequate and ordered ongoing benefits.

On appeal, the Court of Appeal held that an inadequate notice does not entitle an insured to benefits in perpetuity; the insured must still prove ongoing disability.

The Court upheld the trial judge's finding that the insured was no longer disabled by the fall of 1998.

However, the Court agreed that the insured's transition from part-time to full-time work shortly before the accident entitled her to a higher benefit calculation under s. 9(2) of the SABS.

The plaintiffs appealed the trial judge's assessment of damages arising from a motor vehicle accident, arguing the judge erred in finding the main plaintiff failed to mitigate her damages.

The defendants cross-appealed the damages assessment and appealed the order adding the Police Services Board as a defendant, as well as the trial costs order.

The Court of Appeal dismissed the appeals regarding the addition of the Board and the damages assessments.

However, the Court allowed the defendants' costs appeal, finding the trial judge erred by comparing the defendants' settlement offers to the gross damages assessment rather than the net judgment after statutory deductions.

The costs order was varied to award the plaintiffs their disbursements throughout but no legal fees after the date of the defendants' second offer.