Jeff Galway

Appeal from summary judgment in a life insurance coverage dispute arising after the insurer denied a beneficiary's claim based on an alleged change in insurability between the insured's application and delivery of the policy.

The Court of Appeal held that s. 180(1)(c) of the Insurance Act creates a condition precedent to contract formation and is not subject to the two-year contestability limitation in s. 184(2).

The court rejected both the argument that s. 180(1)(c) operates only prospectively and the argument that the policy's incontestability clause ousted the statutory requirement.

The appeal was allowed, the summary judgment set aside, and the parties were left to determine how to litigate the insurability issue.

The appellant vendor breached agreements of purchase and sale for two development properties.

The trial judge awarded the respondent purchaser $15.5 million in damages based on lost development profits, rejecting the appellant's argument that damages should be limited to the difference between the contract price and the resale price to a third party.

The trial judge also found the respondent did not fail to mitigate its damages when its affiliates purchased other properties.

The Court of Appeal dismissed the appeal, holding that the trial judge did not err in accepting the lost development profits approach endorsed by both parties' experts, as it appropriately measured the specific economic opportunity lost.

The Court also upheld the finding that the affiliates' purchases were independent transactions that did not mitigate the loss.

The appellant insurer appealed an arbitrator's preliminary decision finding that the definition of 'minor injury' and the requirement for documented pre-existing conditions in the Statutory Accident Benefits Schedule (SABS) violated section 15 of the Charter.

The Director's Delegate allowed the appeal, holding that the arbitrator erred by deciding the constitutional questions in a factual vacuum before determining whether the claimant actually suffered from chronic pain or had an undocumented pre-existing condition.

The arbitrator's order was rescinded, and the matter was remitted to arbitration for a determination on the merits of the claim for a psychological assessment.

The Ontario Securities Commission approved a settlement agreement with Mackenzie Financial Corporation regarding its failure to comply with mutual fund sales practices under National Instrument 81-105.

Between 2014 and 2017, Mackenzie provided excessive non-monetary benefits to dealing representatives, including expensive golf events, sports tickets, and iPads, and failed to maintain adequate systems of control and supervision.

Mackenzie admitted to the breaches, cooperated with the investigation, and agreed to a reprimand, an independent consultant review, a $900,000 administrative penalty, and $150,000 in costs.

Staff of the Ontario Securities Commission alleged that the respondent had inadequacies in its systems of controls and supervision, resulting in clients paying excess fees.

The respondent self-reported the issue, cooperated with Staff, and entered into a no-contest settlement agreement.

The Commission approved the settlement, which included a compensation plan, enhanced policies, a voluntary payment of $250,000, and $20,000 for costs, finding it to be in the public interest.

The Applicant claimed entitlement to a deferred pension based on his employment with the company from 1970 to 1982, arguing he was a continuous member of the pension plan despite a brief break in service in 1975.

The Plan administrator and the Superintendent of Financial Services took the position that the Applicant received a Cash Refund Benefit when he terminated his employment in 1982, extinguishing any further entitlement.

The Financial Services Tribunal found that the Applicant failed to meet his burden of proof, concluding on a balance of probabilities that he had received a Cash Refund Benefit in 1982 and that his benefits were not locked in under the Plan or the Pension Benefits Act because he was under 45 years of age at the time of termination.

The application was dismissed.

The self-represented applicant withdrew her request for a hearing regarding spousal pension benefits while experiencing considerable distress during the proceeding.

The following day, she requested to reopen the matter and rescind her withdrawal.

The respondent and added party did not oppose the request.

The Tribunal granted the motion to rescind the withdrawal, noting the unique circumstances and the applicant's apparent distress.

The Tribunal also rescinded the permanent sealing and anonymization orders pending the recommencement of the hearing.

The added party, Canada Life, brought a motion for a confidentiality order to prevent the public disclosure of lists of deferred vested pension plan members it intended to file as evidence.

The applicant and the Superintendent consented to the motion.

The Financial Services Tribunal dismissed the motion, finding that a confidentiality order was not necessary because the privacy interests of the non-parties could be fully protected by filing redacted versions of the lists.

The Tribunal emphasized the strong public interest in open proceedings and held that consent of the parties cannot override this principle where reasonable alternative measures exist.

The applicant, a 92-year-old driver, alleged discrimination on the basis of age after being charged a higher automobile insurance premium than his younger daughter solely because he was over 80 years of age.

The respondent insurer argued that its rate classification scheme, which removed an older driver discount for those over 80, was a reasonable and bona fide practice protected by section 22 of the Human Rights Code.

The Tribunal accepted the uncontradicted expert evidence that drivers over 80 pose an elevated road safety risk and have higher loss costs per kilometre driven.

The Tribunal found that there was no practical alternative to the use of age as a risk classification factor for this group, and dismissed the application.

The Applicant requested a review of a previous Tribunal decision dismissing her application, and suggested clarifications to the decision.

The Tribunal dismissed the request for review, finding that the Applicant was merely attempting to reargue her case and had not established any material errors of fact or law.

The Tribunal also declined to issue supplementary reasons to clarify the decision, noting that it was functus officio, though it did correct minor clerical errors pursuant to its Rules of Practice and Procedure.

The applicant, a retired member of the OMERS pension plan, challenged an amendment to the plan that changed the method used to calculate inflation indexing.

The applicant argued that the amendment reduced her accrued pension benefits, contrary to section 14(1) of the Pension Benefits Act, because the new method produced a lower increase in the year it was implemented.

The Financial Services Tribunal dismissed the application, finding that the new method was actuarially equivalent to the old method and would produce the same level of inflation protection over time.

The Tribunal held that the amendment did not reduce the aggregate amount or the commuted value of the applicant's accrued pension.

At a pre-hearing conference, the Financial Services Tribunal considered applications for party status and a motion by the unrepresented applicant to convert the proceeding from an oral to a written hearing.

The Tribunal granted limited party status to two organizations but dismissed the other applications.

The Tribunal also dismissed the applicant's motion for a written hearing, finding that the presence of contested expert evidence constituted good reason to maintain an oral hearing to allow for cross-examination, despite the applicant's concerns about being unrepresented.